United States District Court, D. South Dakota, Southern Division
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
Dale Edward Buller is before the court on an indictment
charging him with five counts of willful failure to file tax
returns in violation of 26 U.S.C. § 7203. See
Docket No. 1. Willful failure to file a tax return is a Class
A misdemeanor punishable by up to one year imprisonment, a
$25, 000 fine, and up to one year of supervised release if a
term of imprisonment is imposed. See 26 U.S.C.
Buller was arrested and made an initial appearance before
this court on December 20, 2017. Prior to the hearing, the
United States Marshals Service had attempted to photograph,
fingerprint, and obtain a DNA sample from Mr. Buller via a
buccal swab of his cheek. Mr. Buller refused to cooperate in
any of these three procedures. He also refused to be
interviewed by pretrial services for purposes of preparing a
bail report to the court.
the hearing, Mr. Buller insisted it was his right to refuse
to comply with the photograph, fingerprint and DNA
procedures. He asserted those identifying characteristics
belonging to him were “copyrighted” and the
government had no right to obtain them from him. Subsequent
to the hearing, Mr. Buller agreed to be fingerprinted and
photographed, but still refused to submit to a DNA sample.
The government indicated it would not waive the DNA sample
issue. The court, therefore, ordered both parties to brief
the issue of whether the taking of a DNA sample in Mr.
Buller's case was (1) authorized by law and, if so, (2)
whether the law was constitutional.
The Taking of a DNA Sample is Authorized
law authorizes the taking of DNA samples from federal
arrestees as follows:
The Attorney General may, as prescribed by the Attorney
General in regulation, collect DNA samples from individuals
who are arrested, [or] facing charges, . . . under the
authority of the United States.
See 34 U.S.C. § 40702(a)(1)(A).
same statute also authorizes the Bureau of Prisons (BOP) to
collect DNA samples from persons convicted of federal crimes
and in the custody of the BOP. See 34 U.S.C. §
40702(a)(1)(B). Collection of DNA from post-conviction
individuals is limited to persons convicted of certain
“qualifying Federal offense[s].” Id. The
collection of DNA from pre-conviction federal arrestees is
not limited to “qualifying” offenses.
See 34 U.S.C. § 40702(a)(1)(A). For
post-conviction prisoners, DNA is to be collected only from
those convicted of a felony, a crime of violence, or an
offense under chapter 109A of Title 18 (sexual abuse).
See 34 U.S.C. § 40702(d). Therefore, quite
anomalously, § 40702 does not restrict the collection of
DNA from pretrial arrestees, but does restrict the collection
of DNA from postconviction prisoners to only serious crimes.
Compare 34 U.S.C. § 40702(a)(1)(A)
with § 40702(a)(1)(B) and (d).
Attorney General has implemented the authority granted to it
under § 40702 by promulgating regulations. Under the
regulations, any federal agency which arrests a person is
required to collect DNA from that person so long as the
collection is limited to those persons from whom the agency
also collects fingerprints (unless otherwise limited or
excepted by the Attorney General). See 28 C.F.R.
§ 28.12(b). Mr. Buller was arrested by a special agent
of the Internal Revenue Service (IRS). The IRS directs its
agents to obtain fingerprints, photographs, and DNA whenever
one of its agents makes an arrest. See Internal
Revenue Manual, Part 9 Criminal Investigations, Ch. 4
Investigative Techniques, Section 12 Arrests, §
checked 01/04/2018. Therefore, because the IRS directs
fingerprints be taken from arrestees like Mr. Buller, the
Attorney General's regulations also direct that DNA shall
the Bail Reform Act, the statute informing this court's
determination whether to release Mr. Buller on bail and, if
so, what conditions need be imposed, also addresses DNA
collection. The Bail Reform Act provides that the court may
release Mr. Buller on personal recognizance “subject to
the condition that the person cooperate in the collection of
a DNA sample from the person if the collection of such a
sample is authorized pursuant to section 3 of the DNA
Analysis Backlog Elimination Act of 2000 (42 U.S.C.
14135a).” See 18 U.S.C. § 3142(b).
Because § 40702(a)(1)(A) and its implementing
regulation, 28 C.F.R. § 2812(b), require the collection
of DNA in Mr. Buller's case, the Bail Reform Act also
requires the collection of a DNA sample from Mr. Buller as a
condition of his release.
court concludes based on the plain language of the various
applicable statutes and regulations that the collection of a
DNA sample from Mr. Buller is required as a condition of his
release on bail. The court then turns to the question whether
this requirement is constitutional.
Whether Collection of DNA from a Pretrial Misdemeanor
Arrestee is Constitutional
government never acknowledges any distinction in its analysis
of the application of the above statutes to the fact that Mr.
Buller is charged with misdemeanor offenses only. Mr. Buller
chooses to represent himself in this matter and is not
trained in the law. Therefore, the parties have given the
court little legal guidance on the issue. It appears Mr.
Buller is invoking the Fourth Amendment in support of his
resistance to ...