United States v. Pool

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10303

Plaintiff-Appellee, D.C. No.

v.  2:09-cr-00015-

JERRY ARBERT POOL, EJG-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Edward J. Garcia, District Judge, Presiding

Argued and Submitted

December 7, 2009—San Francisco, California

Filed September 14, 2010

Before: Mary M. Schroeder and Consuelo M. Callahan,

Circuit Judges, and Carlos F. Lucero,* Circuit Judge.

Opinion by Judge Callahan;

Concurrence by Judge Lucero;

Dissent by Judge Schroeder

*The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,

sitting by designation.

14013

UNITED STATES v. POOL 14017

COUNSEL

Daniel J. Broderick, Federal Defender, and Rachelle Barbour

(argued), Sacramento, California, for defendant-appellant

Jerry Arbert Pool.

Michael Risher, San Francisco, California, for amicus curiae

the American Civil Liberties Union Foundation of Northern

California.

Lawrence G. Brown, United States Attorney, and Sean C.

Flynn (argued), Assistant United States Attorney, Sacra-

mento, California, for plaintiff-appellee the United States.

OPINION

CALLAHAN, Circuit Judge:

Jerry Arbert Pool challenges the district court’s implemen-

tation of 18 U.S.C. § 3142(b) and (c)(1)(A), requiring him to

give a DNA sample as a condition of his pre-trial release.

14018 UNITED STATES v. POOL

Applying the totality of the circumstances test, we affirm the

district court. We hold that where a court has determined that

there is probable cause to believe that the defendant commit-

ted a felony, the government’s interest in definitively deter-

mining the defendant’s identity outweighs the defendant’s

privacy interest in giving a DNA sample as a condition of pre-

trial release in cases in which the government’s use of the

DNA is limited to identification purposes and there is no indi-

cation that the government intends to use the information for

any other purpose.

I

On January 8, 2009, Pool was charged in the Eastern Dis-

trict of California by indictment with possessing and receiving

child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and

2253. Pool was arrested and brought to court for his arraign-

ment on January 23, 2009. Pool had no prior criminal record

and he entered a plea of not guilty. The magistrate judge

ordered Pool released on a $25,000 unsecured bond on the

condition that he obey pre-trial conditions. Pool consented to

all pre-trial conditions except that he provide a DNA sample.

The court stayed the DNA collection to allow the parties to

brief the issue. Pool challenges the constitutionality of amend-

ments to the Bail Reform Act, 18 U.S.C. § 3142(b) and

(c)(1)(A), which require the provision of a DNA sample as a

condition for pre-trial release.1 This condition applies to most,

1

The Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1), provides:

(b) Release on personal recognizance or unsecured appear-

ance bond.—The judicial officer shall order the pretrial release

of the person on personal recognizance, or upon execution of an

unsecured appearance bond in an amount specified by the court,

subject to the condition that the person not commit a Federal,

State, or local crime during the period of release and 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

UNITED STATES v. POOL 14019

if not all, federal criminal charges. See 42 U.S.C.

§ 14135(a)(1)(A).2

The government defines DNA as “a double-helix shaped

nucleic acid held together by hydrogen bonds and composed

of base pairings of Adenine and Thymine, and Cytosine and

Guanine, which repeat along the double-helix at different

regions (referred to as short-tandem-repeat loci, or STR

loci).” In United States v. Kincade, 379 F.3d 813 (9th Cir.

2004) (en banc), we stated:

Through the use of short tandem repeat technology

is authorized pursuant to section 3 of the DNA Analysis Backlog

Elimination Act of 2000 (42 U.S.C. 14135a), unless the judicial

officer determines that such release will not reasonably assure the

appearance of the person as required or will endanger the safety

of any other person or the community.

(c) Release on conditions.—(1) If the judicial officer determines

that the release described in subsection (b) of this section will not

reasonably assure the appearance of the person as required or will

endanger the safety of any other person or the community, such

judicial officer shall order the pretrial release of the person—

(A) subject to the condition that the person not commit a Federal,

State, or local crime during the period of release and 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); and

(B) subject to the least restrictive further condition, or combina-

tion of conditions, that such judicial officer determines will rea-

sonably assure the appearance of the person as required and the

safety of any other person and the community, which may

include the condition that the person—

2

Section 14135a(a)(1)(A) provides that “[t]he Attorney General may, as

prescribed by the Attorney General in regulation, collect DNA samples

from individuals who are arrested, facing charges, or convicted or from

non-United States persons who are detained under the authority of the

United States.”

14020 UNITED STATES v. POOL

(“STR”), the Bureau analyzes the presence of vari-

ous alleles located at 13 markers (or loci) on DNA

present in the specimen. These STR loci are each

found on so-called “junk DNA” — that is, non-genic

stretches of DNA not presently recognized as being

responsible for trait coding — and “were purposely

selected because they are not associated with any

known physical or medical characteristics.” H.R.

Rep. No. 106-900(I) at *27. Because there are

observed group variances in the representation of

various alleles at the STR loci, however, DNA pro-

files derived by STR may yield probabilistic evi-

dence of the contributor’s race or sex. Future of

Forensic DNA Testing 35, 39-42. Even so, DNA

profiles generated by STR are highly individuated:

Due to the substantial number of alleles present at

each of the 13 STR loci (between 7 and 20, see

Future of Forensic DNA Testing 41) and wide-

spread variances in their representation among

human beings, the chance that two randomly

selected individuals will share the same profile are

infinitesimal — as are the chances that a person ran-

domly selected from the population at large will

present the same DNA profile as that drawn from

crime-scene evidence. See Future of Forensic DNA

Testing 19-22, 39-42.

Id. at 818-19 (footnotes omitted). We further recognized,

however, that “[r]ecent studies have begun to question the

notion that junk DNA does not contain useful genetic pro-

gramming material.” Id. at 818 n.6.

Once collected, a DNA sample is turned over to the Direc-

tor of the Federal Bureau of Investigation (“FBI”). 42 U.S.C.

§ 14135a(b). The FBI analyzes the DNA sample and includes

the results in the Combined DNA Index System (“CODIS”),

an FBI-created national database that catalogues DNA pro-

files from numerous sources. CODIS “allows State and local

UNITED STATES v. POOL 14021

forensics laboratories to exchange and compare DNA profiles

electronically in an attempt to link evidence from crime

scenes for which there are no suspects to DNA samples of

convicted offenders on file in the system.” H.R. Rep. 106-

900(I) at 8 (2000). The Attorney General has issued regula-

tions concerning the taking of DNA samples from arrestees.

28 CFR Part 28, 73 FR 74932, 2008 WL 5155929. The regu-

lations allow “DNA samples generally to be collected, along

with a subject’s fingerprints, as part of the identification pro-

cess,” but they need not be if the collection of DNA samples

“would not be warranted or feasible.”3 73 FR at 74934.

Pool objected to giving a DNA sample primarily on the

ground that doing so violated his rights under the Fourth

Amendment. He also challenged the law as unconstitutional

under the Eighth Amendment, and the Due Process Clause

and violative of the separation of powers doctrine.

Citing our opinion in Kincade, 379 F.3d at 839-40, the

magistrate applied the “totality of the circumstances” frame-

work to consider the constitutionality of the statute. He deter-

mined:

The judicial or grand jury finding of probable cause

within a criminal proceeding is a watershed event

which should be viewed differently from mere pre-

judicial involvement gathering of evidence. After

such a judicial finding, a defendant’s liberty may be

greatly restricted — even denied. As part of his pre-

trial release, defendant may be deprived of his very

liberty; he can be subject to electronic monitoring;

3

The regulation notes, “[f]or example, in relation to non-arrestees, DHS

will not be required to collect DNA samples from aliens who are finger-

printed in processing for lawful admission to the United States, or from

aliens from whom DNA-sample collection is otherwise not feasible

because of operational exigencies or resource limitations.” 73 FR at

74934.

14022 UNITED STATES v. POOL

he may be ordered to obey a mandatory curfew.

. . . These conditions are almost identical to those

conditions which can be imposed on a probationer or

parolee for whom a DNA testing requirement has

been found appropriate under a totality of the cir-

cumstances standard. The court finds that an up-front

requirement for finding probable cause that the

defendant has committed the charged felony places

the issue much more closely with those cases utiliz-

ing a totality of the circumstances standard.

Applying the totality of the circumstances standard, the mag-

istrate concluded that “the decision to impose the DNA test-

ing requirement on pre-trial detainees or releasees seems

clearly warranted, if not compelling,” because “an arrestee’s

identity obviously becomes a matter of legitimate state inter-

est,” and an arrestee “has a diminished expectation in privacy

in his own identity.”

In denying Pool relief, the magistrate stressed what his

holding did not encompass.

It does not authorize DNA sampling after citation or

arrest for infractions or misdemeanors, as in these

cases there will be no judicial finding of probable

cause soon after the arrest or citation, or no grand

jury finding before or after the arrest. See Fed. R.

Crim. P. 7(a). It does not authorize police officials to

perform DNA sampling prior to a judicial finding of

probable cause which must be made within 48 hours

after arrest and detention. Again, it is the finding of

probable cause on criminal charges which allows the

court to set release conditions similar to those of pro-

bation and parole, which is the underpinning of the

court’s holding in this case.

The magistrate stayed the DNA collection pending Pool’s

appeal to the district court judge. The district judge conducted

UNITED STATES v. POOL 14023

a de novo review, found the magistrate’s findings and analysis

to be “exhaustive, well reasoned and supported by the

record,” and reiterated that “no Fourth Amendment or other

Constitutional violation is caused by the universal require-

ment that a charged defendant undergo a ‘swab test’ or blood

test when necessary, for the purposes of DNA analysis to be

used solely for criminal law enforcement identification pur-

poses.”

On July 16, 2009, the district court issued an order denying

the motion to amend the release order and upholding DNA

testing. Pool filed a timely notice of appeal and requested a

stay of the DNA collection, which the magistrate granted.

