Appeals court: ‘Forcefully extracted’ DNA violated man’s rights

By Cy Ryan

Tuesday, June 23, 2009 | 12:20 p.m.

CARSON CITY – In a 2-1 decision, a federal appeals court has ruled that the constitutional rights of a person in the Las Vegas jail were violated when a law enforcement officer chained and forcibly took a DNA sample.

The 9th U.S. Circuit Court of Appeals said Metro Police Detective Dolphus Boucher, with the approval of Deputy District Attorney Elissa Luzaich “forcefully extracted” a DNA sample from Kenneth Friedman.

The officer did not have a warrant or a court order to take a swab from inside the mouth of Friedman.

The decision overturns the ruling of U.S. District Judge James Mahan who held Boucher and Luzaich were entitled to qualified immunity and dismissed the civil suit brought by Friedman, who contends his constitutional right to be free from search was violated.

The case returns to the federal district court in Las Vegas for further hearings.

Judge Sidney Thomas, who wrote the majority opinion, wrote, “no reasonable detective or prosecutor could have thought that they could forcibly take a DNA sample from Friedman without violating his Fourth Amendment rights.”

Judge Consuelo Callahan, who wrote the dissent, said, “I would find that an in-custody repeat sex offender like Friedman, does not have a reasonable expectation of privacy under the Fourth Amendment …”

Friedman had been convicted of several rapes in Ohio and Montana before moving to Las Vegas. In August 2002, Las Vegas police detained and questioned Friedman for stalking an individual at a health club and making threatening telephone calls. In February 2003, Friedman was arrested and charged with indecent exposure and open and gross lewd conduct.

Luzaich, the deputy district attorney, authorized the detective to get a DNA sample to see if it would help solve any old cases.

Friedman said he refused and asked for a lawyer. But he says he was shackled and chained to a metal bar while the squab was forced into his mouth.

The court said there is no question the swab constituted a search and it was done without a warrant.

The detective and the prosecutor said they were entitled to conduct the search under conditions in the Montana law. But that law was passed in 1995 and Friedman was convicted in 1980.

The court said the Montana law “does not authorize any law enforcement officials, either within or outside Montana, to extract a DNA sample by force.”

The detective and the prosecutor also maintained Friedman, a pre-trial detainee, had limited privacy rights and must yield to law enforcement officials to collect DNA samples for use in databases. The court said pre-trail detainees retain greater privacy interests than do persons convicted of crimes.

The court said there would “have been ample opportunity” to obtain a warrant but the law enforcement officials had no probable cause on which to base their request for a warrant.

Judge Callahan, in her dissent, said the U.S. Supreme Court has held that those incarcerated have little, if any, expectation of privacy under the Fourth Amendment.

“Here Friedman, a convicted sex offender, was a pre-trial detainee facing charges of indecent exposure and open and gross lewd conduct when the state officials took a buccal swap from inside his mouth.”

She said this “minimally invasive search was reasonable.” The DNA, said Callahan is like fingerprints, used to identify a person. And it is “far less intrusive than drawing blood.”

She said that prior case decisions “Leads to the conclusion that a lawfully incarcerated individual, particularly a repeat sex offender like Friedman, does not have a Fourth Amendment right to prevent state authorities from using a buccal swab to take a DNA sample.”

Friedman, 51, is in prison in Southern Nevada on a life term.