United States v. Weikert

United States Court of Appeals

For the First Circuit

No. 06-1861

UNITED STATES OF AMERICA,

Appellant,

v.

LEO WEIKERT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Lipez, Circuit Judge, and

*

Gibson and Stahl, Senior Circuit Judges.

Randall E. Kromm, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief for

appellant.

Terence P. Noonan, with whom Noonan & Noonan was on brief, for

appellee.

August 9, 2007

*

Of the Eighth Circuit, sitting by designation.

LIPEZ, Circuit Judge. This case presents a question of

first impression in this circuit: is it a violation of the Fourth

Amendment's prohibition on unreasonable searches and seizures to

require an individual on supervised release to provide a blood

sample for purposes of creating a DNA profile and entering it into

a centralized database? Agreeing with the eleven other circuits

that have held similarly, we hold that it is not. In doing so, we

interpret the Supreme Court's decision in Samson v. California, 126

S. Ct. 2193 (2006), to require that we join the majority of the

circuits in applying a "totality of the circumstances" approach to

the issues in this case, rather than the "special needs" analysis

used by the minority of circuits.

However, we also impose an important limitation on our

holding. Because the appellant is currently on supervised release

and will remain so until 2009, we do not resolve the question of

whether it is also constitutional to retain the DNA profile in the

database after he is no longer on supervised release. Mindful of

the well-established principle that constitutional cases should be

decided as narrowly as possible and the rapid pace of technological

development in the area of DNA analysis, we reserve judgment on

that issue for another day.

I.

A. Statutory Background

Pursuant to the DNA Analysis Backlog Elimination Act of

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2000 ("DNA Act"), Pub. L. No. 106-546 (codified as amended in

scattered sections of 10 U.S.C., 18 U.S.C., and 42 U.S.C.),

individuals who have been convicted of a "qualifying federal

offense" and who are incarcerated or on parole, probation, or

supervised release must provide federal law enforcement authorities

with "a tissue, fluid, or other bodily sample" for purposes of

extracting their DNA. 42 U.S.C. §§ 14135a(a)(1)-(2), (c)(1).1

The DNA Act specifies that the government may "use or

authorize the use of such means as are reasonably necessary" to

collect a DNA sample. Id. at § 14135a(a)(4)(A). Before the

district court a United States Probation Officer explained that in

Weikert's case a blood sample would be obtained by means of a

painless fingerprick. Refusal to comply with the DNA collection

procedure is a misdemeanor punishable by up to one year's

imprisonment and a fine of $100,000. 42 U.S.C. § 14135a(a)(5); 18

U.S.C. §§ 3571, 3581. Moreover, courts are required to order

compliance with the DNA Act "as an explicit condition of supervised

release." 18 U.S.C. § 3583(d). Thus, failure to provide a DNA

sample in compliance with the DNA Act both violates the obligation

not to commit any additional offenses while on supervised release

and violates an express condition of the release. See 18 U.S.C.

1

Under 42 U.S.C. § 14135a(d), the term "qualifying federal

offense" includes any felony, any offense under 18 U.S.C. § 109A,

any "crime of violence" as defined in 18 U.S.C. § 16, and any

attempt or conspiracy to commit such an offense.

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§ 3583(d).

The FBI uses the DNA sample to create a genetic profile

of the individual based on information contained at thirteen

specified locations in the person's DNA. See Nat'l Comm'n on the

Future of DNA Evidence, Nat'l Inst. of Justice, U.S. Dep't of

Justice, The Future of Forensic DNA Testing 19 (2000), available at

http://www.ncjrs.gov/pdffiles1/nij/183697.pdf (hereinafter "The

Future of Forensic DNA Testing"). Profiling is performed using

only so-called "junk DNA" — DNA that differs from one individual to

the next and thus can be used for purposes of identification but

which was "purposely selected because [it is] not associated with

any known physical or medical characteristics" and "do[es] not

control or influence the expression of any trait." H.R. Rep. No.

106-900(I), at 27 (2000), 2000 WL 1420163 (letter of Robert Raben,

Assistant Attorney General, to The Honorable Henry J. Hyde,

Chairman, House Judiciary Committee).2 Thus, the profiles contain

only "an agency identifier for the agencies submitting the DNA

profile; the specimen identification number; the DNA profile; and

the name of the DNA personnel associated with the DNA analysis."

Id. In effect, the system "provide[s] a kind of genetic

fingerprint, which uniquely identifies an individual, but does not

2

A report prepared by the National Institute of Justice

explains that ninety-seven percent of DNA "has no known function"

and notes, parenthetically, that "[o]ne reason for [the choice to

perform DNA analysis on such junk DNA] has been to protect

individual privacy." The Future of Forensic DNA Testing 12.