II

Title 18 U.S.C. § 3145(c) provides for an immediate appeal

from a release or detention order. The district court’s determi-

nation that the mandatory DNA collection provision of the

Bail Reform Act does not violate Pool’s constitutional rights

is reviewed de novo. United States v. Schales, 546 F.3d 965,

971 (9th Cir. 2008) (“A challenge to the constitutionality of

a federal statute is a question of law that is reviewed de

novo.”).

[1] Our review of the district court’s order starts with the

recognition that “[t]he compulsory extraction of blood for

DNA profiling unquestionably implicates the right to personal

security embodied in the Fourth Amendment, and thus consti-

tutes a ‘search’ within the meaning of the Constitution.” Kin-

cade, 379 F.3d at 821 n.15; see also Friedman v. Boucher,

580 F.3d 847, 852 (9th Cir. 2009) (holding that “[t]here is no

question that the buccal swab constituted a search under the

Fourth Amendment”).

[2] Accordingly, as the statute’s compulsion of a DNA

sample does not contemplate the issue of a search warrant, the

provision will pass constitutional muster only if it “falls

14024 UNITED STATES v. POOL

within certain established and well-defined exceptions to the

warrant clause.” United States v. Brown, 563 F.3d 410, 414-

15 (9th Cir. 2009) (internal quotation and citation omitted).

Here, the district court considered two exceptions to the war-

rant clause, the “special needs” test and the “totality of the cir-

cumstances” test.

A. The Special Needs Test

The use of the special needs test would be problematic. The

test was developed in cases outside of the law enforcement

context and the Supreme Court has been leery of applying it

to criminal cases. See Ferguson v. City of Charleston, 532

U.S. 67, 84 (2001). The Court’s language in Ferguson renders

the government’s suggestion that “special law enforcement

interests” can be distinguished from ordinary law enforcement

purposes questionable at best.4 Id.; see also Friedman, 580

F.3d at 853 (noting that “[b]ecause the ‘special needs’ excep-

tion applies only to non-law enforcement purposes, and the

State’s interest here is the use of data for purely law enforce-

ment purposes, the ‘special needs’ exception is inapplicable”);

and United States v. Scott, 450 F.3d 863, 870 (9th Cir. 2006)

(commenting that “[c]rime prevention is a quintessential gen-

eral law enforcement purpose and therefore is the exact oppo-

site of a special need”).

We need not, however, determine whether the DNA collec-

tion provision could meet the special needs test because our

precedent directs us to apply the totality of the circumstances

4

The Court noted:

Because law enforcement involvement always serves some

broader social purpose or objective, under respondents’ view, vir-

tually any nonconsensual suspicionless search could be immu-

nized under the special needs doctrine by defining the search

solely in terms of its ultimate, rather than immediate, purpose.

Such an approach is inconsistent with the Fourth Amendment.

532 U.S. at 84 (footnotes omitted).

UNITED STATES v. POOL 14025

test. In United States v. Kriesel, 508 F.3d 941, 947 (9th Cir.

2007), we held:

Taking our cue from Samson [v. California, 547 U.S.

843, 126 S. Ct. 2193 (2006)], we reaffirm that “the

touchstone of the Fourth Amendment is reasonable-

ness,” id. at 2201 n.4, and adopt the “general Fourth

Amendment approach,” which “examin[es] the total-

ity of the circumstances to determine whether a

search is reasonable.” Id. at 2197 (quoting United

States v. Knights, 534 U.S. 112, 118, . . . (2001))

(internal quotation marks omitted). “Whether a

search is reasonable ‘is determined by assessing, on

the one hand, the degree to which it intrudes upon an

individual’s privacy, and on the other, the degree to

which it is needed for the promotion of legitimate

governmental interests.’ ” Id. (quoting Knights, 534

U.S. at 118-19).

See also Kincade, 379 F.3d at 832 (“We today reaffirm the

continuing vitality of Rise [v. Oregon, 59 F.3d 1556 (9th Cir.

1995)] — and hold that its reliance on a totality of the circum-

stances analysis to uphold compulsory DNA profiling of con-

victed offenders both comports with the Supreme Court’s

recent precedents and resolves this appeal in concert with the

requirements of the Fourth Amendment.”). Accordingly, we

review the mandatory DNA collection provision under the

totality of the circumstances test.

B. The Totality of the Circumstances Test

[3] The totality of the circumstances test requires the court

to balance the intrusion upon the individual’s privacy with the

government’s legitimate interests. In Samson, the Supreme

Court stated: “[w]hether a search is reasonable ‘is determined

by assessing, on the one hand, the degree to which it intrudes

upon an individual’s privacy and, on the other, the degree to

which it is needed for the promotion of legitimate governmen-

14026 UNITED STATES v. POOL

tal interests.’ ” 547 U.S. at 848 (quoting Knights, 534 U.S. at

118-19). See also Kriesel, 508 F.3d at 952 (holding that in

Samson, the Supreme Court held that the totality of the cir-

cumstances test was the proper mode for analyzing a state

statute requiring DNA testing as a condition of supervised

release).

[4] However, our opinions suggest that there may be a pre-

requisite to the application of this test: there must be some

legitimate reason for the individual having less than the full

rights of a citizen. See Kincade, 379 F.3d at 833 (noting “the

well-established principle that parolees and other conditional

releasees are not entitled to the full panoply of rights and pro-

tections possessed by the general public”); see also Scott, 450

F.3d at 873 ( “Scott had a reduced expectation of privacy

because he had signed a form that, on its face, explicitly

waived the warrant requirement and implicitly (through the

use of the word ‘random’) waived the probable cause require-

ment for drug testing.”). But see Rise, 59 F.3d at 1559 (“Even

in the law enforcement context, the State may interfere with

an individual’s Fourth Amendment interests with less than

probable cause and without a warrant if the intrusion is only

minimal and is justified by law enforcement purposes.”).

[5] Here, the magistrate found that the “judicial or grand

jury finding of probable cause” was the “watershed event”

that distinguished Pool from the general public and allowed

for the application of the totality of the circumstances test. He

noted that at this point, “defendant may be deprived of his

very liberty; he can be subject to electronic monitoring; he

may be ordered to obey a mandatory curfew.” Certainly, the

magistrate is correct that at this point the government may,

through the judiciary, impose conditions on an individual that

it could not otherwise impose on a citizen. Thus, the determi-

nation that there is probable cause to believe Pool committed

UNITED STATES v. POOL 14027

a federal felony, allows the application of the totality of the

circumstances test.5

Pool argues, citing Scott, that the presumption of innocence

to which he is entitled precludes the application of the totality

of the circumstances test. This approach, however, was

rejected by the Supreme Court in Bell v. Wolfish, 441 U.S.

520, 533 (1979), when it stated that the presumption of inno-

cence “has no application to the determination of the rights of

a pretrial detainee during confinement before his trial has ever

begun.” Indeed, in United States v. Salerno, 481 U.S. 739,

749 (1987), the Supreme Court indicated that with a person’s

arrest the government may have grounds to limit the

arrestee’s rights. The Court noted:

Even competent adults may face substantial liberty

restrictions as a result of the operation of our crimi-

nal justice system. If the police suspect an individual

of a crime, they may arrest and hold him until a neu-

tral magistrate determines whether probable cause

exists. Gerstein v. Pugh, 420 U.S. 103, . . . (1975).

Finally, respondents concede and the Court of

Appeals noted that an arrestee may be incarcerated

until trial if he presents a risk of flight, see Bell v.

Wolfish, 441 U.S. at 534, . . . or a danger to wit-

nesses.

481 U.S. at 749. When Pool was brought before the magis-

trate in this case, whatever the prerequisite for the application

of the totality of the circumstances test, that requirement was

met. Accordingly, we turn to balancing the intrusion upon

Pool’s privacy against the government’s legitimate interests.

5

As this is what the district court held, we need not, and do not, consider

what other circumstances might allow for the use of the totality of the cir-

cumstances test.

14028 UNITED STATES v. POOL

1. The Degree of Intrusion on Pool’s Privacy

[6] Precedent establishes that the physical intrusion

required to take a DNA sample is minimal. Skinner v. Railway

Labor Executives’ Ass’n., 489 U.S. 602, 625 (1989) (“We said

also that the intrusion occasioned by a blood test is not signif-

icant, since such ‘tests are a commonplace in these days of

periodic physical examinations and experience with them

teaches that the quantity of blood extracted is minimal, and

that for most people the procedure involves virtually no risk,

trauma, or pain.’ ”) (internal citation omitted); Kriesel, 508

F.3d at 948 (“The additional privacy implications of a blood

test collecting DNA, as opposed to a cheek swab or other

mechanism, do not significantly alter our analysis.”).

Pool’s greater concern, however, is not with the physical

intrusiveness of the DNA testing, but with the intrusive nature

of the information gathered by the government. The govern-

ment, however, asserts that it only seeks to determine Pool’s

identification. Indeed, it is doubtful that Pool, or any other

individual having been indicted by a grand jury or having

been subjected to a judicial determination of probable cause,

has any right to withhold his or her true identification from

the government. See Kincade, 379 F.3d at 837 (“the DNA

profile derived from the defendant’s blood sample establishes

only a record of the defendant’s identity — otherwise per-

sonal information in which the qualified offender can claim

no right of privacy once lawfully convicted of a qualifying

offense (indeed, once lawfully arrested and booked into state

custody).”); Jones v. Murray, 962 F.2d 302, 306 (4th Cir.

1992) (“when a suspect is arrested upon probable cause, his

identification becomes a matter of legitimate state interest and

he can hardly claim privacy in it”).

The government argues that by design and law, the collec-

tion of DNA is limited to individual identification. The 13

markers on the DNA which the government uses to identify

the donor “were purposely selected because they are not asso-

UNITED STATES v. POOL 14029

ciated with any known physical or medical characteristics.”

Kincade, 379 F.3d at 818 (internal quotation and citation

omitted). See also Kriesel, 508 F.3d at 947. In implementing

the Act, the Department of Justice stated that DNA profiles

are to be used for identification purposes.6 73 FR at 74937-38.

