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The "Snowstorm" That Wasn’t There, or, Why DNA Doesn’t Get Collected From Every Misdemeanant On Probation

Mark Twain may have said that the coldest winter he ever spent was a summer in California. Or maybe not. Regardless, the quote suggests itself as the inspiration behind the United States Attorney’s Office for the Northern District of California‘s charging decision in United States v. Baker.

Robert Baker was a passenger in car in a high-speed chase in Northern California. The chase was “speedy” in two senses – in addition to driving fast, there was methamphetamine in the car.

The chase ended badly for the chasee – the police caught up to the car and charged Mr. Baker with conspiracy to possess with intent to distribute methamphetamine.

In the car, the police found only 10 grams of meth. The government charged Mr. Baker, though, with much more, based on the testimony of two police officers who said that Mr. Baker was throwing bags of white powder at their car, which would explode on the windshield and create a “snowstorm” effect for a few seconds.

The government asserted that the white powder was meth, and that the “snowstorm” was caused by a much larger quantity of meth, more than 50 grams, and that Mr. Baker should be punished for having that larger amount of the drug.

Mr. Baker called another officer in his defense, who said he was a part of the chase and saw no “snowstorm.” He also produced radio runs from the police that were free of any winter weather reports.

The jury went with Mr. Baker, acquitting him of the felony conspiracy charge and, instead, convicting him of a misdemeanor based on the drugs in the car.

At his sentencing for the misdemeanor, he was placed on probation for three years.

The sentencing judge, as a condition of probation, ordered that Mr. Baker be required to provide DNA to the Attorney General.

Mr. Baker appealed this condition of probation, and asked the Ninth Circuit Court of Appeals to order the destruction of all the DNA he had provided.

A sentencing court can only order that DNA be collected if it has the authority from Congress to enter such an order. The statute is 42 U.S.C. § 14135a.

As it happens, the statute provides no ability for a district court to order DNA collected from someone who is on probation, and, therefore not in custody, and who was only convicted of a misdemeanor.

So, if Mr. Baker had been convicted of a felony, the government could take his DNA for the national DNA database. If he was in jail, even for a little bit, the government could take his DNA for the national DNA database. But with a misdemeanor conviction and probation, Mr. Baker’s DNA gets to stay with him.*

The Ninth Circuit reversed, remanded, and ordered all the DNA already collected destroyed.

* Did you know DNA evidence can be faked? Check out this article in the New York Times.

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