NO. A16-0283 August 29, 2016
STATE OF MINNESOTA IN SUPREME COURT ______________________________ In re Timothy Leslie, Dakota County Sheriff Appellant, State of Minnesota, vs. John David Emerson, Respondent ___________________________ BRIEF OF AMICUS CURIAE, AMERICAN CIVIL LIBERTIES UNION OF MINNESOTA ___________________________ JAMES C. BACKSTROM Dakota County Attorney
OFFICE OF THE MINNESOTA APPELLATE PUBLIC DEFENDER
PHILLIP D. PROKOPOWICZ Assistant Dakota County Attorney Attorney Registration # 146924
CATHRYN MIDDLEBROOK Chief Appellate Public Defender Registration # 162425 540 Fairview Avenue North, Suite 300 St Paul, MN 55104 Telephone: 651-201-6700
HELEN R. BROSNAHAN Assistant Dakota County Attorney Attorney Registration # 0266887 ATTORNEYS FOR APPELLANT
ATTORNEYS FOR RESPONDENT
LORI SWANSON Minnesota Attorney General
AMERICAN CIVIL LIBERTIES UNION OF MINNESOTA
MICHAEL EVERSON Attorney Registration # 0388310 Assistant Attorney General 445 Minnesota Street, Suite 1800 St. Paul, MN 55101
TERESA NELSON Attorney Registration # 269736 Legal Director 2300 Myrtle Avenue, Suite 1800 St. Paul, MN 55114
ATTORNEYS FOR AMICUS CURIAE MINNESOTA ATTORNEY GENERAL
ATTORNEY FOR AMICUS CURIAE AMERICAN CIVIL LIBERTIES OF MINNESOTA
TABLE OF CONTENTS Page TABLE OF CONTENTS………………………………………………………. 2 STATEMENT OF AUTHORITIES……………………………………………
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INTRODUCTION AND STATEMENT OF AMICUS CURIAE……………..
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STATEMENT OF THE CASE AND FACTS………………………………….
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ARGUMENT…………………………………………………………………...
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I.
Taking DNA from arrestees pre-conviction violates the Minnesota Constitution…………………………………………………………….
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A. The Supreme Court’s decision in Maryland v. King was a sharp departure in established Fourth Amendment jurisprudence……….
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B. The Supreme Court reduced the protections afforded persons not convicted of a crime by allowing compulsory DNA collection for the first time in King………………………………………………..
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C. The Supreme Court’s ruling in King does not apply to Minnesota’s statute and does not adequately protect the basic rights and liberties of Minnesotans………………………………………………………
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Compulsory DNA testing implicates significant privacy interests……..
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A. DNA contains significant amounts of data about an individual and the BCA is required to preserve the biological specimens, not just the DNA profiles……………………………………………
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B. Partial matching and familial searching are examples of the intrusiveness of DNA testing………………………………………..
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CONCLUSION………………………………………………………………….
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II.
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STATEMENT OF AUTHORITIES Page MINNESOTA CONSTITUTIONAL PROVISIONS Minn. Const. Art. 1, §10…………………………………………………………
Passim
MINNESOTA STATUTES Minn. Stat. § 299C.105…………………………………………………………..
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MINNESOTA DECISIONS Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183(Minn. 1994)………………. In re Welfare of C.T.L., 722 N.W.2d 484, Minn. Ct. App. 2006)………………. In re Welfare of M.LM., 813 N.W.2d 26 (Minn. 2012)……………………......... Jarvis v. Levine, 418 N.W.2d 139 (Minn. 1988)………………………………... O’Connor v. Johnson, 287 N.W.2d 400 (Minn. 1979)…………………………. State v. Cripps, 533 N.W.2d 388 (Minn.1995)…………………………………. State v. Diede, 795 N.W.2d 836 (Minn. 2011)…………………………………. State v. Johnson, 813 N.W.2d 1 (Minn. 2012)………………………………….. State v. Larsen, 650 N.W.2d 144 (Minn. 2002)………………………………… State v. McMurray, 860 N.W.2d 686 (Minn. 2015)……………………………. State v. Muzik, 379 N.W.2d 599 (Minn. App. 1985)…………………………… Welfare of E.D.J., 502 N.W.2d 779 (Minn.1993)………………………………
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FOREIGN DECISIONS Camara v. Mun. Court of City, 387 U.S. 523, 528 (1967)……………………… Chandler v. Miller, 520 U.S. 305, 313 (1997)………………………………….. Indianapolis v. Edmond, 531 U.S. 32, 38 (1995)………………………………. Kyllo v. United States, 533 U.S. 27, 37 (2001)………………………………….