The statute imposes criminal and financial penalties for

improper use of DNA samples, 42 U.S.C. § 14135e(c), and

limits access to DNA materials, 42 U.S.C. § 14133(b)(1)(A)-

(C). There are also provisions for the expungement of the

DNA information if the defendant is acquitted or the felony

charges are dismissed. 42 U.S.C. § 14132(d)(1)(A).

Pool and the amicus raise two objections. First, they argue

that the DNA information collected could reveal much more

than the person’s identification. CODIS may focus on the

junk DNA, but the DNA sample contains all of an individu-

al’s DNA. Pool is not comforted by the government’s assur-

ance that it will not look at other aspects of a person’s DNA.

Second, Pool posits that the government through the use of

familial comparisons may suspect innocent people simply

because their DNA has some strands that are similar to the

defendant’s DNA. Pool and the amicus assert that these argu-

ments help distinguish DNA from fingerprints because finger-

prints only identify an individual; they contain no information

as to an individual’s heritage or predilections.

Addressing Pool’s concerns in inverse order, it is not clear

6

The Department of Justice’s regulation states:

the DNA profiles retained in the system are sanitized “genetic

fingerprints” that can be used to identify an individual uniquely,

but do not disclose an individual’s traits, disorders, or disposi-

tions. The rules governing the operation of CODIS reflect its

function as a tool for law enforcement identification, and do not

allow DNA information within the scope of the system to be used

to derive information concerning sensitive genetic matters. See

42 U.S.C. §§ 14132(b), 14133(b)-(c), 14135e.

73 FR at 74937-38.

14030 UNITED STATES v. POOL

that familial comparisons raise a constitutional privacy issue

or, if they do, whose interests are violated. The concern with

familial comparisons or partial matching is that a review of

CODIS may disclose an individual whose DNA does not

match precisely to crime scene DNA from a perpetrator, but

is close enough to create a probability that the perpetrator is

a close relative to the identified individual. The familial match

is not implicated: by definition the match is not perfect, so the

government knows that the match is not the perpetrator. It is

questionable whether the rights of the perpetrator (if ulti-

mately identified through the use of familial comparisons) are

violated. This seems somewhat analogous to a witness look-

ing at a photograph of one person and stating that the perpe-

trator has a similar appearance which leads the police to show

the witness photos of similar looking individuals, one of

whom the witness identifies as the perpetrator. It is question-

able whether the person whose photograph helped focus the

inquiry, or whose familial comparison helped focus the

inquiry, has suffered any invasion of his or her constitutional

right to privacy.

Pool’s concerns about the government’s potential use of

DNA are understandable, but several factors mitigate those

concerns. First, in Kriesel and Kincade, we recognized that

the DNA collection system was designed not to reveal genetic

traits such as physical and medical characteristics. Kriesel,

508 F.3d at 947; Kincade, 379 F.3d at 818-19. Although there

is some scientific evidence to suggest that the “junk DNA”

that is the focus of CODIS may contain information that is not

“junk,” this, at most, indicates that the government might be

able to ascertain genetic traits from the 13 loci, not that it

actually could do so.7 Second, even if appellant and amicus

have shown that it is physically possible for the government

to extract genetic traits from the 13 loci, there is no evidence

7

There is no indication that Pool sought discovery or sought to intro-

duce expert testimony as to the government’s ability to extract genetic

traits from the DNA sample.

UNITED STATES v. POOL 14031

that the government could legally do so without further legis-

lation, or that the government has any intention of doing so.

As noted, 42 U.S.C. § 14133(b) limits the present use of DNA

information and the government asserts that Congress has

prohibited the alteration of the core loci without prior notice

and explanation to Congress. See P.L. 108-405 § 203(f).

[7] Third, the plurality opinion in Kincade considered and

rejected similar concerns as to the government’s potential use

of DNA information. The opinion noted:

But beyond the fact that the DNA Act itself provides

protections against such misuse, our job is limited to

resolving the constitutionality of the program before

us, as it is designed and as it has been implemented.

In our system of government, courts base decisions

not on dramatic Hollywood fantasies, . . . but on con-

cretely particularized facts developed in the cauldron

of the adversary process and reduced to an assess-

able record. If, . . . and when, some future program

permits the parade of horribles the DNA Act’s oppo-

nents fear — unregulated disclosure of CODIS pro-

files to private parties, genetic discrimination, state-

sponsored eugenics, . . .

— we have every confidence that courts will respond

appropriately.

As currently structured and implemented, how-

ever, the DNA Act’s compulsory profiling of qual-

ified federal offenders can only be described as

minimally invasive — both in terms of the bodily

intrusion it occasions, and the information it law-

fully produces.

379 F.3d at 837-38 (footnotes omitted) (emphasis added).

Although Kincade dealt with the taking of DNA from con-

victed offenders, the plurality’s determination that the infor-

mation produced by CODIS is minimally invasive is

14032 UNITED STATES v. POOL

applicable to this case. Furthermore, Pool has not offered any

evidence that might undermine our determination in Kincade.

[8] In sum, prior judicial decisions hold that the physical

invasion of a buccal swab or even a blood prick is minimal

and that Pool has little or no right to hide his identity from the

government. The nature of the privacy invasion, however, is

more difficult to evaluate because although CODIS is

designed only to facilitate identity, Pool raises non-frivolous

concerns that the government could use the DNA materials to

determine genetic traits. Nonetheless, the plurality opinion in

Kincade holds that the Act is “minimally invasive both in

terms of the bodily intrusion it occasions, and the information

it lawfully produces.” 397 F.3d at 838. We conclude that Pool

has not shown any greater intrusion on his privacy than did

Kincade.8

2. The Government’s Interests

[9] The government’s interests in DNA samples for law

enforcement purposes are well established. It is the most

accurate means of identification available.9 Furthermore,

8

Although Judge Gould in his concurring opinion in Kincade expressed

concern with the possible misuse of DNA information, 379 F.3d at 841-

42, he appears to have agreed with the plurality that the issue was not ripe

for judicial review. He posed the question of whether the DNA of a person

who had “wholly cleared their debt to society” should be erased, and

responds that in a proper case “where this issue is presented, we would

presumably need to weigh society’s benefit from retention of the DNA

records of a felon against that person’s right in a classical sense to priva-

cy.” Id.

9

See District Attorney’s Office for Third Judicial District v. Osborne,

129 S. Ct. 2308, 2327 (2009) (“DNA tests can, in certain circumstances,

establish to a virtual certainty whether a given individual did or did not

commit a particular crime.”) (internal quotations and citations omitted);

see also Kaemmerling v. Lappin, 553 F.3d 669, 681 (D.C. Cir. 2008)

(“DNA testing is the most reliable forensic technique for identifying crim-

inals when biological material is left at the crime scene.”) (internal quota-

tion and citations omitted); and United States v. Sczubelek, 402 F.3d 175,

184 (3d Cir. 2005) (noting that compared to fingerprints, “DNA is a fur-

ther — and in fact a more reliable — means of identification”).

UNITED STATES v. POOL 14033

unlike fingerprint evidence that requires that the perpetrator

leave a discernable fingerprint at the scene of a crime, it is

much more difficult for a perpetrator not to leave some DNA

evidence at the scene of a crime. We have recognized the gov-

ernment’s interests as “undeniably compelling” and “monu-

mental.” Kriesel, 508 F.3d at 949.

[10] In Kriesel, we addressed collecting DNA samples

from felons on supervised release. 508 F.3d at 947-50. Here,

we must evaluate the government’s interests in collecting a

DNA sample after a probable cause determination rather than

after a person’s conviction. Nonetheless, the government’s

interests remain substantial. There is usually a lengthy period

of time between an initial determination of probable cause

and a person’s trial (and even more time before a conviction

becomes final after an unsuccessful appeal). During this

period of time, the government has an interest in determining

whether the individual may be released pending trial without

endangering society and ensuring that he or she complies with

the conditions of his or her release. The collection of a DNA

sample allows the government to ensure that the defendant

did not commit some other crime and discourages a defendant

from violating any condition of his or her pretrial release.10 In

sum, many of the government’s interests in collecting a DNA

sample after a person’s conviction are present at this earlier

stage, with the possible exception of the particular needs that

arise when the government confines an individual, but these

needs are replaced by the equally legitimate concerns of

knowing the identity of the person being released to the public

and ascertaining and imposing conditions necessary to protect

the public.

10

In some instances, it is even possible that the collection of a DNA

sample from a defendant may produce exonerating evidence.

14034 UNITED STATES v. POOL

3. The Balance

[11] If not at the time that a person is arrested, certainly

once there has been a determination of probable cause to

believe that an individual has committed a federal felony, the

individual no longer has any “right” or legitimate expectation

of keeping his or her identity from the government. Kincade,

379 F.3d at 837. In light of the government’s legitimate inter-

ests in determining the true identity of the person, the balance

between those rights and the individual’s rights favors the

government, at least where, as here, the purpose and the effect

of requiring DNA are only to provide the government with the

person’s true identity.

[12] Here, Pool does not really challenge that identity is

the primary purpose of the Act. Rather, his concerns are that

despite the government’s disclaimer of other interests, the col-

lection of DNA, by its very nature, provides the government

access to intimate information concerning a person’s genetic

traits. We determine that in light of our precedent, these con-

cerns do not outweigh the government’s interests because

Pool has not shown that (1) the government could, at this

time, actually use the DNA information for arguably improper

purposes, (2) the government could do so without further leg-

islation, or (3) the government has any intent to so use the

information. Guided by our opinion in Kincade, we apply the

totality of the circumstances balancing test, and conclude that

the government’s legitimate interest in definitively identifying

Pool outweighs the intrusion into his privacy.11

11

Our use of the totality of the circumstances test is consistent with

opinions by the First, Third, Fourth, Fifth, Eighth, Eleventh and D.C. Cir-

cuits. See United States v. Weikert, 504 F.3d 1, 9 (1st Cir. 2007) (applying

“the general Fourth Amendment totality of the circumstances analysis to

[defendant’s] challenge to the DNA Act”)); United States v. Sczubelek,

402 F.3d 175, 184 (3d Cir. 2005) (stating that it believes “that it is appro-

priate to examine the reasonableness of the taking of the sample under the

more rigorous Knights totality of the circumstances test rather than the

UNITED STATES v. POOL 14035

4. Our perspective is consistent with the recent decisions

relied upon by Pool

The case by case balancing of the government’s asserted

legitimate interests and the intrusion into the individual’s pri-

vacy may be seen in our opinions in Friedman, 580 F.3d 847,

and Scott, 450 F.3d 863.

