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United States v. Buller

United States District Court, D. South Dakota, Southern Division

January 5, 2018





         Defendant 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. § 7203.


         Mr. 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.

         During 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.


         A. The Taking of a DNA Sample is Authorized

         Federal 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).[1]

         The 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).

         The 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, § See, last 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 be taken.

         Finally, 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).”[2] 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.

         The 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.

         B. Whether Collection of DNA from a Pretrial Misdemeanor Arrestee is Constitutional

         1. Fourth Amendment

         The 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 ...

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