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provide a basis for determining or inferring anything else about

the person." Id.

The profile is then entered into the FBI's Combined DNA

Index System ("CODIS"), a massive, centrally managed database

including DNA profiles from federal, state, and territorial DNA

collection programs, as well as profiles drawn from crime-scene

evidence, unidentified remains, and genetic samples voluntarily

provided by relatives of missing persons. As of April 2007, CODIS

contained more than four million profiles of individual offenders

and over 175,000 profiles derived from crime scene evidence and

other sources. See Federal Bureau of Investigation, National DNA

Index System Statistics, available at

http://www.fbi.gov/hq/lab/codis/clickmap.htm (last visited July 11,

2007).

CODIS is a valuable law enforcement tool. It may be used

to match evidence found at one crime scene with evidence found at

another crime scene, revealing a common perpetrator. It also may

be used to match evidence from the scene of a crime to a particular

offender's profile. These attributes allow the FBI to investigate

crimes more efficiently and more accurately, both by identifying

offenders and by eliminating innocent suspects. The FBI credits

CODIS with aiding more than 49,466 investigations nationally. See

Federal Bureau of Investigations, Investigations Aided,

http://www.fbi.gov/hq/lab/codis/aidedmap.htm (hereinafter

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"Investigations Aided") (last visited July 11, 2007).

The DNA Act contains an array of statutory safeguards to

foreclose the possibility of abuse. CODIS information generally

may be used only "[by] criminal justice agencies for law

enforcement identification purposes[,] . . . in judicial

proceedings, if otherwise admissible pursuant to applicable

statutes or rules[, and] for criminal defense purposes, [by] a

defendant." 42 U.S.C. § 14132(b)(3). The DNA Act also provides

for a fine of up to $250,000 or a year in prison for the

unauthorized disclosure or use of a DNA sample or result. Id.

§ 14135e(c).

B. Factual and Procedural Background

In 1990, appellant Leo Weikert pled guilty in the Western

District of Texas to one count of conspiracy to possess cocaine

with the intent to distribute and was sentenced to a term of 120

months. He escaped from prison in 1994, and was apprehended in

Massachusetts in 1999. He then pled guilty in the District of

Massachusetts to one count of escape from custody, and, in January

2000, was sentenced to eight months of imprisonment, to be served

consecutively with his previous term. He also was sentenced to

twenty-four months of supervised release to follow his

incarceration.3

3

Weikert will remain on supervised release until 2009 because

he was sentenced to five years of supervised release for his

previous conviction in Texas and is serving the two terms of

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Weikert was released from prison on December 10, 2004.

The Probation Office notified him of its intent to take a blood

sample in order to collect his DNA, and Weikert subsequently filed

a motion for a preliminary injunction and requested a hearing. The

government opposed the motion and filed a request to revoke

Weikert's supervised release.

The district court granted the preliminary injunction.

The court explained that, in analyzing the constitutionality of the

DNA Act, the other circuits have split over whether to apply the

general Fourth Amendment totality of the circumstances test or the

special needs exception. It then held that the special needs

exception was the appropriate test because "the special needs

doctrine has evolved to be the proper form of analysis for searches

without individualized suspicion." It explained that the special

needs test first asks whether the statute serves a special need

distinct from traditional law enforcement, and, if so, whether the

government's need outweighs the intrusion on the individual's

privacy interest. Applying that analysis, the court concluded that

no special need existed because "[t]he government's immediate

purpose in collecting DNA samples is to solve crimes," which was

not beyond the normal need for law enforcement.

Acknowledging that its conclusion that no special need

existed was sufficient to find the search unreasonable under the

supervised release concurrently.

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Fourth Amendment, the court nevertheless continued with its

analysis. Even if such a special need existed, the court held, the

individual's privacy interests would outweigh the government's

interest in obtaining the information. The court found the

government's interest in creating and using the database to solve

crimes "substantial, given the success the government has had in

using DNA samples to assist in investigations." However, this

substantial interest was outweighed by "the intrusion into an

individual's personal identity through the analysis of the blood

. . . not to mention the danger of a later publicizing of the

information gleaned from the sample."

Finally, the district court found that the other

preliminary injunction factors — the possibility of irreparable

injury, the balance of harms, and the public interest — weighed in

Weikert's favor. Thus, the court granted the injunction. The

government now appeals from that decision.

II.

Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to

hear an interlocutory appeal of an order granting a preliminary

injunction. In considering a motion for a preliminary injunction,

a district court weighs four factors: (1) the plaintiff’s

likelihood of success on the merits; (2) the potential for

irreparable harm in the absence of an injunction; (3) whether

issuing an injunction will burden the defendants less than denying

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an injunction would burden the plaintiffs; and (4) the effect, if

any, on the public interest. Bl(a)ck Tea Soc’y v. City of Boston,

378 F.3d 8, 11 (1st Cir. 2004). The first inquiry is the most

important element of the preliminary injunction assessment: "[I]f

the moving party cannot demonstrate that he is likely to succeed in

his quest, the remaining factors become matters of idle curiosity."

