High court to ponder pre-conviction DNA testing

County is only place in the state that takes DNA from individual charged with serious crimes

By Barbara L. Jones
BridgeTower Media Newswires

MINNEAPOLIS, MN - In the way that appealed cases do, a road-rage assault charge in Dakota County has migrated to the minutely detailed arena of constitutional law and civil authority. Scheduled for argument at the Minnesota Supreme Court on Oct. 13, State v. Emerson may rest on a U.S. Supreme Court decision from Maryland and a Minnesota Court of Appeals decision from 2006.

Or it could rest on how the high court views the authority of the District Court to disregard laws it views as unconstitutional or the separation of powers between the three branches of government.

Assistant Dakota County Attorney Helen Brosnahan and Minnesota Appellate Public Defender Cathryn Middlebrook will face off over the issue of collecting DNA samples from people who have not been convicted of a crime, such as John David Emerson. Judge Cynthia McCollum in Dakota County enjoined Sheriff Timothy Leslie from collecting Emerson's DNA. The Court of Appeals denied the county's request for a writ of prohibition preventing the court from enforcing that order.

Joining in on paper are the attorney general and the American Civil Liberties Union of Minnesota.

Dakota County acting alone

Emerson was tried for one count of second-degree assault, which involved a knife. The complainant said that he punched him and pulled a knife, which Emerson denied. The jury was hung.

Under Minn. Stat. sec. 299C.105 subd. 1(a)(1) and (3) (see sidebar), law enforcement is mandated to take DNA from individuals charged with serious crimes. That law was declared unconstitutional in 2006 by the Court of Appeals in In re the Welfare of C.T.L.

But in 2013, the U.S. Supreme Court said in Maryland v. King that taking a DNA sample prior to a conviction did not violate the Fourth Amendment. The parties disagree on whether King revived the statute, regardless of C.T.L.

In 2015, a bill was introduced in the Minnesota Legislature that would allow DNA collection upon arrest for enumerated felonies, but it went nowhere. In August, 2015, the Dakota County sheriff began collecting DNA from defendants charged with qualifying offenses after a court has found probable cause to prosecute.

Dakota County is the only place in Minnesota that takes DNA pursuant to the statute. Middlebrook said that public defenders are aware of the DNA testing issue and the office is unaware of any other counties that take DNA samples from people not convicted of a crime.

Mark Ostrem, Olmsted County attorney and president of the Minnesota County Attorneys Association, said that to the best of his knowledge no other county was taking DNA samples pre-conviction. "We're taking a wait-and-see posture. We have to see what the Supreme Court does [in Emerson]," he said.

No protected right and no authority

Generally, a court must find that another court exceeded its authority, causing injury for which no other remedy is adequate, before issuing a writ of prohibition.

The District Court acted without legislatively-granted or inherent authority, the county asserts.

The county argues that the District Court tacked a civil action on to a criminal action but that criminal subject-matter jurisdiction is limited to hearing and deciding the case and sentencing the defendant. It also argues that the Dakota County sheriff was not a party to the case in the District Court proceedings, meaning that the court rendered an advisory opinion.

It waves off the defense argument that the rules of criminal procedure grant the court jurisdiction. The rules apply only to DNA samples taken for evidence while the statute allows DNA analysis only for identification purposes, the county argues. It also says that the court had no inherent authority over the DNA sample process because it is outside of the context of the wrong that was being redressed in Emerson's criminal case.

The county next argues that taking a biological specimen does not impede a protected right under the United States Constitution or the Minnesota Constitution.

The county's argument goes down this road: In C.T.L. the Minnesota Court of Appeals said that the DNA sample law was unconstitutional. But in 2013, the U.S. Supreme Court said in King that a very similar law did not violate the Fourth Amendment. The county argues that C.T.L. was decided entirely on federal constitutional grounds and therefore was overturned by the King decision.

Relying on Jawish v. Morlet, a 1952 decision from the Municipal Court of Appeals for the District of Columbia, the county argues that the DNA statute was resurrected without any legislative action.

Even if the Supreme Court goes back to the Minnesota Constitution, the court should find that it does not afford any greater protection than the Fourth Amendment. The collection of DNA via a mouth swab is a minimal intrusion and therefore reasonable, the county says.

Declared unconstitutional, remains unconstitutional

The defense brief leads off by stating, "Minnesota's DNA-collection statute relied on by the Sheriff was declared unconstitutional in 2006 and remains unconstitutional despite Dakota County's unlawful attempts to revive it." Therefore the District Court did not exceed its authority in preventing an unconstitutional search.

The defense distinguished the King case because it held only that Maryland's statute, with all of its procedural protections, properly authorized warrantless searches for DNA in that state, but did not reach Minnesota. C.T.L. cited federal and state law in answering the certified question, "[W]hether Minn. Stat. § 299C.105 directs law-enforcement personnel to conduct unconstitutional searches in violation of the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution." It said yes.

King did not revive the state statute, the defense argued.

"While the United States Supreme Court may revive a federal statute after it overrules its own precedent, it does not somehow impliedly revive a Minnesota statute struck down by a Minnesota appellate court decision that the United States Supreme Court never reviewed," the defense wrote in its brief.

The defense goes on to cite seven cases in which the Minnesota Supreme Court has found a principled basis for interpreting the Minnesota Constitution to provide greater protection than the Fourth Amendment. It asks the court to find that the expectation of privacy for a person charged but not convicted is not outweighed by the state's interest in collecting and analyzing a DNA sample.

The defense went on to argue that the District Court had subject-matter jurisdiction over the DNA testing issue because taking a DNA sample "is not some civil act. It is an act by law enforcement that the District Court has the authority to review under the Minnesota Rules of Criminal Procedure." The court had the authority and the duty to prevent a violation of the defendant's constitutional rights.

Amici's arguments

DNA is an important crime-fighting tool, amicus Office of the Attorney General argues. It also asserts that the samples collected from arrestees are used only for identification purposes. The sample is processed by the Bureau of Criminal Apprehension to obtain a profile that contains no genetic material and only identifying material.

The DNA sample is placed in a database that is linked to the National DNA Offender Database, commonly called CODIS. CODIS then matches the DNA sample with its existing database, hoping for a "cold hit," the state explained in its brief. However, CODIS "incorporates substantial privacy protections," and the name of the person who gave the sample is not available from CODIS, but only from the agency that provided it.

Accordingly, the AG continued, the procedure is consistent with Maryland v. King and there is no principled reason to interpret the Minnesota Constitution differently from the Fourth Amendment. The case, along with other federal precedent, adequately protects the rights of Minnesotans, the AG's office wrote.

Not so fast, says the ACLU. It argues that the statute is unconstitutional and there is, in fact, reason to depart from the Supreme Court's view in Maryland v. King, which was a sharp departure from precedent and a "retrenchment" or a reduction of the constitutional rights of the arrestees.

It also argues that compulsory DNA testing implicates significant privacy interests. The fate of samples sent to the BCA is unknown, the ACLU wrote, noting that in its last inspection of the agency's forensic lab found six cases where documentation was missing and also found that the lab had included five profiles that were not supposed to be in the data base. Other states have similar issues, and "That law enforcement and the BCA claim they will only use DNA for identification purposes does not therefore ameliorate privacy concerns," the ACLU asserts.

Published: Fri, Oct 07, 2016