Friedman concerned the forcible extraction of a DNA sam-

ple by a state official from a person who was being held pend-

ing trial.12 We held that Nevada had failed to present

Griffin special needs exception); Jones, 962 F.2d at 306-07 (4th Cir. 1992)

(applying the totality of the circumstances framework); Grocman v.

United States Dep’t of Justice, 354 F.3d 411, 413-414 (5th Cir. 2004) (per

curiam) (noting that “Courts may consider the totality of circumstances,

including a person’s status as an inmate or probationer, in determining

whether his reasonable expectation of privacy is outweighed by other fac-

tors”); United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir. 2006) (fed-

eral DNA Act) (holding that “based on the totality of the circumstances,

the collection of DNA under the DNA Act for inclusion in the CODIS

database does not constitute an unreasonable search and seizure in viola-

tion of the Fourth Amendment”); Padgett v. Donald, 401 F.3d 1273, 1280

(11th Cir. 2005) (stating “[u]tilizing the Knights approach, we next

address whether the statute is reasonable under a totality of the circum-

stances analysis”); and Johnson v. Quander, 440 F.3d 489, 496 (D.C. Cir.

2006) (commenting that “[t]oday we join this unanimous body of author-

ity, and we conclude that the mandatory collection of Johnson’s DNA

sample was “reasonable” under the Fourth Amendment’s balancing test.”

(footnote omitted)). Notably, all of these cases upheld the collections of

DNA evidence before them under the specific statutes and circumstances

presented.

12

Our opinion in Friedman noted:

After Friedman repeatedly refused to voluntarily provide a DNA

sample, Boucher forced Friedman’s jaw open and forcefully took

a buccal swab from the inside of Friedman’s mouth. This search

was not related to the Nevada charges then-pending against

Friedman. Indeed, [the deputy district attorney] later represented

to a Nevada Justice Court that she had ordered the search to use

Friedman’s DNA in the investigation of cold cases. Friedman

was not a suspect in any of the cases.

580 F.3d at 851 (footnote omitted).

14036 UNITED STATES v. POOL

sufficient legitimate interests or needs to overcome the intru-

sion of personal privacy. The panel’s conclusion of its discus-

sion of the totality of the circumstances approach, or what it

refers to as the “reasonable” argument (580 F.3d at 856),

states:

The Nevada authorities extracted the DNA from

Friedman not because they suspected he had com-

mitted a crime, nor to aid in his reintegration into

society, nor as a matter of his continuing supervi-

sion. Their purpose was simply to gather human tis-

sue for a law enforcement databank, an objective

that does not cleanse an otherwise unconstitutional

search.

580 F.3d at 858.

Pool’s case, however, presents very different factors. First,

unlike the situation in Friedman, there has been a judicial

determination of probable cause to believe that Pool commit-

ted a federal felony. Second, the arguments that the opinion

in Friedman noted were not made by the state in that case are

made by the government in this case. Here, the government

has probable cause to believe that Pool committed the crime

and in determining conditions that would allow the release of

Pool to the public pending trial. Third, in Friedman, Nevada

proffered no statutory authority for collecting a DNA sample,

but here, the Attorney General seeks to enforce the Bail

Reform Act passed by Congress.13 In sum, this case presents

very different concerns both as to the individual’s legitimate

expectation of privacy and the government’s legitimate inter-

ests. By definition, the totality of the circumstances standard

requires that the court consider the individual facts presented

in each case. The determination that the circumstances in

13

Thus, unlike the search in Friedman, here the search was requested

according to “standardized criteria.” See Florida v. Wells, 495 U.S. 1, 4

(1990).

UNITED STATES v. POOL 14037

Friedman favored the individual does not control our determi-

nation that under the totality of the circumstances standard the

balance of the distinct facts in this case permits the mandatory

collection of DNA as a condition for pre-trial release.

The facts before us in Scott were also very different from

this case and raised distinct issues under the totality of the cir-

cumstances standard. The central issue in Scott was “whether

police may conduct a search based on less than probable

cause of an individual released while awaiting trial.” 450 F.3d

at 864. We were troubled by the assertion that the drug test

and the search of Scott’s house were valid because he had

consented to them as a condition of pre-trial release, and

determined that “Scott’s consent to any search is only valid if

the search in question (taking the fact of consent into account)

was reasonable.” 450 F.3d at 868. We concluded that Nevada

had failed to show that the searches were permissible under

the special needs approach, noting in passing that Scott’s pri-

vacy interest in his home was “at its zenith.” Id. at 871-72.

We also held that the search in Scott was not reasonable

under the totality of the circumstances approach. Id. at 872-

73. However, both the government’s legitimate interests, as

well as Scott’s privacy rights were different from the interests

and rights presently at bar. First, the government’s interest in

Scott was not in identifying Scott. Instead, it sought to condi-

tion his pre-trial release on his consent to random drug testing

and to having his home searched any time of the day or night.

450 F.3d at 865. While the government’s legitimate interest

in definitively identifying a defendant is well established,

Kriesel, 508 F.3d at 949, we have questioned the govern-

ment’s authority to otherwise intrude on a defendant’s privacy

rights.14 In Scott, we recognized that a person’s privacy inter-

14

In Scott, we explained:

The “unconstitutional conditions” doctrine, cf. Dolan v. City of

Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304

14038 UNITED STATES v. POOL

est in his home is at a zenith and is not usually reduced by a

person’s arrest or even a determination of probable cause. Id.

at 871-72. Moreover, we found the government’s alleged pur-

poses for imposing the waiver to be questionable. Id. at 870

(“We assume for purposes of our analysis that the non-law-

enforcement purpose — the interest in judicial efficiency —

is ‘primary’ in this case. But the connection between the

object of the test (drug use) and the harm to be avoided (non-

appearance in court) is tenuous.”). In addition, we noted that

the “government has no concern with integrating people like

Scott, who has never left the community, back into the com-

munity.” Id. at 874.

In Pool’s case, the government seeks only his definitive

identification which it relates to its ability to check on his

activities while on pre-trial release. Thus, while we are mind-

ful of our holding in Scott, we remain convinced that in this

case the government’s legitimate interests outweigh Pool’s

legitimate expectations of privacy.

[13] We recognize that there is language in Friedman and

Scott which may appear to be inconsistent with our decision

and our application of Kincade and Kriesel.15 We have plotted

(1994), limits the government’s ability to exact waivers of rights

as a condition of benefits, even when those benefits are fully dis-

cretionary. Government is a monopoly provider of countless ser-

vices, notably law enforcement, and we live in an age when

government influence and control are pervasive in many aspects

of our daily lives.

450 F.3d at 866 (footnote omitted).

15

For example, the opinion in Friedman notes “neither the Supreme

Court nor this court has ever ruled that law enforcement officers may con-

duct suspicion-less searches on pretrial detainees for reasons other than

prison security.” 580 F.3d at 856-57. However, while in Friedman the

state failed to show sufficient legitimate interests to outweigh Friedman’s

privacy interests, here, the application of the totality of the circumstances

test — as required by Kincade and Kriesel — leads to a different conclu-

UNITED STATES v. POOL 14039

a course based on the guidance provided by the Supreme

Court in Wolfish, 441 U.S. at 533, and Salerno, 481 U.S. at

749, that respects the concerns asserted in each of our cases.

This led us first to conclude that the probable cause determi-

nation by the district court allows for the application of the

totality of the circumstances standard. We then compared the

specific government interests and expectations of privacy in

this case to those asserted in the prior cases. We conclude that

where a court has determined that there is probable cause to

believe that the defendant committed a felony, the govern-

ment’s interest in definitively determining the defendant’s

identity outweighs the defendant’s privacy interest in giving

a DNA sample as a condition of pre-trial release where the

government’s use of the DNA is limited to 13 loci “purposely

selected because they are not associated with any known

physical or medical characteristics,” at least where, as here,

there is no evidence that the government may legally extract

any other information from the sample or that the government

has any intention of attempting to do so.

III

Pool also advances four other constitutional challenges to

being required to give a DNA sample in order to qualify for

pre-trial release. He asserts that “the mandatory DNA testing

and profiling condition” (1) “violates procedural due process

because it eliminates an independent judicial determination as

to the necessity of the condition,” (2) violates his “Eighth

Amendment right to be released on conditions that are not

excessive in light of his circumstances,” (3) “violates the sep-

aration of powers by depriving the court of its role in deter-

sion. The claim that neither the Supreme Court nor this court has previ-

ously reached the conclusion we do today, does not militate against our

application of the totality of the circumstances test to the particular facts

presented and concluding that the government’s legitimate interests out-

weigh Pool’s privacy interests.

14040 UNITED STATES v. POOL

mining release conditions,” and (4) “is an unconstitutional

extension of federal power.” We do not find any of these

arguments to be persuasive.

A. Pool has not shown that requiring him to provide

a DNA sample violates his rights to due process.

[14] Pool asserts that he was denied procedural due pro-

cess because the district court could not consider his specific

situation in determining whether to require a DNA sample.

This argument fails in light of the Supreme Court’s opinion

in Connecticut Department of Public Safety v. Doe, 538 U.S.

1, 4 (2003). See also Doe v. Tandeske, 361 F.3d 594, 596 (9th

Cir. 2004) (quoting Conn. Dep’t.). In Connecticut Department

of Public Safety, the Supreme Court held that the state’s deci-

sion to require registration as a sex offender on the basis of

a person’s prior conviction rather than on the basis of the per-

son’s dangerousness did not amount to a violation of due pro-

cess because “due process does not require the opportunity to

prove a fact that is not material to the State’s statutory

scheme.” 538 U.S. at 4. Here, Congress’s determination to

require a DNA sample as a condition of pre-trial release

where the district court has made a probable cause determina-

tion similarly does not deny Pool procedural due process.

