Peninsula case may set precedent

Inmate's refusal to provide DNA sample being handled in state court

Posted: Monday, March 22, 2004

As the U.S. Court of Appeals studies the issue of random DNA testing of parolees, a Kenai Peninsula case may determine the constitutionality of requiring prison inmates to provide samples of their DNA.

The Kenai Public Defender Office has until Friday to respond to a government argument in the Mark Nason vs. State of Alaska case being reviewed in the state appellate court in Anchor-age.

The case involves Nason, a prisoner at the Spring Creek Correctional Center in Seward, doing time after being convicted of first-degree assault, a felony.

In July 2002, Alaska State Troopers attempted to obtain a sample of Nason's deoxyribonucleic acid, or DNA, as required by state law of people convicted of crimes against a person.

The procedure is intended to create a DNA identification registration system to assist law enforcement in solving other crimes that a prisoner may have committed.

However, on the advice of his attorney, Nason refused to provide a DNA sample and was charged with a class A misdemeanor.

Kenai assistant public defender John Morrison filed a motion in Kenai District Court to dismiss the charge on the grounds the requirement violates both the U.S. and Alaska constitutions.

Morrison contended the requirement violates Nason's right to privacy under the U.S. Constitution, his right to privacy under the state Constitution, his right to equal protection and his U.S. Fourth Amendment right against unreasonable search and seizure.

The state argued that the law did not violate Nason's rights and the district court agreed.

However, on behalf of Nason, Morrison appealed that decision.

The defense attorney believes the case will come down to whether it's an unreasonable search.

"The state feels it's reasonable to potentially incriminate people in other crimes and to promote law enforcement," Morrison said.

"Nason feels it is not reasonable without a search warrant. It is suspicion-less and warrant-less," he said.

In his argument of the Fourth Amendment violation, Morrison said the state DNA registry was being used solely to compare specimens collected with those left at crime scenes so police and prosecutors can attempt to solve crimes and prosecute offenders.

Because the law asks people to submit a DNA sample specifically for the purpose of potentially incriminating themselves, and the state cannot show a special need to justify the invasion of privacy without probable cause and a search warrant, the statute violates the Fourth Amendment, Morrison said.

In the comparable federal case being considered by the 9th Circuit Court of Appeals, the court found that a similar federal statute is unconstitutional because, to conduct a search, the government must at least have a reasonable suspicion to warrant invading a person's body to collect blood samples.

The 9th Circuit concluded, "However intermingled with good intentions, DNA statutes ... represent an alarming trend whereby the privacy and dignity of our citizens are being whittled away by imperceptible steps.

"Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen a society in which government may intrude into the secret regions of a man's life at will."

The court went on to say that even though the statutes currently affect only those under state supervision, such as inmates and parolees, the threat to all other citizens might not be far behind.

"Privacy erodes first at the margins, but once eliminated, its protections are lost for good, and the resultant damage cannot be undone," the court stated.

When asked why Nason would object to the DNA sampling if he in fact has nothing to hide, Morrison compared that type of search to a search of one's home.

"Why not let police come into your house once a month, just to look around?" he asked rhetorically.

"If that were allowed, yeah, we would live in a police state with a reduced crime rate.

"That's not where I want to be," Morrison said.

He has until Friday to respond to the state's argument. The state will then have an opportunity to respond, and Morrison will be allowed to request oral arguments on the case in open court.

The federal case, which had been reviewed by three justices, now will be looked at by the entire 9th Circuit Court before a binding decision is made.

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