New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9

(1st Cir. 2002).

On appeal, we review the grant or denial of a preliminary

injunction for abuse of discretion. Wine & Spirits Retailers, Inc.

v. Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005). Within that

framework, however, "findings of fact are reviewed for clear error

and issues of law are reviewed de novo." Id. Here, the facts are

undisputed, and the only legal question is whether the collection

of Weikert's DNA under the DNA Act violates his rights under the

Fourth Amendment. We subject that issue to de novo review, see

United States v. Sargent, 319 F.3d 4, 8 (1st Cir. 2003); our

disposition of the issue will determine Weikert’s likelihood of

success on the merits.

A. Individualized Suspicion and Conditional Release

The Fourth Amendment guarantees that the people shall be

"secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." U.S. Const. amend. IV.

Unquestionably, the extraction of blood for DNA profiling

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constitutes a search within the meaning of the Fourth Amendment.

See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616

(1989)("We have long recognized that a compelled intrusion into the

body for blood to be analyzed for alcohol content must be deemed a

Fourth Amendment search." (internal quotation marks, alteration,

and citation omitted)); see also Winston v. Lee, 470 U.S. 753, 760

(1985); Schmerber v. California, 384 U.S. 757, 767-68 (1966).

The fact that a search occurred, however, is not

dispositive of the Fourth Amendment inquiry. Rather, "[t]he

touchstone of our analysis under the Fourth Amendment is always

'the reasonableness in all the circumstances of the particular

governmental invasion of a citizen's personal security.'"

Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977)(quoting Terry v.

Ohio, 392 U.S. 1, 19 (1968)). Establishing that a search is

reasonable ordinarily requires that the government demonstrate

probable cause to a neutral magistrate and obtain a particularized

warrant authorizing the search. United States v. United States

Dist. Ct., 407 U.S. 297, 315-16 (1972). However, the Court has

authorized certain exceptions to these requirements, including,

relevant to our purposes, in "those exceptional circumstances in

which special needs, beyond the normal need for law enforcement,

make the warrant and probable-cause requirement impracticable."

New Jersey v. TLO, 469 U.S. 325, 351 (1985)(Blackmun, J.,

concurring).

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The so-called "special needs" doctrine has been used to

analyze searches in a variety of contexts where the government has

neither obtained a warrant nor established individualized

suspicion. See, e.g., Illinois v. Lidster, 540 U.S. 419, 423-28

(2004) (upholding a highway checkpoint designed to enable police to

question citizens about a recent crime); Bd. of Educ. v. Earls, 536

U.S. 822, 828-30 (2002) (upholding a program that required all

students participating in extracurricular activities to submit to

random, suspicionless drug testing); Ferguson v. City of

Charleston, 532 U.S. 67, 77-84 (2001) (holding unconstitutional a

public hospital's non-consensual drug testing of maternity

patients); City of Indianapolis v. Edmond, 531 U.S. 32, 41-47

(2000)(invalidating a roadside checkpoint designed to detect

illegal drugs); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,

660-65 (1995)(upholding a program subjecting student athletes to

random, suspicionless drug testing). In determining whether a

suspicionless search qualifies for the "special needs" exception,

a critical issue is whether the search is designed to further

ordinary law enforcement objectives. The Court has invalidated

programs "whose primary purpose was to detect evidence of ordinary

criminal wrongdoing," explaining that this type of "general

interest in crime control" could not qualify as a special need.

Edmond, 531 U.S. at 41-42 (citation and internal quotation marks

omitted); see also Ferguson, 532 U.S. at 83 (holding the program

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invalid because the "immediate objective of the searches was to

generate evidence for law enforcement purposes").

The Court previously has applied the "special needs"

