United States v. Baker

42 U.S.C. § 14135a(a)(1) applies to “individuals in custody” and § 14135a(a)(2) applies to “individuals on release, parole, or probation” therefore, subsection (a)(1) does not authorize the collection of a probationer’s DNA.

Robert Baker was convicted of misdemeanor possession of methamphetamine and sentenced to three years’ probation. Baker appealed his conviction and two of his probation’s conditions. One of the challenged conditions allowed suspicionless searches and the other required Baker submit DNA samples. Baker argued that the district court’s imposition of the search condition exceeded its constitutional authority. The Ninth Circuit applied the Motley v. Parks, 432 F.3d 1072, 1083 n.9 (9th Cir. 2005) rule that “there is no constitutional difference between probation and parole for purposes of the fourth amendment” and concluded that the search without suspicion of a probationer does not violate its Fourth Amendment rights. Baker claimed the district court lacked statutory authority to impose the DNA condition of his probation. The government argued 42 U.S.C. § 14135a(a)(1), which allows the Attorney General to require DNA collections from any person “arrested, facing charges or convicted” without qualification, applied and the Ninth Circuit disagreed. Subsection (a)(1) applies to “individuals in custody” and subsection (a)(2) applies to “individuals on release, parole, or probation.” The district court’s denial of Baker’s motion to dismiss was also affirmed. Therefore, the Ninth Circuit affirmed Baker’s conviction and the suspicionless search condition of his probation, and reversed the DNA condition with instructions to strike the DNA condition and expunge DNA records collected in connection with the condition. AFFIRMED in part, REVERSED in part, and REMANDED with instructions.