Appeals court says DNA test violated Las Vegas inmate's rights - Breaking News

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Jun. 23, 2009
Copyright © Las Vegas Review-Journal

Appeals court says DNA test violated Las Vegas inmate's rights

By ADRIENNE PACKER
LAS VEGAS REVIEW-JOURNAL

An appeals court panel ruled today that a Metropolitan Police Department detective violated an inmate’s rights when he forcefully extracted a DNA sample to determine whether the sex offender was involved in old sex offense cases.

In a 2-1 vote, a panel of the 9th U.S. Circuit Court of Appeals ordered Kenneth Friedman’s case back to federal court in Las Vegas, where U.S. District Judge James Mahan had dismissed it in 2005.

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Friedman claimed his Fourth Amendment rights were violated after he was arrested in 2003 on charges related to stalking someone at a health club and making threatening calls.

As a pretrial detainee, he refused to submit to a DNA test requested by Las Vegas police Detective Dolphus Boucher.

Boucher received permission from Clark County Deputy District Attorney Ellisa Luzaich to place Friedman’s DNA in a cold case bank, the opinion states.

Friedman said he was in shackles and chained to a metal bar when Boucher forcefully swabbed his mouth.

In dismissing Friedman’s case, Mahan said Boucher and Luzaich were entitled to “qualified immunity,” which shields government officials from being sued for violating an individual’s constitutional rights.

Two of the three judges sitting on the appellate panel said authorities had no right to forcefully take Friedman’s DNA sample for the purpose of placing it in a cold case bank.

They also noted the DNA was never entered into the cold case database.

“Neither the Supreme Court nor this court has ever ruled that law enforcement officers may conduct suspicionless searches on pretrial detainees for reasons other than prison security,” the opinion written by Judge Sidney Thomas stated.

Thomas also dismissed the qualified immunity argument, because Friedman’s rights were clear when Boucher took the sample.

The opinion states that Friedman was arrested in 1980 and pleaded guilty to rape in Montana. He was released in 2001 and moved to Las Vegas. He was not on parole or probation when he was arrested by police.

“The Nevada authorities extracted the DNA from Friedman, not because they suspected he had committed a crime, nor to aid in his reintegration into society, nor as a matter of his continuing supervision,” Thomas wrote. “Their purpose was simply to gather human tissue for a law enforcement databank, an objective that does not cleanse an otherwise unconstitutional search.”

Thomas said the proper process for the detective would have been to secure a search warrant. He noted the request probably would have been denied, however, because no probable cause existed.

The sole dissenting vote came from Judge Consuelo Callahan, who called the “minimally invasive search 'reasonable.’ ”

Callahan said inmates should expect little privacy under the Fourth Amendment. She also noted that the government has an interest in identifying repeat sex offenders.

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

Judge Jane Roth sided with Thomas.

Contact reporter Adrienne Packer at apacker@reviewjournal.com or 702-384-8710.

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Please enter your name Name: Please enter your email Email: Please enter a comment COMMENTS : (word count limit is 300) You have reached the maximum number of words allowed Current Word Count: Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background. John Deaux wrote on June 23, 2009 11:47 PM: Hey Gabriel, put your horn down, and go blow yourself. Luzaich and Boucher were trying to protect us from sex offenders, which makes me wonder why you are so swinish in the defense of sex offender Friedman. The fact that Friedman is a convicted sex offender provided Nevada with additional reasons for seeking a DNA sample. The state has a significant interest in monitoring sex offenders and solving crimes. “Sex offenders are a serious threat in this Nation.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003) (quoting McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion)). “[T]he victims of sex assault are most often juveniles,” and “[w]hen convicted sex offenders reenter society,they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault.” Id. (quoting McKune, 536 U.S. at 32-33). 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. Luzaich and Boucher should ask for en banc reconsideration, or take it to the U.S. Supreme Court. John Deaux wrote on June 23, 2009 11:35 PM: No, peterson, his swab was not taken "just for the heck of it". Here's his background from the Opinion: "Friedman is a violent sex offender who has spent a significant portion of his life in prison having been convicted of several rapes in Ohio and Montana. Friedman’s journey through the criminal justice system began in Ohio where he was convicted in 1975 of felony rape and felony aggravated burglary and sentenced to a term of four to twenty-five years. After serving several years in prison, he moved to Montana and after being arrested and charged in 1980 with a variety of felony offenses pled guilty to two counts of felony sexual intercourse without consent, one count of felony aggravated assault, and three counts of misdemeanor theft. Although Friedman was originally sentenced to serve forty years in prison, twenty of those years were later suspended, and he was designated a “dangerous offender” for purposes of parole eligibility based on the court’s finding that he presented a danger to the public. After completing his sentence, Friedman moved to Las Vegas, Nevada in 2001. The State of Montana’s Department of Corrections sent a letter to Friedman’s Nevada residence notifying him that as a designated sex offender he was required to submit a DNA sample pursuant to Montana law, and that he should contact a sergeant in the Clark County Sheriff’s Department in Nevada to schedule an appointment to provide a DNA sample. Friedman never complied. In August 2002, Las Vegas police detained and questioned Friedman for stalking an individual at a health club and making a threatening telephone call. They requested that Friedman provide a DNA sample, he refused. Friedman was searched or arrested at least a half dozen times by police officers. On February 10,2003, Friedman was arrested and charged with indecent exposure and lewdness." Buccal Swab Friedman Now. Gabriel wrote on June 23, 2009 11:26 PM: Hey detective, you want everyone to follow the law, but you don't want to follow it yourself. Go eff yourself, you dirty, corrupt pig! doug peterson wrote on June 23, 2009 08:44 PM: lol how does not allowing this search going to "save a five year old girl" from rape in the future. Sometimes you people get so fired up to get the pitchforks you don't think. The police weren't even taking the swab for a case, just taking it because they felt in the mood. The courts don't make rules like this for the "scumbag" they make them for the next 50 people who are completely innocent but have to be "sampled" because a DA and cop feel like it. I doubt you two would want to be sampled. John Deaux wrote on June 23, 2009 08:34 PM: I interpret this to mean that having stripped detective Boucher and deputy district attorney Luzaich of qualified immunity, they are not both exposed to personal liability for the minimally invasive steps of securing DNA from a convicted sex offender. I wonder how these two judges would rule if they were exposed to personal liability if this miscreant goes on to rape someone else based on their decision? RB wrote on June 23, 2009 05:28 PM: I suppose these officials who have determined that this scumbags 'rights' were violated, will wait until he violates the 'rights' of a 5 year old before dmeanding a DNA sample.....or until the next child shows up in a dumpster!