Appeals court upholds DNA collection statute

A former Montana Creek resident who refused to give a sample of his DNA when he went to prison for shooting his pregnant girlfriend in the buttocks argued to the Alaska Court of Appeals that the mandatory cheek-swabbing procedure constituted an unreasonable search and violated his right to privacy and equal protection.

In a Dec. 3 opinion, however, the appeals court ruled that Mark Nason, 37, failed to refute the constitutionality of Alaska's DNA collection statute. They upheld that law, which originally required DNA samples to be collected from anyone convicted of committing murders, rapes and other so-called "felonies against a person." The law now requires samples from all felons and from anyone convicted of a misdemeanor crime against a person. The samples are preserved in Alaska's DNA databank.

The high-court judges refused to delve into the constitutional privacy and search-and-seizure issues themselves, because, the ruling stated, "An appellate court must begin with the presumption that a statute is constitutional. To succeed in challenging the DNA collection statute, Nason must rebut the presumption of constitutionality."

The judges went on to say that Nason cited only one court decision in his favor -- a decision that had been reversed -- and that Nason didn't mention that dozens of federal and state court decisions in the U.S. have been virtually unanimous in upholding DNA collection statutes against the types of Fourth Amendment -- which forbids unreasonable searches -- and privacy challenges Nason presented in his appeal.

In 2001, Palmer Superior Court Judge Beverly Cutler sentenced Nason to 18 years in prison after a jury convicted him of a first-degree assault charge tied to the Dec. 12, 1999 shooting of his girlfriend, Heather Gillespie, in a Montana Creek cabin where they were staying. Gillespie was 19 years old and more than four months pregnant at the time.

Charging documents stated that Nason shot Gillespie with a 9mm Ruger handgun after an argument, as she turned to leave.

In 2002, while at the Spring Creek Correctional Center in Seward, Nason refused to submit to a cheek swabbing, the method used by the state to collect DNA samples for its databank. He was then convicted of a misdemeanor for his refusal and appealed that judgment.

Alaska is one of 36 states that currently require the collection of DNA samples from felons. Fourth Amendment challenges to state DNA databank laws have been considered by the appellate courts of at least 20 states, according to statistics compiled earlier this year by the American Society of Law, Medicine and Ethics. These challenges do not include those filed in the federal courts. None of the Fourth Amendment challenges have succeeded, to date.

"DNA collection presents very difficult legal issues," the appeals court ruling stated. "Not only is there substantial disagreement concerning the constitutionality of DNA collection, but even the judges who uphold DNA collection disagree concerning the constitutional justification for this practice."

In addressing Nason's appeal, the court observed that since Nason's conviction, the state has expanded the DNA sampling requirement to anyone convicted of a crime against a person, so the current version of the statute is not susceptible to the equal-protection attack Nason brought against it.

But even the earlier version of the statute did not violate Nason's right to equal protection, the court said, because "the legislature had a valid reason for singling out people convicted of felonies against a person. Generally speaking, these felonies are the ones most likely to yield DNA evidence that can be used to identify the perpetrator."

Nason's other constitutional attack on the DNA statute -- that it violated his Fourth Amendment and privacy protections -- consisted of three assertions:

He has a fundamental right of privacy in his DNA.

The state has no overriding interest in collecting his DNA.

Collection of DNA is an unreasonable, suspicious search.

But Nason cited only one case in his briefs, United State v. Kincade, in which a panel of the Ninth Circuit Court declared a federal statute requiring the collection of DNA samples from parolees constituted an unreasonable search in violation of the Fourth Amendment.

The two-judge majority conceded that its ruling was contrary to all existing case law, and in the months since Nason filed his brief, the Ninth Circuit Court has reversed Kincade.

There have only been two occasions on which judges have struck down DNA collection statutes, according to the appeals court ruling. One of those cases involved a federal district court decision from California that was subsequently reversed and the other case involved a trial court decision from Maryland, which was reversed by the Maryland Court of Appeals.

Although Alaska's appeals court upheld Alaska's DNA collection statute, it did so without addressing the possibility of a future attack on the statute's constitutionality.

"We therefore simply hold that, with regard to the Fourth Amendment and privacy challenges raised in this case, Nason has failed to rebut the presumption that the DNA collection statute is constitutional," the ruling stated.

The court said the fundamental problem is that even though courts throughout the country unanimously uphold DNA sampling statutes, the votes within each court are far from unanimous and courts are divided concerning the precise constitutional basis for DNA collection.

Some judges view DNA collection as simply another form of prisoner identification, similar to photographing and fingerprinting procedures, the ruling stated, while other judges view DNA collection as a warrantless search.

"To put the matter plainly, DNA collection statutes present very difficult legal issues," the ruling stated. "Not only is there substantial disagreement concerning the constitutionality of DNA collection, but even the judges who uphold DNA collection disagree concerning the constitutional justification for this practice. This is no small problem, because each different rationale for upholding DNA collection leads down a separate constitutional path in the future litigation of related Fourth Amendment and privacy issues."

Contact John Davidson at john.davidson@frontiersman.com.