Privacy/Public Health Reporting and Testing

Are state DNA banks constitutional? - Johnson v. Com. of Virginia, --- S.E.2d ----, 2000 WL 432395 (Va. 2000)

This is a lengthy death penalty appeal case. The important legal issue concerns the use of DNA databanks to identify suspects. Virginia law provides that all convicted felons provide a sample of blood for DNA testing, and that the results of this testing are kept in a database. In this case, defendant was matched to a crime by a search of the DNA database, a crime for which he was not otherwise identified by any other evidence. The DNA match was not very specific - about 1 in 1000 - but it was good enough to get an arrest warrant and a search warrant. Once arrested, defendant was linked to the apartment and was convicted largely on the strength of pattern of crime evidence. As one of his points on appeal, defendant alleged that being forced to give the DNA to the databank violated his 4th Amendment right against unreasonable searches and seizures, his 5th Amendment right against self-incrimination, and his 8th Amendment right against cruel and unusual punishment.

In the 4th Amendment claim, The court defers to Jones v. Murray, 962 F.2d 302 (4th Cir.) cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992), which found that the blood sample was a minor intrusion that was outweighed by the state's benefit in using the information to improve law enforcement. The court dismissed the 5th Amendment claim because the taking of a blood sample is not " not testimonial or communicative in nature", citing Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Shumate v. Commonwealth, 207 Va. 877, 880, 153 S.E.2d 243, 245 (1967); Lawrence v. Bluford-Brown, 1 Va.App. 202, 204, 336 S.E.2d 899, 900-01 (1985). The court rejected the 8th Amendment argument, holding that since the statutes were not penal in nature, they could not constitute cruel and unusual punishment.

This case deals with the narrow issue of whether taking blood from a convicted felon for DNA analysis, storing that information in a database, and then using that database to identify a suspect is constitutional. As a death penalty appeal, this case will receive further review by the federal courts, but existing precedent seems to support the ruling. It is not clear, however, how broadly this ruling can be used in contexts where the DNA was collected for other purposes, say medical testing, and then incorporated into the state database.