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July 7, 2008

First Circuit upholds DNA collection from non-violent felons on probation

Thanks to AL&P, I see that the First Circuit has reversed a district court ruling that found Fourth Amendment problems with DNA collection from non-violent felons on probation .  Here is the first paragraph from US v. Soto, No. 07-1245 (1st Cir. July 7, 2008) (available here):

In this consolidated appeal, the government challenges the district court's conclusion that requiring DNA collection from non-violent felons who are sentenced to probation violates the Fourth Amendment. In light of our decision in United States v. Weikert, 504 F.3d 1 (1st Cir. 2007), which was issued seven months after the district court's ruling, that conclusion cannot stand.  Although the district court correctly concluded that a "totality of the circumstances" balancing test must be used to analyze the constitutionality of the DNA collection program, the court's application of that balancing test is inconsistent with our analysis in Weikert.  Accordingly, we reverse.

July 7, 2008 at 04:01 PM | Permalink


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I don't understand where this "totality of the circumstances" test comes from. I thought all warrarntless searches were per se unreasonable unless they fell into an specific exception to the warrant requirment. If "totality of the circumstances" is now an "exception" to the warrant requirement, has not the exception swallowed the rule?

Posted by: Anon | Jul 8, 2008 11:49:08 AM

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