doctrine in evaluating the constitutionality of a law targeted at

individuals on conditional release.4 In Griffin v. Wisconsin, 483

U.S. 868, 873 (1987), the Court upheld a Wisconsin law permitting

any probation officer to search a probationer's home without a

warrant so long as there were "reasonable grounds" to support a

search. The Court explained that "the special needs of Wisconsin's

probation system make the warrant requirement impracticable and

justify replacement of the standard of probable cause by

'reasonable grounds.'" Id. at 876. Requiring probation officials

to obtain a warrant would "set[] up a magistrate rather than the

probation officer as the judge of how close a supervision the

4

Probation, supervised release, and parole are all different

forms of conditional release from prison. Probation is an

alternative sanction to imprisonment in which a court permits a

convicted offender to serve his or her sentence in the community

subject to certain conditions and supervision by a probation

officer. 18 U.S.C. §§ 3561, 3563. Supervised release, by

contrast, is a period of community supervision imposed by the court

to be completed after release from a jail or prison sentence, 18

U.S.C. § 3583(a); it may be subject to the same conditions as

probation, see id. § 3583(d), and also involves supervision by a

probation officer, see id. § 3583(f). Parole is similar to

supervised release in that it consists of a period of community

supervision to follow a prison term; however, after the Sentencing

Reform Act of 1984, Pub. L. No. 98-473 (codified as amended at 18

U.S.C. §§ 3551-3742), parole is no longer a valid status for new

federal offenders. See, e.g., Johnson v. United States, 529 U.S.

694, 696-97 (2000)(recognizing abolition of most forms of parole

and the creation of supervised release).

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probationer requires," delay probation officials' response to

evidence of misconduct, and reduce the deterrent caused by the

possibility of prompt searches. Id. Likewise, compliance with the

probable cause requirement "would reduce the deterrent effect of

the supervisory arrangement," id. at 878, and would prevent the

probation office being able to "intervene before a probationer does

damage to himself or society," id. at 879. Given the state's

interest in assuring "that the probation serves as a period of

genuine rehabilitation and that the community is not harmed by the

probationer's being at large," id. at 875, the Court found the

Wisconsin law constitutional.

Subsequently, however, in United States v. Knights, 534

U.S. 112 (2001), the Court did not apply the special needs doctrine

in upholding a warrantless search of a probationer that was

supported by reasonable suspicion. Rather, the Court held that the

search was reasonable "under [the] general Fourth Amendment

approach of 'examining the totality of the circumstances.'" Id. at

118 (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). In

explaining its decision, the Court noted that the probationer had

signed a probation order agreeing to submit to a search of his

person and property by a law enforcement officer "at any[ ]time,

with or without a search warrant, warrant of arrest or reasonable

cause." Id. at 114. Thus, the probationer's status informed both

sides of the Fourth Amendment reasonableness balance. Probationers

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inherently have a decreased expectation of privacy, and the

agreement to the search condition further decreased that

expectation. Id. at 119-20. The government also has a greater

interest in preventing recidivism, and is "quite justified" in

concluding that a probationer "will be more likely to engage in

criminal conduct than an ordinary member of the community." Id. at

121. The Court concluded that "the balance of these considerations

requires no more than reasonable suspicion," ultimately holding

that "the warrantless search . . . , supported by reasonable

suspicion and authorized by a condition of probation, was

reasonable within the meaning of the Fourth Amendment." Id. at

121-22.

Most recently, in Samson v. California, 126 S. Ct. 2193,

2197 (2006), the Court applied a totality of the circumstances

analysis in upholding a suspicionless search of a parolee conducted

pursuant to a California law stating that, as a condition for

release, every prisoner eligible for state parole must agree to be

subject to a search or seizure by a parole officer with or without

a search warrant and with or without cause.5 After reiterating

Knights's holding that "probationers 'do not enjoy the absolute

liberty to which every citizen is entitled,'" id. (quoting Knights,

534 U.S. at 119), the Court explained that, "[e]xamining the

5

Samson was decided subsequent to the district court's

decision in this case.

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totality of the circumstances pertaining to petitioner's status as

a parolee, . . . including the plain terms of the parole search

condition, . . . petitioner did not have an expectation of privacy

that society would recognize as legitimate," id. at 2199 (citations

omitted). The Court also deemed the state's interests

"substantial," citing the need to reduce recidivism and promote

reintegration among those on conditional release. Id. at 2200.

Given the number of parolees and the high likelihood of recidivism,

"a requirement that searches be based on individualized suspicion

would undermine the State's ability to effectively supervise

parolees and protect the public from criminal acts by reoffenders."

Id. at 2200-01. Thus, the Court concluded, "a condition of release

can so diminish or eliminate a released prisoner's reasonable

expectation of privacy that a suspicionless search by a law

enforcement officer would not offend the Fourth Amendment." Id.

2196.