[15] To the extent that Pool also claims a violation of sub-

stantive due process based on his fundamental “liberty interest

in remaining free of compelled DNA production,” his asser-

tions are not persuasive. As we have previously noted, at least

once a probable cause determination has been made, if not

before, Pool has no right to withhold his identification from

the government. See Kincade, 379 F.3d at 837; see also Jones,

962 F.2d at 306 (holding that “when a suspect is arrested on

probable cause, his identification becomes a matter of legiti-

mate state interest and he can hardly claim privacy in it”). In

addition, although Pool may have a right against the physical

invasion occasioned by giving a DNA sample, it is firmly

established that blood tests — which are considerably more

UNITED STATES v. POOL 14041

invasive than a cheek swab — are commonplace and not sig-

nificant invasions. Kincade, 379 F.3d at 836 (citing Skinner,

489 U.S. at 625). In light of these precedents, we cannot find

that requiring Pool to provide a DNA sample is a violation of

his right to substantive due process.16

B. Pool has not shown that requiring him to provide a

DNA sample violates his right under the Bail

Clause of the Eight Amendment.

Pool argues that requiring him to provide a DNA sample as

a condition for pre-trial release constitutes excessive bail

under the Eighth Amendment because “DNA testing and pro-

filing is simply not relevant to the two issues to be addressed

by pretrial conditions of release: assuring the appearance of

the defendant in the court case, and providing for the safety

of the community.” We do not find this argument persuasive.

In Salerno, the Supreme Court noted that “[t]he only arguable

substantive limitation of the Bail Clause is that the Govern-

ment’s proposed conditions of release or detention not be

‘excessive’ in light of the perceived evil.” 481 U.S. at 754.

Here, in light of Pool’s minimal interest against providing

identification, the limited nature of the intrusion, and the

potential value of the DNA identification in solving crimes

and deterring the commission of future crimes, we cannot say

that requiring a DNA sample is “excessive.”

C. Pool has not shown that requiring him to provide

a DNA sample violates the constitutional doctrine

of separation of powers.

Pool asserts, referencing United States v. Klein, 80 U.S.

128, 146-47 (1871), that Congress violated the separation of

powers doctrine in enacting the Bail Reform Act because “it

16

The alleged intrusion on any of Pool’s rights is also reduced by the

provision that the DNA sample may be expunged if he is found not guilty

or his case is dismissed. See 42 U.S.C. § 14132(d)(1)(A).

14042 UNITED STATES v. POOL

prescribes a rule for courts to follow without allowing courts

to exercise independent judicial power.” More recent prece-

dent renders Pool’s argument less than persuasive. In Chap-

man v. United States, 500 U.S. 453 (1991), the Supreme

Court noted that “Congress has the power to define criminal

punishments without giving the courts any sentencing discre-

tion,” and that “[a] sentencing scheme providing for individu-

alized sentences rests not on constitutional commands, but on

public policy enacted into statutes.” Id. at 467 (internal quota-

tions and citations omitted). Moreover, in United States v.

Lujan, 504 F.3d 1003, 1007 (9th Cir. 2007), we rejected a

separation of powers argument challenging the collection of

DNA from a convicted felon as a condition of supervised

release. We do not think that the expansion of the class of per-

sons covered by the statute changes the nature, or result, of

the separation of powers analysis.

D. Pool’s argument that requiring him to provide a

DNA sample is an unconstitutional extension of fed-

eral power is not well taken.

Finally, Pool attempts to argue that § 14135a is unconstitu-

tional because it “extends broadly to all individuals who are

arrested, facing charges, or convicted, without regard to

whether they fall within any federal criminal jurisdiction.”

Again, we do not find Pool’s assertion to be well taken. First,

as Pool admits, the district court here only interpreted the stat-

ute as it applies to federal arrestees, defendants and convicts.

We too limit our review to Pool’s claim as a person who has

been charged with a federal felony. In United States v. Rey-

nard, 473 F.3d 1008, 1021 (9th Cir. 2007), we rejected an

argument that a statute was “unconstitutional because the fed-

eral government lacks the authority under the Commerce

Clause to require a federal offender to provide a DNA sample

as a condition of his supervised release.”17 Although the stat-

17

We explained:

UNITED STATES v. POOL 14043

ute here at issue is broader than the statute before us in Rey-

nard, our reasoning in Reynard if not binding is persuasive.

IV

[16] In this case, we agree with the magistrate that his

finding of probable cause was a “watershed event” that allows

for the totality of the circumstances exception to the Fourth

Amendment’s warrant requirement. We conclude that here,

the government’s interest in definitively determining Pool’s

identity outweighs his privacy interest in giving a DNA sam-

ple as a condition of pre-trial release in part because the gov-

ernment’s use of the DNA is limited to identification purposes

and there is no indication that the government intends to use

the information for any other purpose or may legally do so.

Finally, we decline Pool’s claims that the mandatory DNA

collection provision of 42 U.S.C. § 3142(b) and (c)(1)(A) is

unconstitutional because it (1) violates his right to due pro-

cess, (2) violates his rights under the Bail Clause of the Eighth

Amendment, (3) violates the doctrine of separation of powers,

and (4) is an improper extension of federal power. The district

court’s order requiring Pool to give a DNA sample as a condi-

tion to pre-trial release is AFFIRMED.

Reynard’s argument lacks merit. The federal government’s

authority to regulate the conditions of a federal offender’s super-

vised release arises when the individual commits a federal crime.

The federal government is not required to demonstrate that it has

independent authority to impose each individual condition of

supervised release upon an offender. Nonetheless, in this

instance, the individual condition of supervised release at issue,

standing alone, is a valid exercise of the federal government’s

authority pursuant to its Commerce Clause power. Further, such

an exercise of Congress’s Commerce Clause power does not

offend principles of federalism.

473 F.3d at 1021-22.

14044 UNITED STATES v. POOL

LUCERO, Circuit Judge, concurring:

I concur in the majority opinion, but write separately for

two reasons. First, I seek to stress the narrowness of our hold-

ing, identifying several issues we do not decide today. Sec-

ond, I wish to state my basis for agreeing that Friedman v.

Boucher, 580 F.3d 847 (9th Cir. 2009), does not control the

outcome of this appeal.

I

A

1

In analyzing the interests of Pool at stake in this litigation,

the majority opinion properly distinguishes between the phys-

ical intrusion of a buccal swab and the more amorphous—and

more serious—invasion of privacy caused by governmental

collection of information contained in DNA samples and pro-

files. In addition, we must distinguish between the collection

of a DNA sample and use of a DNA profile.

An individual’s genome—the full complement of DNA

contained in each cell of his body—consists of several billion

base pairs of DNA. Henry T. Greely et al., Family Ties: The

Use of DNA Offender Databases to Catch Offenders’ Kin, 34

J.L. Med. & Ethics 248, 249 (2006). As the majority opinion

notes, DNA profiles used in the government’s Combined

DNA Index System (“CODIS”) do not contain information

about an individual’s entire genome; the profiles contain only

information about short tandem repeat (“STR”) occurring at

thirteen different points, “loci,” in the genome. (Majority Op.

14019 (citing United States v. Kincade, 379 F.3d 813, 818-19

(9th Cir. 2004) (en banc)).)

These STRs are stretches of DNA for which the DNA-

replication process appears to “stutter,” resulting in repeated

UNITED STATES v. POOL 14045

iterations of a specific sequence of base pairs. See Greely,

supra, at 249. For example, at a specific locus on a chromo-

some, a particular series of base pairs may appear three times

in a row for some people, but five times in a row for others.

Each variation in the number of repeats is identified as a dif-

ferent allele. See id. at 250. For each of the thirteen loci used

in the CODIS database, between seven and twenty-three

alleles appear in significant numbers among the population.

Id. The DNA profiles contained in the CODIS database con-

sist of a series of numbers corresponding to the length of

STRs at each of the selected loci. Id. The number of STRs

evaluated for an individual’s DNA profile represents a small

fraction of the STRs throughout a person’s genome. Id. at

249-50.

Although the biological purpose, if any, of STRs remains

debated, id., STRs are not “genes”: Unlike genes, STRs have

not been shown to code for specific molecules of ribonucleic

acid (“RNA”).1 Id.; see also Kincade, 379 F.3d at 818 (“These

STR loci are each found on . . . non-genic stretches of DNA

not presently recognized as being responsible for trait coding

. . . . ); Kaye, supra, at 54.

These DNA profiles differ significantly from DNA sam-

ples. The term “DNA sample” is defined by statute as “tissue,

fluid, or other bodily sample of an individual on which a

DNA analysis can be carried out.” 42 U.S.C. § 14135a(c)(1).

That is, the sample is made up of cells from an individual

which contain that person’s entire genome. If fully analyzed,

a sample would yield far more information than that con-

1

“Code for” is a term of art related to the process of transcription and

translation. If a stretch of DNA “codes for” RNA, that stretch will produce

a certain type of RNA during the process of transcription. RNA, in turn,

usually codes for protein, which means that the RNA will produce a cer-

tain protein during the process of translation. See Greely, supra, at 249.

These proteins can affect an individual’s physical characteristics, such as

eye color or propensity to develop certain diseases. See David H. Kaye,

GINA’s Genotypes, 108 Mich. L. Rev. First Impressions 51, 54 (2010).

14046 UNITED STATES v. POOL

tained in a CODIS profile, including information about all of

the trait-coding DNA in the individual’s genome—that is, the

precise content of each of her genes.

2

Despite Pool’s protestations to the contrary, at present

CODIS DNA profiles are essentially useless for all but identi-

fication purposes. In this respect, they are quite similar to the

information gained from fingerprinting and photograph-

ing—routine booking procedures.

