Thomas Kriesel pled guilty to a drug conspiracy charge and was sentenced to prison followed by a term of supervised release. Kriesel was required to provide a blood sample as a condition of his supervised release. The blood sample was used to create a DNA profile that was stored in the the government’s Combined DNA Index System (CODIS) database.
Kriesel sued to have the blood sample returned (not the DNA profile). The district court denied Kriesel’s request, and the 9th Circuit affirmed.
Kriesel’s claim was based on FRCP 41(g): Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
The 9th Circuit concluded the blood sample was property so the issue was “whether the government has shown a legitimate reason for retaining the property. This case turns on whether the government’s continued retention of the blood sample is ‘reasonable under all of the circumstances.’” Kriesel at 1145.
The 9th Circuit denied Kriesel’s claim and accepted the government’s argument that a “match confirmation process” used to test the validity of new software was a legitimate reason for retention. The match confirmation process generates a new DNA profile from the retained blood samples and then compares the new profile to the old profile. The government argued this process reduces errors. Id.
Relying on Buck v. Bell for the notion that our values shift dramatically over time, the dissent argued that the statutory penalties for unauthorized use of stored blood samples were insufficient safeguards and “[t]he only sure way to avoid such a risk is to give individuals, rather than the government, the ultimate say regarding whether their genetic material will reside permanently in a government-controlled refrigerator.” Id. at 1161. The dissent pointed to the potential for third-party violations and correctly pointed out that “no one can assure the over ten million Americans whose blood samples are currently held by the government, or the untold millions to come, that their samples will never be misused. The quick pace of technological advancement has led to the risk of privacy violations that we could never have imagined a short while ago.” Id.