B. Application to the DNA Act

The other circuits have split in the analysis they apply

to the federal DNA Act or its state law analogs. A majority — the

Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and D.C. Circuits —

use the totality of the circumstances analysis described in Knights

and Samson. See United States v. Kraklio, 451 F.3d 922, 924 (8th

Cir. 2006)(federal DNA Act); Johnson v. Quander, 440 F.3d 489, 496

(D.C. Cir. 2006)(federal DNA Act); United States v. Sczubelek, 402

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F.3d 175, 184 (3d Cir. 2005)(federal DNA Act); Padgett v. Donald,

401 F.3d 1273, 1280 (11th Cir. 2005)(Georgia analog); United States

v. Kincade, 379 F.3d 813, 832 (9th Cir. 2004)(en banc)(federal DNA

Act); Groceman v. U.S. Dep't of Justice, 354 F.3d 411, 413-14 (5th

Cir. 2004)(per curiam)(federal DNA Act); Jones v. Murray, 962 F.2d

302, 306-07 (4th Cir. 1992)(Virginia analog). A minority — the

Second, Seventh, and Tenth Circuits — apply the special needs

analysis. See Amerson, 483 F.3d 73, 79 n.6 (2d Cir. 2007)(federal

DNA Act); United States v. Hook, 471 F.3d 766, 773 (7th Cir.

2006)(federal DNA Act); United States v. Kimler, 335 F.3d 1132,

1146 (10th Cir. 2003)(federal DNA Act). Finally, the Sixth

Circuit, in United States v. Conley, 453 F.3d 674, 679-81 (6th Cir.

2006), declined to choose a mode of analysis, holding that the DNA

Act was constitutional under either a totality of the circumstances

or a special needs analysis.6

Much of this authority preceded the Supreme Court’s

decision in Samson, which now offers additional guidance. 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

6

The circuits also disagree over which test is more

rigorous. Compare Sczubelek, 402 F.3d at 184 (explaining that it

would apply the "more rigorous Knights totality of the

circumstances test rather than the Griffin special needs exception)

and Kraklio, 451 F.3d at 924 (same) with Amerson, 483 F.3d at 79

n.6 (2d Cir. 2001)(indicating that the special needs test is more

"stringent").

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concluded that a suspicionless search could not be justified absent

a special need (or some other exception). See, e.g., Nicholas v.

Goord, 430 F.3d 652, 666 (2d Cir. 2005)("The Supreme Court has

never applied a general balancing test to a suspicionless-search

regime."). However, Samson now indicates that the totality of the

circumstances analysis is, in fact, the appropriate framework to

apply in a situation involving even a suspicionless search of a

conditional releasee. Samson, 126 S. Ct. at 2202; see also id. at

2204 (Stevens, J., dissenting)(explaining that "the Court for the

first time upholds an entirely suspicionless search unsupported by

any special need"). In so holding, the Court explained that "[t]he

touchstone of the Fourth Amendment is reasonableness, not

individualized suspicion," and noted that the "'Fourth Amendment

imposes no irreducible requirement of such suspicion,'" 126 S. Ct.

at 2201 n.4 (quoting United States v. Martinez-Fuerte, 428 U.S.

543, 561 (1976)). It concluded:

[A]lthough this Court has only sanctioned

suspicionless searches in limited

circumstances, namely programmatic7 and special

needs searches, we have never held that these

are the only limited circumstances in which

searches absent individualized suspicion could

be "reasonable" under the Fourth Amendment.

In light of California's earnest concerns

respecting recidivism, public safety, and

7

The Supreme Court has not provided a precise definition of

a "programmatic" search. However, it has listed as examples of

such searches "checkpoints to combat drunk driving or drug

trafficking." Brigham City v. Stuart, 126 S. Ct. 1943, 1948

(2006).

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reintegration of parolees into productive

society, and because the object of the Fourth

Amendment is reasonableness, our decision

today is far from remarkable.

Id. (footnote added). Samson thus indicates that a search of an

individual on conditional release is properly subject to the

totality of the circumstances analysis rather than the special

needs analysis, notwithstanding the lack of individualized

suspicion.

The Court's application, in Samson, of the totality of

the circumstances analysis also may reflect its recognition that

the search in that case could not qualify as a "special needs"

search. Special needs involve those "beyond the normal need for

law enforcement," Griffin, 483 U.S. at 873, and the search in

Samson — that of a suspected parole violator's person by a law

enforcement officer, Samson, 126 S. Ct. at 2196 — is difficult to

characterize as anything other than an ordinary law enforcement

search for weapons or contraband. A similar problem arises in

attempting to apply the special needs test to the DNA Act. The

CODIS mission statement explicitly states that it is an "effective

tool for solving violent crimes" and that it was formed in 1990

"for law enforcement purposes." See Federal Bureau of

Investigation, CODIS Mission Statement & Background, available at

http://www.fbi.gov/hq/lab/codis/program.htm (last visited July 11,

2007). Moreover, the legislative history reveals a multitude of

references to the goal of solving crimes. See United States v.

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Kincade, 379 F.3d 813, 856 (9th Cir. 2004)(Reinhardt, J.,

dissenting)(collecting citations to the legislative history).