Pool cites to several articles suggesting that so-called “junk

DNA”2 may actually play an important biological function,

including affecting how and when genes are expressed. E.g.,

Cole, supra note 2, at 56; Justin Gillis, Genetic Code of

Mouse Published; Comparison With Human Genome Indi-

cates ‘Junk DNA’ May be Vital, Wash. Post, Dec. 5, 2002, at

A1. Yet even these articles do not support Pool’s assertion:

“Although biologists are discovering functions for some types

of ‘junk DNA,’ none have yet claimed that the forensic STRs

do function.” Cole, supra note 2, at 56 (footnote omitted); see

also Gillis, supra (surmising that in the future a small percent-

age of non-coding DNA “will prove to be regulatory

regions”).

Even if the STRs used in CODIS contained some limited

biological information, the same is true of fingerprints and

photographs. As the majority opinion discusses, booking pho-

tographs might yield clues as to familial relationships.

(Majority Op. 14029-30.) Such photographs necessarily con-

tain information regarding an individual’s race, gender, and

2

“Junk DNA” is a term that generally refers to any non-genic DNA, that

is, stretches of DNA that do not code for RNA. Simon A. Cole, Is the

“Junk” DNA Designation Bunk?, 102 Nw. U.L. Rev. Colloquy 54, 56-57

(2007). STRs are one of several types of non-genic DNA sequence. See

Greely, supra, at 249.

UNITED STATES v. POOL 14047

ethnic characteristics. Fingerprints, too, may correlate with

certain traits. See Bert-Jaap Koops & Maurice Schellekens,

Forensic DNA Phenotyping: Regulatory Issues, 9 Colum. Sci.

& Tech. L. Rev. 158, 160 & n.4 (2008) (noting that finger-

print patterns may correlate with gender, homosexuality, eth-

nicity, and health conditions such as congenital heart disease).3

Pool’s efforts to categorically distinguish the information

contained in CODIS DNA profiles from that contained in fin-

gerprints are ultimately unpersuasive. Although the historical

basis for allowing fingerprinting is not entirely clear, the near

universal acceptance of the practice casts a long shadow over

this case. See Napolitano v. United States, 340 F.2d 313, 314

(1st Cir. 1965) (“[Fingerprinting defendants on pretrial

release] is universally standard procedure, and no violation of

constitutional rights.”); United States v. Iacullo, 226 F.2d 788,

793 (7th Cir. 1955) (“[Defendant’s] constitutional rights were

not violated when his fingerprints were taken and at the trial

used as a basis for comparison with fingerprints found on

newspapers used to wrap narcotics.”). As Judge Augustus

3

Pool points to one study showing some association between TH01(one

of the CODIS loci) and the insulin minisatellite (an STR not included in

the CODIS database), which correlates to susceptibility to polycystic

ovary syndrome, obesity, and type-1 and type-2 diabetes. John D.H. Stead,

Influence of Allele Lineage on the Role of the Insulin Minisatellite in Sus-

ceptibility to Type 1 Diabetes, 9 Human Molecular Genetics 2929, 2929-

31 (2000). Even assuming this study could be considered admissible evi-

dence and that it has not been discounted in the past decade, it underscores

my point. By looking at a booking photograph, the government could

judge whether or not Pool is obese and, consequently, glean information

regarding his risk of type-2 diabetes. And reference to Pool’s gender

shows his susceptibility to ovarian disorders is not an issue.

Not every disease has visible risk factors, of course, and genetic data is

undoubtedly more precise than visual assessment in judging the probabili-

ties associated with certain diseases. I remain unconvinced, however, that

the information contained in the CODIS database at the present time cate-

gorically differs from the information already contained in the booking

photo lineups on the bookshelf of virtually every police station in the

country.

14048 UNITED STATES v. POOL

Hand opined in presaging the Court’s Fourth Amendment bal-

ancing jurisprudence by several decades: “Any restraint of the

person may be burdensome. But some burdens must be borne

for the good of the community. The slight interference with

the person involved in finger printing seems to us one which

must be borne in the common interest.” United States v. Kelly,

55 F.2d 67, 68 (2d Cir. 1932) (citations omitted). Pool has not

provided a basis for weighing the interests in DNA profiling

in a manner that is different from the interests involved in fin-

gerprinting and photography.

Yet I stress that we do not purport to decide the hypotheti-

cal case in which a future litigant may demonstrate that

CODIS loci do code for RNA, or that the number of repeats

at CODIS loci yield information of a type unavailable in a fin-

gerprint or a photograph; nor do we consider a case in which

the nature of the genetic information stored in the CODIS

database is changed from present practice.4 In such a case, a

defendant’s interests could be vastly different. If that day

arrives, a future court will conduct a totality-of-the-

circumstances test anew. But for now, Pool’s CODIS profile

reveals only his identity, and the majority rightly factors only

Pool’s interest in that identity into its Fourth Amendment bal-

ancing.

B

Although a CODIS profile contains less information than a

DNA sample by several orders of magnitude, law enforce-

ment must, of course, collect a DNA sample to create a DNA

profile. These two actions—collection of a DNA sample and

4

I note with trepidation that the DNA Analysis Backlog Elimination Act

does not facially limit DNA analysis to STRs or even non-coding DNA

sequences. See 42 U.S.C. § 14135a(c)(2) (defining the DNA analysis

allowed by the act as any “analysis of the deoxyribonucleic acid (DNA)

identification information in a bodily sample”). Nonetheless, the executive

branch has sensibly limited the information stored in CODIS, and it is that

program we must evaluate today.

UNITED STATES v. POOL 14049

the creation of a DNA profile to be loaded onto the CODIS

database—are squarely challenged by Pool. Our majority

opinion affirms the district court’s holding that the govern-

ment may collect a DNA sample from Pool that may be “used

solely for criminal law enforcement identification purposes,”

(Dist. Ct. Order 3), specifically, to create a DNA profile to be

loaded onto the CODIS database. Having stated what the

majority opinion holds, I take pains to clarify what we do not

hold.

The first point, one the majority states in no uncertain terms

but which bears repeating, is that this case condones DNA

testing for individuals for whom a judicial or grand jury prob-

able cause determination has been made; it does not address

such sampling from mere arrestees. (See Majority Op.

14026-27, 14043.) That distinction is highly significant.5 A

judicial probable cause determination limits the opportunities

for mischief inherent in a suspicionless search regime. As dis-

cussed further in Part II, infra, the Supreme Court has permit-

ted some suspicionless searches when they are subject to

“standardized criteria, or established routine.” Florida v.

Wells, 495 U.S. 1, 4 (1990) (citations omitted). However, the

5

There is no doubt that conviction is the key moment in reconfiguring

the relationship between an individual’s privacy interests and the govern-

mental interests that may impinge upon them. Nevertheless, we cannot

blind ourselves to the various other gradations in our criminal justice sys-

tem. Although United States v. Scott, 450 F.3d 863 (9th Cir. 2006), clearly

holds that a pre-trial releasee’s “privacy and liberty interests [a]re far

greater than a probationer’s,” id. at 873, Scott does not stand for the propo-

sition that there is no meaningful distinction between an ordinary citizen

and an individual for whom a judicial probable cause determination has

been made. As this court acknowledged, “pretrial releasees must suffer

certain burdens that ordinary citizens do not.” Id. at 872 n.11. In this case,

unlike Scott, we consider a restriction “designed to ensure [a defendant’s]

appearance in court.” Id.

We must not ignore admittedly finer distinctions in an effort to cram

every individual into one of two categories—convict or citizen. Doing so

will not remove the DNA profiling issue from the slippery slope; it would

serve only to slicken the incline.

14050 UNITED STATES v. POOL

Court has been careful to caution that such “programmatic”

searches may not be used as “a ruse for a general rummaging

in order to discover incriminating evidence.” Id.

By permitting programmatic searches in the absence of par-

ticularized suspicion, we introduce a substantial danger that

law enforcement personnel will use the DNA-testing regime

as a pretext for obtaining evidence against individual suspects

rather than as a broad-based tool for ensuring the identity of

convicts and pre-trial releasees. Because of this potential for

abuse, the Court has limited its approbation of programmatic

searches to those “administered in good faith.” Colorado v.

Bertine, 479 U.S. 367, 374 (1987); see also Wells, 495 U.S.

at 4. Interposing the judiciary between the executive and the

citizenry provides a pre-hoc bulwark against abuse in addition

to the post-hoc good faith inquiry.

The second important limitation on our holding today is

that we do not consider a claim of misuse of the CODIS sys-

tem. Pool focuses his argument on the potential that the gov-

ernment may harvest intimate and revealing information from

his DNA sample. We must not underestimate these legitimate

concerns. Although the CODIS database uses only DNA pro-

files, the government must obtain a DNA sample to create the

profiles. Government possession of the entire sample, with its

potential to provide much more personal information, presents

an unquestionable opportunity for abuse.

Nonetheless, Pool has advanced no evidence suggesting

that the government will engage in the misconduct of which

he warns, and we must be cognizant of the penalties for such

misconduct, see 42 U.S.C. § 14135e(c). Whenever the gov-

ernment conducts a search, there is a risk that it will abuse its

powers. For example, a law enforcement search for a firearm

in a residence pursuant to a valid warrant typically involves

control of the entire residence. While in control of the home,

officers could commit any conceivable number of unlawful

acts. Yet the potential for abuse does not trump the issue of

UNITED STATES v. POOL 14051

legality of a search. Admittedly, the potential for intrusion

into the widest spectrum of human privacy is present in a

DNA sample, but the nature of our legal analysis remains

constant.

It might also be objected that this analogy is inapt because

the government exercises control over a home for only a short

period of time, but seeks to maintain Pool’s entire DNA sam-

ple permanently. This brings me to my third and final point

regarding the limits of today’s majority: We do not decide

here whether the government may indefinitely retain Pool’s

DNA sample. Rather, we permit the government to collect

Pool’s DNA sample to create a DNA profile for the CODIS

database. Because Pool’s DNA has yet to be collected, we

need not examine whether the government may retain his

sample beyond the creation of the defendant’s profile.

