9th Circuit Allows Suit Against Prosecutor Who OK'd DNA Sample Without Warrant
In a decision that resurrects a convicted sex offender’s lawsuit against a Las Vegas detective and local prosecutor, the San Francisco-based 9th U.S. Circuit Court of Appeals has said the man can personally sue the individuals for forcibly extracting his DNA without a warrant.
Kenneth Friedman had reportedly told the detective he wouldn’t willingly give a DNA sample and asked to speak to a lawyer. Instead of giving him access to counsel, the detective, with the blessing of Clark County Deputy District Attorney Ellisa Luzaich, took a swab from Friedman’s mouth. Luzaich then directed that the sample be placed in a cold case bank, the Las Vegas Review-Journal reports.
At the time, Friedman was in custody as a pretrial detainee on stalking charges, and authorities wanted his DNA to check against unsolved crimes, none of which he was suspected of committing.
A trial judge dismissed Friedman’s case on qualified immunity grounds. But the 9th Circuit, in a 2-1 ruling, revives the civil action. In addition to having no right to take the DNA, the court noted that it was never actually placed in a cold case database.
“Neither the Supreme Court nor this court has ever ruled that law enforcement officers may conduct suspicionless searches on pretrial detainees for reasons other than prison security,” the court held.
The 33-page opinion (PDF) notes that Friedman had served time in the past for rape. In 1980, he was arrested and pleaded guilty to rape in Montana. He was released in 2001 and moved to Las Vegas.
“The Nevada authorities extracted the DNA from Friedman, not because they suspected he had committed a crime, nor to aid in his reintegration into society, nor as a matter of his continuing supervision,” Sydney Thomas wrote for the majority. “Their purpose was simply to gather human tissue for a law enforcement databank, an objective that does not cleanse an otherwise unconstitutional search.”
The court also rejected an assertion by the defendants that they had the authority to collect the DNA because Friedman was incarcerated.
“Defendants cite a number of appellate cases that uphold the constitutionality of state DNA bank laws. Not one of those cases involved a search of a pretrial detainee—as opposed to a convicted prisoner—or a state law that mandated searches of pretrial detainees. None of these cases uphold a search similar to the suspicionless one of a pretrial detainee in this case,” Thomas notes.
The court also pointed out that while a proper procedure would have involved a search warrant, it’s likely that a search warrant wouldn’t have been granted because there was no probable cause.
The dissent opined that the minimally invasive search was acceptable.