Although the government's brief emphasizes certain arguably non-

law-enforcement-related purposes of the DNA Act, such as obtaining

reliable proof of a felon's identity and preventing recidivism, it

is clear that law enforcement objectives predominate. Thus, the

centrality of law enforcement objectives to the DNA Act buttresses

our conclusion that the totality of the circumstances analysis,

rather than the special needs analysis, is appropriate.8

Despite Samson's focus on reasonableness and the totality

of the circumstances, two circuits subsequently have applied the

special needs analysis to the DNA Act. In Hook, the Seventh

Circuit made no reference to Samson and followed, without

8

We understand the dissent's desire to read Samson as

narrowly as possible, and thereby preserve the special needs

analysis for a case such as this. If that could be done, the

regime established by the DNA Act, with its law enforcement

objectives, probably could not meet the special needs standard.

Respectfully, however, we believe that Samson can only be read to

eliminate the special needs analysis in a case involving the

suspicionless search of a suspect on supervised release. The fact

that a central purpose of the DNA Act is to solve crimes does not

distinguish it from the program at issue in Samson — as noted, the

search in that case was a classic law enforcement search designed

to uncover evidence of weapons or contraband. The fact that the

program at issue in Samson is in part designed to "reintegrat[e] []

parolees into productive society," Samson, 126 S. Ct. at 2201 n.4,

does not distinguish it from the regime established by the DNA Act,

which also has reintegration as one of its goals. Relatedly, the

fact that Samson involved a state program does not meaningfully

differentiate it from the federal program at issue here. Given

that the programs are similar in all relevant ways, we believe that

we are required to use here the totality of the circumstances

analysis employed by the Court in Samson.

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discussion, its prior decision in Green v. Berge, 354 F.3d 675 (7th

Cir. 2004), in which it applied the special needs analysis. 471

F.3d at 772. Then, in Amerson, the Second Circuit concluded that

Samson did not affect its prior decision in United States v.

Lifshitz, 369 F.3d 173, 180-81 (2d Cir. 2004), in which it applied

the special needs test to probationers challenging New York's DNA

indexing statute. 483 F.3d at 79. In light of its circuit

precedent, the court concluded that the special needs test should

apply "[b]ecause the Supreme Court has not, to date, held that the

expectations of privacy of probationers are sufficiently diminished

to permit probationer suspicionless searches to be tested by a

general balancing test."

Notwithstanding Amerson's holding, we conclude that there

is no rationale for differentiating supervised release from other

conditional release statuses for purposes of determining whether to

apply the totality of the circumstances analysis or the special

needs analysis. The grounds cited by the Supreme Court in its

decision to apply a totality of the circumstances analysis in

Samson — the state’s broad concerns regarding "recidivism, public

safety, and reintegration," Samson, 126 S. Ct. at 2201 n.4 — apply

similarly to parolees and supervised releasees. Moreover, in

general the circuits "have not distinguished between parolees,

probationers, and supervised releasees for Fourth Amendment

purposes." Kincade, 379 F.3d at 817 n.2 (collecting cases); see

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also Sczubelek, 402 F.3d at 179 (explaining that, "[e]ven though

this is the first opportunity we have had to address this issue in

the context of an individual on supervised release, we have

addressed similar challenges in the context of parole and

probation," and following those previous rulings).9 Finally, as we

have explained, law enforcement objectives are central to the DNA

Act, and thus the analysis applicable to special needs "beyond the

normal need for law enforcement," Griffin, 483 U.S. at 873, is

inapplicable here. Consequently, we hold that the analysis used

for parolees in Samson is appropriately applied to the supervised

release situation present here. See Kraklio, 451 F.3d at 924

(applying the totality of the circumstances analysis to a

probationer's challenge to the DNA Act after Samson).

C. Balancing of Interests

Having determined that we apply the general Fourth

Amendment totality of the circumstances analysis to Weikert’s

challenge to the DNA Act, we now weigh his expectation of privacy

against the government's interests in conducting the search.

1. Privacy Interests

9

In Samson, the Court suggested a distinction between parole

and probation, noting that "parolees have fewer expectations of

privacy than probationers," 126 S. Ct. at 2198, but did not

indicate whether it would have used a different analysis if the

defendant had not been a parolee. Importantly, however, supervised

release is more closely akin to parole than to probation, see infra

note 4, and thus any distinction the Court might have drawn between

parole and probation would not differentiate parole from supervised

release.

-21-

As our discussion thus far has shown, individuals on

conditional release have a substantially diminished expectation of

privacy. See, e.g., Knights, 534 U.S. at 119 ("Inherent in the

very nature of probation is that probationers do not enjoy the

absolute liberty to which every citizen is entitled." (internal

quotation marks and citations omitted)). Indeed, in Samson, the

Court concluded that "[e]xamining the totality of the circumstances

pertaining to petitioner's status as a parolee, . . . including the

plain terms of the parole search condition, we conclude that

petitioner did not have an expectation of privacy that society

would recognize as legitimate." 126 S. Ct. at 2199.

