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United State v. Wavra

April 26, 2006

UNITED STATE OF AMERICA,
v.
STEVEN WAVRA, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

On July 16, 1997, defendant Steven Wavra pled guilty to one count of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. §922(g)(1), § 924(a)(2), and on December 10, 1997, was sentenced to 90 months imprisonment, three years supervised release, and a $100 special assessment. Thereafter, pursuant to the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. §§14135-14135(e) ("DNA Act"), as amended, defendant was notified in writing by the United States Department of Probation that he was required to submit a blood sample for DNA analysis pursuant to the DNA Act. On September 27, 2005, by letter to this Court, Wavra objected to this requirement on the ground that the DNA Act violates the Fourth Amendment. Accordingly, on November 2, 2005, this Court issued an order to show cause why defendant's position should not be adopted and the probation department's directive vacated. The Government opposed that relief. After the parties briefed the issues and oral argument was heard from both parties, a panel of the United States Court of Appeals for the Second Circuit resolved the issue presented by this case when it held in Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) that searches pursuant to New York's DNA statute, which is in all relevant respects essentially identical to the federal DNA Act, did not violate the Fourth Amendment. Thereafter, at the request of this Court, both sides submitted additional briefing on the impact of Nicholas.*fn1 Following Nicholas, and for the reasons set forth below the relief requested by the defendant is denied and the defendant is ordered to comply with the probation department's directive.

BACKGROUND

The following facts are taken from the submissions of the parties in connection with the present motion. They are undisputed.

In April 1996 Wavra was arrested by New York City Police after he was discovered placing razor blades in the pages of books at the Brooklyn Public Library. A search incident to his arrest produced four rounds of .22 caliber ammunition in his shirt pocket as well as what appeared to be a homemade zip gun. Thereafter, a search of defendant's apartment revealed 93 more rounds of .22 caliber ammunition. On July 16, 1997, defendant Wavra pled guilty before Magistrate Judge Go to one count of unlawful possession of ammunition by a convicted felon*fn2 in violation of 18 U.S.C. §922(g)(1), §924(a)(2). On December 10, 1997, the defendant was sentenced to 90 months imprisonment, three years supervised release, and a $100 special assessment. On March 25, 2005 Wavra was released from custody and began his period of supervised release. Although no DNA collection statute existed at the time Wavra was sentenced, the DNA Act was enacted before his release. Subsequent to his release Wavra was directed by the Probation Department to submit a blood sample for DNA analysis pursuant to the Act. Wavra challenges the constitutionality of the Act under the Fourth Amendment.

DISCUSSION

The DNA Act

The DNA Act mandates the collection of DNA samples from any federal prisoner, parolee, or individual on probation or supervised release, "who is, or has been, convicted of a qualifying federal offense." 42 U.S.C. §§14135a(a)(1)-(2). When the DNA Act was originally enacted in 2000, it contained a limited number of qualifying offenses, not including unlawful possession of ammunition by a felon. However, the definition of a "qualifying offense" under the DNA Act was amended by the Justice for All Act of 2004, P.L. 108-405, 118 Stat. 2260 (Oct. 30, 2004) to include, "[a]ny felony." "Felony" is in turn defined by regulations promulgated by the Attorney General to include any offense for which the maximum term of imprisonment is more than one year. 28 C.F.R. §28.2(a)(2005). Defendant's conviction for unlawful possession of ammunition by a felon carried a maximum penalty of ten years in prison. See 18 U.S.C. §924(a)(2). Accordingly, defendant's conviction places him within the mandate of the DNA Act.

The DNA Act requires qualifying offenders to "cooperate in the collection of a DNA sample." 42 U.S.C. §14135c. Both the federal probation and supervised release statutes require such cooperation as a mandatory condition of supervision. See 18 U.S.C. §3563(a)(9), 3583(d). A qualifying offender who refuses to cooperate in the collection of a DNA sample is guilty of a Class A misdemeanor. 42 U.S.C. §14135a(a)(5)(A).

The DNA Act does not prescribe the method to be used for obtaining DNA samples from qualifying offenders, but rather defines DNA sample broadly as, "a tissue, fluid, or other bodily sample of an individual on which a DNA analysis can be carried out." 42 U.S.C. §14135(a)(c)(1). However, the FBI has requested that the probation department collect blood samples from qualifying offenders because "blood is easier to test and preserve than hair, saliva, or skin cells." U.S. v. Kincade, 379 F.3d 813, 817 (9th Cir. 2004). After the DNA sample is collected by the probation department it is sent to the FBI for analysis and entry into the Combined DNA Index (or Identification) System ("CODIS"), a national database linking DNA evidence from federal, state, and local sources into a searchable computer network. Id. §14132(a), 14135(b), see H.R.Rep. No. 106-900(I)(Sept. 26, 2000), 2000 WL 1420163, at *26-27.

The DNA Act strictly limits the permissible uses of the DNA information in CODIS, almost exclusively to "law enforcement identification purposes." 42 U.S.C. §14132(b)(3). Accordingly, DNA testing may only be conducted on "junk DNA," that is, DNA which reveals no genetic information, but only provides a sufficient number of unique markers so as to match one DNA sample to another. H.R.Rep. 106-900, *27; U.S. v. Kincade, 379 F.3d 813, 818 (9th Cir. 2004). Improper disclosure of DNA samples or of the information contained in CODIS is prevented by confidentiality rules and by criminal sanctions for violations. 42 U.S.C §14135(e)(c). If an offender's qualifying conviction is overturned, the DNA Act directs the FBI to "promptly expunge" the offender's DNA information from CODIS. 42 U.S.C. §14132(d)(1)(A).

Although the DNA Act does not include a "purpose" section, the Act's legislative history demonstrates that its purpose is to solve crimes. 146 Cong. Rec. H8572-01, *H8575-6 ("The purpose of this database is to match DNA samples from crime scenes where there are no suspects with the DNA of convicted offenders. Clearly, the more samples we have in the system, the greater the likelihood we will come up with matches and solve cases."); 146 Cong. Rec. S11645-02 (Dec. 6, 2000), at *S11646 ("Collection of convicted offender DNA is crucial to solving many of the crimes occurring in our communities.")(statement of Sen. Dewine); 150 Cong. Rec. H8175-05 (Oct. 6, 2004), at *H8176 (the Justice for All Act "makes DNA technology available to our criminal justice system in order to enhance its efficiency and certainty in exonerating the innocent as well as identifying and convicting the guilty." (statement of Rep. Hastings).

The Fourth Amendment

The Fourth Amendment to the United States Constitution provides that, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." The extraction of blood is a "search" within the meaning of the Fourth Amendment. Skinner v. Ry Labor Executives' Ass'n, 489 U.S. 602, 616-17 (1989)(holding that blood tests, breathalyzer tests, ...


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