In the event Pool is acquitted, or that the charges against

him are otherwise dismissed, Pool may have his sample and

profile expunged. See 42 U.S.C. § 14132(d)(1)(A). If he is

convicted, this statutory provision would not apply; neverthe-

less, the majority opinion does not hold that indefinite reten-

tion is permissible. As noted in the Kincade concurrence, the

proposition that the government may retain an individual’s

entire DNA sample forever presents unique questions. See

379 F.3d at 841-42 (Gould, J., concurring); cf. Cole, supra

note 2, at 57 n.15 (“Even those who are sanguine about the

privacy threat posed by profiles are concerned about the stor-

age of samples.”). It is of concern that § 14132(d)(1)(A)

places the burden upon a former defendant with respect to

removal. However, as was the case in Kincade, the legality of

such a practice is not before us. Not until we are faced with

a litigant whose case has been finalized and has left the penal

system will these issues be decided. See Kincade, 379 F.3d at

841-42.

II

I write separately for a second reason: to expand upon the

majority opinion’s discussion of Friedman v. Boucher, 580

14052 UNITED STATES v. POOL

F.3d 847 (9th Cir. 2009). In addition to the differences

between this case and Friedman stated in the majority opin-

ion, I credit the fact that the DNA collection at issue here is

conducted generally of all federal pre-trial releasees, see 18

U.S.C. § 3142(b), (c)(1). The search in Friedman was directed

at a single prisoner. See 580 F.3d at 854 (concluding the

search was not conducted pursuant to a statutory regime). It

does appear counterintuitive that a search may be permissible

because it is less particularized, but the Supreme Court’s

holdings regarding “programmatic” searches compel this con-

clusion. See, e.g., Samson v. California, 547 U.S. 843, 855 n.4

(2006).

“Prior to Samson, the Court had never held that the totality

of the circumstances was the appropriate test to apply in a

suspicionless search of a conditional releasee. Thus, several

courts had concluded that a suspicionless search could not be

justified absent a special need (or some other exception).”

United States v. Weikert, 504 F.3d 1, 9 (1st Cir. 2007)

(emphasis omitted); see also Kincade, 379 F.3d at 843 (Rein-

hardt, J., dissenting) (arguing, prior to Samson, that the Court

had never approved “a programmatic search designed to pro-

duce and maintain evidence relating to ordinary criminal

wrongdoing, yet conducted without any level of individual-

ized suspicion”). This framework was upended by the Court

in Samson, which held that suspicionless searches have been

sanctioned both in cases involving “special needs” and in

those considering “programmatic” searches. 547 U.S. at 855

n.4. The Samson Court further explained that it has “never

held that these are the only limited circumstances in which

searches absent individualized suspicion could be ‘reason-

able’ under the Fourth Amendment.” Id.

The Court has provided little guidance as to the nature of

a “programmatic” search. In Brigham City v. Stuart, 547 U.S.

398 (2006), it described “checkpoints to combat drunk driving

or drug trafficking” as fitting within the programmatic cate-

gory. Id. at 405. It also cited Wells, which held that the per-

UNITED STATES v. POOL 14053

missibility of an inventory search following impoundment

turns on the degree to which such searches are standardized.

Brigham City, 547 U.S. at 405; see also Wells, 495 U.S. at 4

(“Our view that standardized criteria, or established routine,

must regulate the opening of containers found during inven-

tory searches is based on the principle that an inventory

search must not be a ruse for a general rummaging in order

to discover incriminating evidence.” (citations omitted)); see

also id. at 8 (Brennan, J., concurring) (“Our cases clearly hold

that an inventory search is reasonable under the Fourth

Amendment only if it is done in accordance with standard

procedures that limit the discretion of the police.” (citation

omitted)); cf. Bertine, 479 U.S. at 374 n.6 (“Our decisions

have always adhered to the requirement that inventories be

conducted according to standardized criteria.” (citation omit-

ted)).

The dissent in Samson provides additional guidance. Criti-

cizing the majority’s holding as an abandonment of the rule

that a suspicionless search must be supported by a “special

need,” Justice Stevens argued that “if individualized suspicion

is to be jettisoned, it must be replaced with measures to pro-

tect against the state actor’s unfettered discretion.” Samson,

547 U.S. at 860 (Stevens, J., dissenting). These “program-

matic safeguards [must be] designed to ensure evenhanded-

ness in application.” Id.

Unlike the search held unconstitutional in Friedman, the

statute challenged by Pool imposes a uniform burden on all

federal pre-trial releasees. It is “programmatic” in the sense

the Supreme Court appears to recognize as relevant to

whether a suspicionless search is reasonable.

Obviously, the programmatic nature of a search does not

mitigate its impact on individuals’ privacy rights. But pro-

grammatic searches do fulfill another “essential purpose of a

warrant requirement,” namely “to protect privacy interests by

assuring citizens subject to a search or seizure that such intru-

14054 UNITED STATES v. POOL

sions are not the random or arbitrary acts of government

agents.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S.

602, 621-22 (1989). And standard practices do limit the abil-

ity of government to use DNA profiling as a means of target-

ing “political opponents and disfavored minorities,” Kincade,

379 F.3d at 848 (Reinhardt, J., dissenting), or harassing disfa-

vored individuals. When combined with the legitimate gov-

ernment interest in ensuring Pool appears for trial and the

limited intrusion upon Pool’s privacy, I am convinced that the

programmatic nature of the DNA profiling program is reason-

able.

III

This is a vexing case. The DNA profiling system at issue

promises enormous potential as an investigatory tool, but its

expansion or misuse poses a very real threat to our privacy.

The distinctions I attempt to draw in this concurrence are

dwarfed by the magnitude of these competing interests, but

we must draw lines as best we can. I therefore concur, leaving

for another day difficult questions regarding the administra-

tion of CODIS and the government’s retention of DNA sam-

ples.

SCHROEDER, Circuit Judge, dissenting:

This is a case in which the government seeks to extract a

DNA sample as a condition of every pretrial release without

either a warrant or a showing of probable cause to conduct

DNA profiling. No circuit has ever before approved such a

warrantless search or seizure before an individual has been

convicted of any crime. DNA sampling can of course confirm

identity, but it also provides infinitely more information about

an individual than fingerprints. The majority and the concur-

ring opinions now uphold the constitutionality of the proposed

search and seizure because they find that Pool has failed to

UNITED STATES v. POOL 14055

show that they would unduly burden his reduced privacy

interests as a pretrial defendant. I disagree and would hold

that the government fails to justify a Fourth Amendment

exemption of this magnitude.

The latest congressional enactments challenged in this case

extend mandatory DNA testing requirements to individuals

who have not yet been convicted of any crime. See DNA Fin-

gerprint Act of 2005, Pub. L. No. 109-162, §§ 1004(a)(1)(A),

1004(b), 119 Stat. 2960, 3085-86 (2006) (codified at 18

U.S.C. §§ 3142(b) and (c)(1)(A); 42 U.S.C. § 14135a(a)

(1)(A)); Adam Walsh Child Protection and Safety Act of

2006, Pub. L. No. 109-248, § 155, 120 Stat. 587, 611 (2006)

(codified at 42 U.S.C. § 14135a(a)(1)(A)). The relevant provi-

sions require pretrial defendants to submit to DNA testing as

a condition of pretrial release. See 18 U.S.C. §§ 3142(b). The

Attorney General has promulgated regulations ordering all

federal agencies to obtain DNA samples to the extent autho-

rized by the statute. See 28 C.F.R. § 28.12(b).

The majority would uphold the warrantless pretrial seizure

by applying the “totality of the circumstances” test that bal-

ances the intrusion into privacy of the individual against the

interest in protecting society as a whole. The Supreme Court

has upheld searches as a condition of release under this test

only after an individual has been convicted of a crime and

hence has a lowered privacy interest. See, e.g., Samson v. Cal-

ifornia, 547 U.S. 843 (2006) (upholding search conducted

pursuant to California law requiring parolees to consent to

suspicionless searches at any time as condition of release);

United States v. Knights, 534 U.S. 112 (2001) (holding that

only reasonable suspicion was needed to justify search where

probationer had consented to be searched as a condition of

probation).

We have twice considered statutes requiring mandatory

DNA testing of those involved in the criminal justice system,

and in both a majority upheld the DNA seizure only because

14056 UNITED STATES v. POOL

the earlier statutes that were at issue in those cases limited the

warrantless DNA seizure to persons who had been convicted

of crimes. In the first, United States v. Kincade, 379 F.3d 813,

816-17 (9th Cir. 2004) (en banc), we considered the constitu-

tionality of the DNA Analysis Backlog Elimination Act of

2000, Pub. L. No. 106-546, 114 Stat. 2726 (2000), which

required DNA testing of individuals who had been convicted

of certain enumerated violent felonies and who were incarcer-

ated or on parole, probation, or supervised release. The case

generated significant debate among the members of our court,

and ultimately resulted in a divided en banc decision uphold-

ing the constitutionality of the search on the basis of two dif-

ferent Fourth Amendment theories. Compare id. at 816-40

(O’Scannlain, J., plurality opinion) (upholding DNA testing

under “totality of the circumstances” theory), with id. at 840-

42 (Gould, J., concurring) (concurring in judgment under spe-

cial needs theory). The fact of conviction, however, was indis-

pensable to both theories. Id. at 834 (plurality opinion)

(recognizing the “transformative changes wrought by a lawful

conviction”); id. at 840 (Gould, J. concurring) (focusing on

special need to deter recidivism by convicted felons). More-

over, five judges dissented, concluding that the intrusion into

privacy occasioned by DNA sampling could not be justified

even after a lawful conviction. See id. at 842-871 (Reinhardt,

J., dissenting); 871-75 (Kozinski, J., dissenting); 875-76

(Hawkins, J., dissenting). The dissenting judges objected to

the fact that the government sought to conduct “a program-

matic search designed to produce and maintain evidence relat-

ing to ordinary criminal wrongdoing . . . without any level of

individualized suspicion.” Id. at 843 (Reinhardt, J., dissent-

ing). They also predicted a slippery slope toward ever-

expanding warrantless DNA testing. See id. at 872 (Kozinski,

J., dissenting) (“If collecting DNA fingerprints can be justi-

fied [here], then it’s hard to see how we can keep the database

from expanding to include everybody.”).