Weikert contends that his status as a supervised releasee

distinguishes him from the parolee in Samson, affording him a

greater degree of privacy. He claims that "[r]evocation of parole

or probation may cause reinstatement of the remainder of a

sentence" while "[r]evocation of supervised release . . . cannot

reinstate the sentence as it is already completed and punishment is

statutorily capped at five years for even the most heinous

violators." He adds that "[t]his codifying of limited revocation

punishments demonstrates a far greater expectation of privacy . . .

for supervised releasees like Weikert."

Weikert's description of the differences among parole,

probation, and supervised release is not entirely accurate.

Supervised release replaced parole within the federal system as a

-22-

result of the Sentencing Reform Act of 1984, see Johnson v. United

States, 529 U.S. 694, 696-97 (2000), and both of these forms of

conditional release follow, rather than replace, a term of

imprisonment, see id. at 697. More importantly, however, as we

have already explained, courts generally have not distinguished

among conditional releasees for Fourth Amendment purposes, and we

do not find the differences material here. See supra page 20. To

the extent that different statuses may diminish an individual's

expectation of privacy to different degrees, the distinction is

probably unfavorable to Weikert. At least one court has found that

supervised release places "'[t]he most severe'" limits on

expectations of privacy, greater than those of both parole and

probation. United States v. Balon, 384 F.3d 38, 44 (2d Cir.

2004)(quoting United States v. Lifshitz, 369 F.3d 173, 181 n.4 (2d

Cir. 2004)). Thus, as previously noted, Weikert has a

substantially diminished expectation of privacy, and we accord his

privacy interest less weight in our balancing of the relevant

interests.

In addition to Weikert's status as a supervised releasee,

we must also consider the nature of the search in evaluating his

privacy interests. The Court has held that "the intrusion

occasioned by a blood test is not significant, since such 'tests

are a commonplace in these days of periodic physical examinations

and experience with them teaches that the quantity of blood

-23-

extracted is minimal, and that for most people the procedure

involves virtually no risk, trauma, or pain.'" Skinner, 489 U.S.

at 625 (quoting Schmerber, 489 U.S. at 771). Weikert emphasizes,

and we agree, that an internal search such as a blood draw is

inherently more intrusive than a purely external search such as

fingerprinting or photographing. See Sczubelek, 402 F.3d at 197

n.14 (McKee, J., dissenting)("[T]he extraction of blood involves

some risk, including infection and transmission of disease.

Although this may be viewed as 'minimal,' the risk present for any

given extraction is certainly greater than zero."); cf. Bell v.

Wolfish, 441 U.S. 520, 558 & n.39 (1979)(holding that a body cavity

search was constitutional, while noting that "the inmate is not

touched by security personnel at any time during the visual search

procedure"). However, in light of the Court's clear statement in

Skinner, the blood draw is neither a significant nor an unusual

intrusion.

Importantly, Weikert's privacy is implicated not only by

the blood draw, but also by the creation of his DNA profile and the

entry of the profile into CODIS. Weikert insists that this

additional step raises unique privacy considerations. He explains

that, unlike fingerprints, which yield only information about one’s

identity, DNA "could offer up information about his daughter, his

parents, his other family members . . . . There could be

information about diseases, environmental predispositions, or

-24-

recessive traits — all private health information that ought not to

be forcibly taken and maintained by the government." Weikert's

argument essentially reduces to two possibilities. First, the

government might disregard its current stated procedure of using

only the specified section of junk DNA to create an identifying

profile, and might instead examine other sections of his DNA to

extract personal information. Second, scientific advances might

make it possible to deduce information beyond identity from the

junk DNA the government has obtained under the DNA Act.

With respect to the first scenario, we recognize the risk

that such an abuse may occur. However, such a possibility can be

accorded only limited weight in a balancing analysis that focuses

on present circumstances. Moreover, the DNA Act offers a

substantial deterrent to such hypothetical abuse by imposing a

criminal penalty for misuse of DNA samples. It states that "[a]

person who knowingly discloses a sample or result . . . in any

manner to any person not authorized to receive it, or obtains or

uses, without authorization, such sample or result" is subject to

up to a $250,000 fine or one year in prison. 42 U.S.C. §

14135e(c). Hence, the potential for unauthorized access to

personal information, in violation of the explicit terms of the DNA

-25-

Act, does not significantly increase Weikert's privacy interest in

the present case.10

The second scenario is not unforeseeable. Although the

DNA collection as currently implemented involves only junk DNA that

is not associated with any known physical or mental

characteristics, "new discoveries are being made by the day that

challenge the core assumption underlying junk DNA's name — regions

of DNA previously thought to be 'junk DNA' may be genic after all."

