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U.S. Appeals Court OKs DNA samples of felony defendants awaiting trial

'Another step down a really slippery slope,' public defender says

A U.S. appeals court in San Francisco Tuesday upheld a federal law that allows the collection of DNA from defendants who have been charged with a felony and released while awaiting trial.

The 9th U.S. Circuit Court of Appeals issued the ruling in the case of Jerry Pool, who faces charges in federal court in Sacramento of receiving child pornography.

The collection of DNA samples from federal suspects through blood tests or cheek swabs is authorized by a 2006 amendment to the U.S. Bail Reform Act.

Pool, who was granted bail of $25,000, argued that taking a DNA sample from a person who has not been convicted of a crime is an unconstitutional invasion of privacy.

But a panel of the appeals court said by a 2-1 vote that in Pool's case, "the government's interest in determining identity outweighs the defendant's privacy interest in giving a DNA sample as a condition of pretrial release."

The law applies to all federal suspects who have been arrested or charged with a misdemeanor or felony.

But Tuesday's ruling upholds the use of the law only when it is applied to people who are accused of a felony and have been formally charged as a result of a grand jury indictment or approval of the charges by a magistrate.

The court did not rule on whether the law is constitutional in other situations.

Pool's attorney, Assistant Federal Public Defender Rachelle Barbour, said Pool will "absolutely" appeal to an expanded 11-judge panel of the appeals court.

"I think the 9th Circuit has taken another step down a really slippery slope toward undermining the rights of the general public in genetic privacy," Barbour said.

Another panel of the appeals court is now considering the constitutionality of a broad California state law that allows the collection of DNA from all suspects who have been arrested on felony charges, whether or not they are convicted.

The appeals court heard arguments in that case earlier this year, but has not yet issued a decision.

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