We revisited the issue when Congress expanded the same

statute to reach individuals convicted of any federal felony,

UNITED STATES v. POOL 14057

crime of violence, or sexual abuse crime. See United States v.

Kriesel, 508 F.3d 941 (9th Cir. 2007) (considering constitu-

tionality of Justice For All Act of 2004, Pub. L. No. 108-405,

§ 203(b), 118 Stat. 2260, 2270 (2004)). Kriesel was again

contentious, with the majority upholding the constitutionality

of the statutory expansion on narrow grounds, over a vigorous

dissent. Compare id. at 942-50 (McKeown, J., majority opin-

ion) with id. at 950-58 (B. Fletcher, J., dissenting). The major-

ity explicitly limited its constitutional ruling to the case before

it, in which the individual raising the Fourth Amendment

challenge was a convicted felon. Id. at 943 n.3 (majority opin-

ion). The dissent contended that the reasoning of Kincade,

and the government’s purported interests, did not extend to

those convicted of non-violent crimes. See id. at 953-58 (B.

Fletcher, J., dissenting).

We consider here, for the first time, a statute and associated

regulations requiring mandatory DNA testing as a condition

of pretrial release for every individual charged with a federal

offense, a condition imposed before the individual can plead

or stand trial. The majority relies on our prior holdings in Kin-

cade and Kriesel to find Congress’s expansion of DNA test-

ing to pretrial defendants constitutional, but ignores our

rationale in those cases. We held that mandatory DNA testing

is consistent with the Fourth Amendment after conviction

because (a) a convicted felon’s privacy interest is greatly

reduced in comparison to the general citizenry; and (b) the

government’s interest in invading such a person’s privacy is

greater. Kincade, 379 F.3d at 834; Kriesel, 508 F.3d at 947,

949. In Kincade, we explained that a conviction changed the

analysis on both sides of the balance:

[The] transformative changes wrought by a lawful

conviction and accompanying term of conditional

release are well-recognized by the Supreme Court,

which often has noted that conditional releasees

enjoy severely constricted expectations of privacy

relative to the general citizenry—and that the gov-

14058 UNITED STATES v. POOL

ernment has a far more substantial interest in invad-

ing their privacy than it does in interfering with the

liberty of law-abiding citizens.

379 F.3d at 834. None of these considerations apply here.

Similarly, in Kriesel, we recognized that “[a]s a direct conse-

quence of [an individual’s] status as a supervised releasee, he

has a diminished expectation of privacy” and held that the

governmental interests advanced in Kincade applied to con-

victed non-violent felons “with equal force.” 508 F.3d at 947,

949. If there was, as the majority describes, a “watershed

event” that justified what would otherwise be an unconstitu-

tional seizure, the event was a conviction; not a post-arrest

probable cause determination.

It is because a conviction is what distinguishes parolees,

probationers, and those on supervised release from members

of the general public that our court has squarely held that war-

rantless searches and seizures violate pretrial defendants’

Fourth Amendment rights. In United States v. Scott, 450 F.3d

863 (9th Cir. 2006), we held that conditioning pretrial release

upon a defendant’s consent to warrantless drug testing was

unconstitutional. We so held even though such testing pro-

vides very limited information and could serve a rehabilitative

purpose. Our court has also decided that forcible extraction of

a DNA sample from a pretrial detainee is unconstitutional.

See Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009). In

Friedman, the government acknowledged the DNA was taken

for the law enforcement purpose of placing it in a cold case

data bank. Id. at 851. We held that as a pretrial detainee, the

defendant retained his clearly established Fourth Amendment

rights. Id. at 860. Friedman squarely rejected the contention

that the testing could be justified by our holdings in Kincade

and Kriesel, because “both of those cases concerned extract-

ing DNA from convicted felons still under state supervision,”

whereas Friedman had not yet been convicted of the crime

with which he was charged. Id. at 857.

UNITED STATES v. POOL 14059

The majority and concurring opinions thus conflict with

both Friedman and Scott in holding that a probable cause

determination, rather than a conviction, constitutes the “wa-

tershed event” that results in a diminished expectation of pri-

vacy. My colleagues try to circumvent Friedman by

suggesting that in Friedman, there was no statute authorizing

the search, but a statute does not trump the Constitution. They

dismiss Scott by suggesting that the privacy interest in one’s

home, which we recognized in Scott, is greater than the pri-

vacy interest in one’s body. This is not supported by authority

or common sense. See, e.g., Schmerber v. California, 384

U.S. 757, 769-70 (1966) (recognizing the heightened privacy

interest “with respect to intrusions beyond the body’s sur-

face”).

My colleagues point as well to prison security cases that

deal with pretrial defendants who are being temporarily

detained in a jail or prison facility. See Bell v. Wolfish, 441

U.S. 520 (1979). They similarly point to authority involving

the detention of defendants who present a demonstrated dan-

ger to the community. See United States v. Salerno, 481 U.S.

739 (1987). These cases, which deal with the conditions of

confinement, and the individualized decision to detain a

defendant until trial, are inapposite here, when the defendant

has not yet been determined to present any flight risk or dan-

ger to the community and we are not concerned with prison

security.

Absent a warrant or a showing of probable cause to conduct

DNA profiling in this case, the government bears the burden

to show that a Fourth Amendment exception justifies that the

searches or seizures are “reasonable.” United States v. Brown,

563 F.3d 410, 414-15 (9th Cir. 2009) (“A warrantless search

is unconstitutional unless the government demonstrates that it

‘fall[s] within certain established and well-defined exceptions

to the warrant clause.’ ”). The government cannot demon-

strate that an exception under the “totality of the circum-

stances” approach applies because Pool, as a pretrial

14060 UNITED STATES v. POOL

defendant, does not have the reduced privacy interests of the

convicted felons in Kincade or Kriesel. Nor, as the majority

opinion acknowledges, can the government plausibly rely on

the “special needs” exception, because that exception cannot

apply to searches and seizures conducted for general law

enforcement purposes. See Friedman, 580 F.3d at 853. Pool

does not bear the burden to establish that the government will

fail to protect his privacy interests after the DNA sample is

taken. Both of my colleagues misallocate the burden of proof.

Because Pool’s privacy interests have not been diminished

as a result of any conviction, the “intrusion” the government

must justify is significant. The government seeks to seize, and

indefinitely retain, not only individuals’ DNA profiles, but

rather samples of individuals’ entire DNA. See 42 U.S.C.

§ 14132(b)(3); 73 Fed. Reg. 74,932-01, 74,937-38 (Dec. 10,

2008). These samples contain “massive amounts of personal,

private data” including information about a “person’s health,

propensity for particular disease, race and gender characteris-

tics, and perhaps even propensity for certain conduct.” Kin-

cade, 379 F.3d at 842 (Gould, J., concurring). The statute

permits DNA samples to be disclosed to criminal justice

agencies, in judicial proceedings, for criminal defense pur-

poses, and even, if personally identifiable information is

removed, for research purposes. 42 U.S.C. § 14132(b)(3).

The privacy concerns implicated by the seizure, and stor-

age, of DNA material, and the personal information it con-

tains, is certainly substantial. The concurring opinion makes

much of the difference between DNA samples and DNA pro-

files, but it rightly acknowledges that the DNA sample, if

fully analyzed, contains a vast amount of information. The

concurring opinion diminishes the significance of the fact that

the government cannot seize a DNA profile; it must seize a

DNA sample in order to create a profile. The seizure and

indefinite storage of the sample, which is what that the gov-

ernment must justify under a Fourth Amendment exception,

UNITED STATES v. POOL 14061

is very different from fingerprinting and other traditional

booking procedures.

The majority also errs when it suggests that we are bound

by Kincade’s characterization of the information produced

from a DNA sample as “minimally invasive.” This is not

binding circuit law, as this aspect of the plurality’s opinion

failed to garner majority support. See Kincade, 379 F.3d at

842 (Gould, J., concurring) (“DNA stores and reveals massive

amounts of personal, private data about that individual, and

the advance of science promises to make stored DNA only

more revealing in time.”). Moreover, this court’s decision in

Kriesel held instead that any privacy concerns were reduced

because of the defendant’s lawful conviction. 508 F.3d at 948.

It expressly refused to adopt the Kincade plurality’s reasoning

on the degree of invasion, noting that “[t]he concerns about

DNA samples being used beyond identification purposes are

real and legitimate.” Id. Indeed, the Supreme Court held in

Schmerber that “[t]he interests in human dignity and privacy

which the Fourth Amendment protects forbid any . . . intru-

sions [beyond the body’s surface] on the mere chance that

desired evidence might be obtained.” 384 U.S. at 769-70.

Finally, the majority errs in equating the government’s

interests in this case with those identified in Kincade and

Kriesel because under Friedman and Scott, the government

may not rely on those interests when pretrial detainees are

involved. Our decision in Friedman squarely forecloses the

government’s reliance on using the DNA samples of pretrial

defendants to solve past and future crimes. See 580 F.3d at

858. Friedman held that DNA extraction from a pretrial

defendant violated the Constitution where the government’s

purpose “was simply to gather human tissue for a law

enforcement databank, an objective that does not cleanse an

otherwise unconstitutional search.” Id. Nor may the govern-

ment rely on a generalized interest in preventing the commis-

sion of crimes by pretrial defendants. Scott rejected “the

assumption that [a pretrial defendant is] more likely to com-

14062 UNITED STATES v. POOL

mit crimes than other members of the public, without an indi-

vidualized determination to that effect.” 450 F.3d at 874.

Finally, an interest in “reducing recidivism” is meaningless

where the defendant has not yet been convicted of an initial

crime. In this case, Pool has no prior criminal record.

For all of the forgoing reasons, I respectfully dissent.