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INTRODUCTION AND STATEMENT OF AMICUS CURIAE 1 The American Civil Liberties Union is a nationwide, nonprofit, nonpartisan organization with approximately 300,000 members dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civil rights laws. The American Civil Liberties Union of Minnesota (ACLU-MN) is one of its statewide affiliates. Since its founding in 1952, the ACLU-MN has engaged in constitutional litigation, both directly and as amicus curiae, in a wide variety of cases. Among those rights that the ACLU-MN has litigated to protect is the right to be free from unreasonable searches under the Fourth Amendment to the U.S. Constitution and Article I § 10 of the Minnesota Constitution. The ACLU-MN believes that there are few more vaunted American values than the right to privacy. The most intimate details of our lives and those related to us are contained in our genetic make-up and DNA. As such, the ACLU-MN respectfully urges this court to hold that Article I, Section 10 of the Minnesota Constitution prohibits the taking of biological DNA specimen from people not convicted of a crime.
STATEMENT OF THE CASE AND FACTS The ACLU-MN concurs with the Respondent’s Statement of the Case and Facts and adopts and incorporates the facts set forth in the Brief of the Respondents.
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Counsel certifies that this brief was authored by listed counsel for amicus curiae ACLU of Minnesota together with Colin O’Donovan of Faegre Baker Daniels, LLP. No other person or entity made any monetary contribution to the preparation or submission of the brief. This brief is filed on behalf of the American Civil Liberties Union of Minnesota, which was granted leave to participate as amicus curiae by this Court’s Order dated June 17, 2016.
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ARGUMENT I. Taking DNA from arrestees pre-conviction violates the Minnesota Constitution. The primary purpose of the Article I, Section 10 of the Minnesota Constitution is to safeguard the privacy of individuals against arbitrary invasions by governmental officials. State v. Muzik, 379 N.W.2d 599, 601 (Minn. App. 1985); see also Camara v. Mun. Court of City and Cnty. of San Francisco, 387 U.S. 523, 528 (1967). Compelling the taking of DNA samples from arrestees not convicted of a crime uniquely burdens those whom Article 1, Section of the Minnesota Constitution is intended to protect: people innocent of the State’s accusations. The Minnesota Supreme Court has frequently distinguished the greater protections provided by Article I, Section 10 than the Fourth Amendment, despite the nearly identical language. In doing so, this Court has repeatedly found there is a principled basis for departing from the minimum protections afforded by the Fourth Amendment. A principled basis for providing greater protection under the Minnesota Constitution than its federal analogue exists where (1) the United States Supreme Court has made a “sharp or radical departure from its previous decisions;” (2) the Supreme Court has reduced or “retrenched” on a protection afforded by the Bill of Rights; or (3) the Supreme Court’s precedent “does not adequately protect [Minnesotans’] basic rights and liberties.” State v. McMurray, 860 N.W.2d 686, 690 (Minn. 2015). A. The Supreme Court’s decision in Maryland v. King was a sharp departure in established Fourth Amendment jurisprudence. Before King, Fourth Amendment precedent had not permitted warrantless, suspicionless searches whose primary purpose was the normal need of law enforcement to solve crimes. See Indianapolis v. Edmond, 531 U.S. 32, 38 (1995) (cited with approval in Maryland v. King, 133 S. Ct. 1958, 1982 (2013) (Scalia, J. dissenting)). In fact, the very name of such suspicionless
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searches – “special needs searches” – emphasizes that unique nature of these searches and requirement that something other than ordinary crime detection justify their need. Id.; Chandler v. Miller, 520 U.S. 305, 313 (1997). In contrast to the Supreme Court’s recent shift in Fourth Amendment protections from unreasonable searches, the Minnesota Supreme Court has steadfastly required individualized suspicion even when the Fourth Amendment did not. See Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 187 (Minn. 1994) (interpreting Article I, Section 10 to provide greater protection from investigative stops than the Fourth Amendment). Notably, the brief by the Attorney General focuses more on how profiling DNA will assist law enforcement in solving crimes than in its use in identifying a person. Am. Curiae Br. at p. 5 (“ Beyond assisting with investigating crimes, DNA also aids in confirming the identity of an arrestee.”). Moreover, although the Appellant’s brief urges this Court to follow King because law enforcement officers may use DNA to “identify” a detainee and accurately process that individual into custody, there is no suggestion that DNA testing was required to accurately identify the Respondent in this case. The Supreme Court’s radical departure from established Fourth Amendment precedent in King is a sufficient basis standing alone to militate in favor of the Minnesota Supreme Court interpreting Article I, Section 10 to provide greater protection than the Fourth Amendment. B. The Supreme Court reduced the protections afforded persons not convicted of a crime by allowing compulsory DNA collection for the first time in King. The Supreme Court’s decision in King made no principled distinction between the need to identify – and thus take DNA from – a person convicted of a crime as opposed to those not convicted of a crime. The purported basis to “identify” a suspect is therefore the same regardless of whether the person has been convicted of a felony, arrested for a “serious” crime, or
