United States First Circuit

In plaintiff's suit challenging the government's retention and use of his DNA profile and sample now that he has successfully completed his term of probation for his federal conviction for making a false statement in violation of 18 U.S.C. section 1001(a)(2), dismissal of the complaint for failure to state a claim upon which relief may be granted is affirmed where: 1) the present use of plaintiff's DNA profile - the retention and matching of his lawfully obtained profile against other profiles in the government database - does not constitute a search within the meaning of the Fourth Amendment; 2) plaintiff has not sufficiently alleged any other present or imminent uses of his DNA profile to support an argument that his profile is being subjected to a new search; 3) plaintiff has failed to allege any present or imminent analysis of his DNA sample, thus, providing no factual basis for the argument that a future analysis of his sample would constitute a separate Fourth Amendment search; and 4) plaintiff has waived his continuing seizure challenge to the retention of his sample.

Appellate Information

• Decided 08/11/2010
• Published 08/12/2010

Judges

• LIPEZ

Court

• United States First Circuit

Counsel

• For Appellant:
  
• Judith H. Mizner, Charles W. Scarborough