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inappropriately detained. The King decision has therefore eroded the protections afforded innocent individuals to be free from unreasonable searches. Minnesota courts, however, have a long history of ensuring that Article I, Section 10 of the Minnesota Constitution adequately protects Minnesotans’ basic right to be free from unreasonable searches and seizures. For example, In re Welfare of C.T.L., the Minnesota Court of Appeals held that warrantless collection of DNA samples from arrestees who have not yet been convicted violated the Minnesota Constitution and noted that even the finding of probable cause “by a judge is not sufficient to permit a biological specimen to be taken from the person charged without a warrant.” 722 N.W.2d 484, 492 (Minn. Ct. App. 2006). Similarly, in Jarvis, the Minnesota Supreme Court acted to protect the right to bodily integrity by recognizing an independent right to privacy in the context of the forcible administration of drugs to a patient at a mental hospital. Jarvis v. Levine, 418 N.W.2d 139, 148-49 (Minn. 1988). Minnesota courts have also often taken pains to enumerate a separate state constitutional ground for their decision in order to ensure that the constitutional principle will stand even if it is later eroded by the U. S. Supreme Court’s Fourth Amendment jurisprudence. See, e.g., O’Connor v. Johnson, 287 N.W.2d 400 (Minn. 1979) (warrant authorizing search of attorney’s office invalid under both federal and state constitutions); Welfare of E.D.J., 502 N.W.2d 779 (Minn. 1993) (rejecting California v. Hodari, 499 U.S. 621 (1991) and adhering to long-standing rule that a seizure occurs when a reasonable person feels she is not free to leave); State v. Cripps, 533 N.W.2d 388 (Minn.1995) (holding that underage patron in a bar was seized, within the meaning of Article I,Section10 of the Minnesota Constitution, when an armed and uniformed police officer approached her and sought identification for proof of legal age to consume alcohol because objectively reasonable person would have believed that he or she was neither free to
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disregard police questions nor free to terminate encounter); State v. Larsen, 650 N.W.2d 144 (Minn. 2002) (holding that conservation officer’s search of a fish house without a warrant, consent or probable cause violates constitutional protections against search and seizure under the Fourth Amendment of the United States Constitution and Article I, §10 of the Minnesota Constitution); State v. Diede, 795 N.W.2d 836 (Minn. 2011) (citing both U.S. Minnesota constitutional protections against unreasonable searches and seizures and holding that seizure and search of defendant was unconstitutional). In short, the King decision retrenched privacy protections, which the Minnesota Courts have consistently continued to protect. C. The Supreme Court’s ruling in King does not apply to Minnesota’s statute and does not adequately protect the basic rights and liberties of Minnesotans. Minnesota Statute § 299C.105 has even less protections than the Maryland statute analyzed in King and therefore the Supreme Court’s reasoning is not applicable. The majority in King highlighted that the Maryland statute, for example, had rigorous restrictions on how the DNA could be used for identification, including limiting what part of the DNA could be analyzed and explicitly prohibited DNA analysis to identify family members of the arrestee. King, 133 S.Ct. at 1967. That statute also required the automatic and immediate destruction of any sample if the charges did not result in a conviction. Id. In contrast, the Minnesota legislature vested the Bureau of Criminal Apprehension with “develop[ing] uniform procedures and protocols” and does not require the automatic destruction of evidence. Minn Stat. § 299C.105; In re Welfare of C.T.L., 722 N.W.2d at 488 (“If the charge against one of these people is later dismissed, the BCA is required to destroy the biological specimen…upon the request of the person who submitted the biological specimen.”) Moreover, the King decision did not analyze any analogue to the Fourth Amendment in the Maryland constitution. As described above, Article I, Section 10 provides greater protection
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than other the Fourth Amendment. Following the Supreme Court’s decision in King, the Vermont Supreme Court similarly held similar DNA laws violated its state constitution and cited In re Welfare of C.T.L.in support. See State v. Medina, 102 A.3d 661, 663 (Vt. 2014). In addition, this Court has consistently supported the reasoning of the Court of Appeals’ decision in In re C.T.L., distinguishing those individuals required to submit DNA testing following conviction from those who were simply arrested but not convicted. See State v. Johnson, 813 N.W.2d 1, 10 (Minn. 2012); In re Welfare of M.LM., 813 N.W.2d 26, 36 (Minn. 2012). In summary, Minnesota Statute § 299C.105 violates the Article I, Section 10 of the Minnesota Constitution and there is a principled basis for distinguishing the new Fourth Amendment jurisprudence discussed in King. II.
Compulsory DNA testing implicates significant privacy interests. A. DNA contains significant amounts of data about an individual and the BCA is required to preserve the biological specimens, not just the DNA profiles. This Court has already acknowledged that an “individual’s DNA contains a wealth of
knowledge….[And even] noncoding regions used in DNA profiling can indicate or predict diseases states” and be used for parentage testing. State v. Johnson, 813 N.W.2d 1, 20 (Minn. 2012). DNA is not only the “blueprint for life” but reveals “massive amounts of personal, private data about that individual.” Id. As with the privacy of information secured in our home, information secured in our genes “are intimate details, because the entire areas is held safe from prying government eyes.” Kyllo v. United States, 533 U.S. 27, 37 (2001). A study published by the John Hopkins University Genetics and Public Policy Center found that 92% of Americans are wary that their genetic information could be used to harm them and another study found that 84% of Americans believed it important to have laws protecting genetic research from access by
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law enforcement. 2 Although the Attorney General quotes this Court’s decision in Johnson stating the DNA profile derived from a sample “contains no genetic information,” this Court specifically noted that the statute requires the BCA to maintain not just the profile but the entire sample containing individuals’ genetic information. Johnson, 813 N.W.2d at 21-22. (“A biological specimen contains far more information than a DNA profile. ‘[O]ne drop of blood…. is a complete record of your DNA.’”). This Court therefore found that like others across the United States “the ordinary citizen in Minnesota has a high expectation of privacy in his or her DNA.” Id. Such privacy concerns are magnified in the context of mandatory searches by law enforcement as compared to a voluntary DNA test for medical reasons. Congress acknowledged these privacy concerns when enacting the Genetic Information Nondiscrimination Act of 2008, noting that Americans want to have their genetic information used for medical purposes but worry about the abuse or misuse of such information by law enforcement. 3 When the Office of the Inspector General (“OIG) last evaluated the Minnesota Bureau of Criminal Apprehension Forensic Laboratory, OIG reported that the laboratory personnel were unable to locate the required documentation supporting four casework profiles and two convicted offender profiles. 4 In addition, the laboratory had included five profiles that were prohibited from being included in the database. 5 Moreover, a profile had been uploaded into the convicted
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U.S. Public Opinion on Uses of Genetic Information and Genetic Discrimination, at 1, available at http://www.pewtrusts.org/en/research-and-analysis/reports/2007/04/24/us-public-opinion-on-uses-of-geneticinformation-and-genetic-discrimination; David J. Kaufman et al., Public Opinion about the Importance of Privacy in Biobank Research, 85 Am. J. Human Genetics (Nov. 13, 2009), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2775831; 3
Genetic Information Nondiscrimination Act of 2008, PL 110-233, 122 Stat 881 § 2 (findings) (2008).
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OIG Reports: https://oig.justice.gov/reports/codis-ext.htm; https://oig.justice.gov/grants/g5001003.htm
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OIG Minnesota Report: https://oig.justice.gov/grants/g5001003.htm
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offender database which was not allowed for inclusion in that database. 6 Although OIG found the Minnesota lab generally compliant, OIG stressed that “[g]iven the sensitivity surrounding the collection and usage of DNA, we consider every instance of an inappropriate profile to be significant.” 7 Investigations into other labs have revealed other inappropriate handling of genetic material and misconduct. 8 In the Houston crime lab, an independent investigation reported analysts “reported conclusions, frequently accompanied by inaccurate and misleading statistics, that often suggested a strength of association between a suspect and the evidence that simply was not supported by the analyst’s actual DNA results.” 9 That law enforcement and the BCA claim they will only use DNA for identification purposes does not therefore ameliorate privacy concerns. B. Partial matching and familial searching are examples of the intrusiveness of DNA testing. Nothing in Minnesota Statute § 299C.105 prohibits familial searching of DNA and the state currently permits the use of “certain forensic partial and forensic mixture DNA profiles at the State level.” 10 In State v. Johnson, this Court noted that “genetic information is not only ‘information about us,’ but also ‘information about our parents, our siblings, and our children.’” Johnson, 813 N.W.2d at 21. While no Minnesota law currently authorizes familial searching, 6
Id.
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Id.
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Michael R. Bromwich, Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room, at 5 (June 13, 2007), available at http://www.hpdlabinvestigation.org/reports/ 070613report.pdf.
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Id.
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June 15, 2016 BCA Announcement, https://dps.mn.gov/divisions/bca/bca-divisions/forensicscience/Documents/MN%20DNA%20Profiles%20in%20the%20National%20DNA%20Database.pdf
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House Bill 0981 was introduced into the House of Representatives in 2011 which would have expressly allowed familial DNA searches. 11 At least fifteen states, including Minnesota, however, allow for partial match and four states permit familial searching. 12 The federal government allows for the conducting of “a partial match” which the FBI defines as “not an exact match” but a “match between two single source profiles having at each locus all of the alleles of one sample.” 13 In other words because of the similarity in alleles in the two samples, “the scientist may conclude that a close biological relative of the offender may be the source of the forensic unknown [specimen].” 14 California, for example, permits the DNA database profiles from convicted offenders to be searched as part of its familial search project. 15 In familial searching, law enforcement have the ability to find the relatives, i.e. those with similar genetic make-up, of those with specimens contained in a DNA databank. 16 In other words, a person whose DNA is included in a databank could find himself subject to having his DNA continually re-tested. Moreover, if the familial testing does not conclusively exclude him, both he and his family could be the subject of an investigation. 17 11
House Bill981 (2011): http://wdoc.house.leg.state.mn.us/leg/LS87/HF0981.0.pdf
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http://www.councilforresponsiblegenetics.org/dnadata/usa/usa2.html; see also See http://www.dnaforensics.com/StatesAndFamilialSearches.aspx (identifying the four states permitting familial searching: California, Colorado, New York, and Florida. For a discussion regarding the distinction, see http://www.denverda.org/DNA_Documents/Familial_DNA/CDAA%20familial%20search%20article.pdf
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FBI CODIS Facts: https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet
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Id.
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California Department of Justice DNA FAQs: https://oag.ca.gov/bfs/prop69/faqs
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Finding Criminals Through the DNA of Their Relatives—Familial Searching of the California Offender DNA Database: http://www.denverda.org/DNA_Documents/Familial_DNA/CDAA%20familial%20search%20article.pdf 17
California Department of Justice Division of Law Enforcement, DNA Partial Match (Crime Scene DNA Profile to Offender) Policy: http://ag.ca.gov/cms_attachments/press/pdfs/n1548_08-bfs-01.pdf
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Both partial searches and familial searches pose a far more intrusive burden on persons not convicted of a crime than finger prints or other types of permissible law enforcement searches of the person such as a pat down or inspection of clothes. As this country’s experience with fingerprinting and the collection of social security numbers shows, government databases collecting sensitive information tend to expand beyond the initial uses for which they were intended. 18 The CODIS DNA database itself has expanded from originally including samples only from persons convicted of violent felonies to samples from people who have simply been arrested for minor offenses. 19 The growing expansion of the DNA database, the existence of these types of partial and familial searches, and lack of a statutory mandate prohibiting their use in Minnesota weighs in favor of this Court affirming the lower court’s decision. CONCLUSION For the foregoing reasons, amicus curiae American Civil Liberties Union of Minnesota urges this Court to uphold the District Court’s decision.
Dated: August 29, 2016
Respectfully submitted, AMERICAN CIVIL LIBERTIES UNION OF MINNESOTA By s/Teresa Nelson Teresa Nelson (#269736) 2300 Myrtle Ave., Suite 180 Saint Paul, Minnesota 55114 (651) 645-4097 Attorneys for Amicus Curiae American Civil Liberties Union of Minnesota
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Carolyn Puckett, The Story of the Social Security Number, Social Security, Social Security Bulletin, Vol. 69 No. 2, 55, (2009), available at http://www.ssa.gov/policy/docs/ssb/v69n2/v69n2p55.html 19
Michal T. Rischer, Racial Disparities in Databanking of DNA Profiles, In Sheldon Krimsy and Kathleen Sloan, eds. Race and Genetic Revolution (Columbia Univ. Press 2011) at 49-50.
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CERTIFICATE OF COMPLIANCE This brief complies with the word limitations of Minn. R. Civ. App. P. 132.01, subd. 3(a). The brief was prepared with Microsoft Word 2010, which reports that the brief contains 3,507 words.
By s/Teresa Nelson___________ Teresa Nelson (#269736) 2300 Myrtle Ave., Suite 180 Saint Paul, Minnesota 55114 (651) 645-4097 Attorneys for Amicus Curiae American Civil Liberties Union of Minnesota
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