Kincade, 379 F.3d at 850 (Reinhardt, J., dissenting). Therefore,

we agree that, "[s]hould the uses to which 'junk DNA' can be put be

shown in the future to be significantly greater than the record

before us today suggests, a reconsideration of the reasonableness

balance struck would be necessary." Amerson, 483 F.3d at 85 n.13.

However, on the record before us, the possibility that junk DNA may

not be junk DNA some day also does not significantly augment

Weikert's privacy interest in the present case.

2. Government Interests

10

The government has stated repeatedly that it uses only junk

DNA in creating individual DNA profiles. However, we note that the

exclusive use of junk DNA is mandated by neither the DNA Act itself

nor by regulations the Attorney General is authorized to implement

under the Act. See 42 U.S.C. § 14135a(e)(1). Indeed, the DNA Act

includes a broad authorization, id. § 14135a(a)(1)(A) & (B), to

perform “analysis of the deoxyribonucleic acid (DNA) identification

information in a bodily sample,” id. § 14135a(c)(2). None of our

sister circuits has noted this omission. For purposes of this

appeal, we take the government at its word, but emphasize that

evidence that the DNA analysis procedure has been changed to

include non-junk DNA — either officially or unofficially — would

require a reconsideration of our Fourth Amendment analysis.

-26-

In response to Weikert's assertions of privacy, the

government advances several interests served by collecting

Weikert's DNA and entering his profile into CODIS. First, it cites

the need to identify, monitor, and rehabilitate individuals on

supervised release. The Court has "repeatedly acknowledged" the

importance of government "interests in reducing recidivism and

thereby promoting reintegration and positive citizenship among

probationers and parolees," and, by extension, supervised

releasees. Samson, 126 S. Ct. at 2200. The government has an

"overwhelming interest" in maintaining a record of the identities

of such individuals because they "are more likely to commit future

criminal offenses than are average citizens"; indeed, the interest

in combating recidivism is the "very premise behind the system of

close parole supervision." Penn. Bd. of Probation & Parole v.

Scott, 524 U.S. 357, 365 (1998). Relatedly, the collection of DNA

"indirectly promote[s] the rehabilitation of criminal offenders by

deterring them from committing crimes in the future." Sczubelek,

402 F.3d at 186; see also Kincade, 379 F.3d at 838-39.

The government also explains that the inclusion of DNA

profiles in the database enhances its ability to solve crimes

efficiently and accurately. As other circuits have noted:

The individuality of the DNA provides a

dramatic new tool for the law enforcement

effort to match suspects and criminal conduct.

Even a suspect with altered physical features

cannot escape the match that his DNA might

make with a sample contained in a DNA bank, or

-27-

left at the scene of a crime . . . . The

governmental justification for this form of

identification, therefore, relies on no

argument different in kind from that

traditionally advanced for taking fingerprints

and photographs, but with additional force

because of the potentially greater precision

of DNA sampling and matching methods."

Amerson, 483 F.3d at 87; see also Jones v. Murray, 962 F.2d 302,

307 (4th Cir. 1992). Importantly, CODIS also has the capacity to

exonerate those wrongly suspected of criminal activity. The DNA

Act protects "innocent individuals — whose DNA does not match the

DNA collected at the crime scene — from even becoming potential

suspects." Amerson, 483 F.3d at 88; see also Kincade, 379 F.3d at

839 n.38 ("[U]se of CODIS promptly clears thousands of potential

suspects — thereby . . . 'advancing the overwhelming public

interest in prosecuting crimes accurately.'" (quoting Rise v.

Oregon, 59 F.3d 1556, 1561 (9th Cir. 1995)). And, as discussed,

the fact that CODIS has aided over 50,000 investigations around the

country provides empirical evidence of its effectiveness. See

Investigations Aided.

Finally, we note that the DNA Act includes no

discretionary component. Courts have acknowledged that the

presence of such discretion affects the balancing of interests

because it risks "dignitary harms that arouse strong resentment in

parolees and undermine their ability to reintegrate into productive

society.” Samson, 126 S. Ct. at 2202; see also Sczubelek, 402 F.3d

at 187. Here, there is no possibility of such abuse: the DNA Act

-28-

states that the probation office "shall collect a DNA sample from

each . . . individual [on probation, parole, or supervised release]

who is, or has been, convicted of a qualifying federal offense."

42 U.S.C. § 14135a(a)(2).11 In short, the importance of the

government's interests is not diluted by the possibility of

selective enforcement or harassment.

3. Balancing of Interests

After careful consideration, we conclude that the

government's important interests in monitoring and rehabilitating

supervised releasees, solving crimes, and exonerating innocent

individuals outweigh Weikert's privacy interests, given his status

as a supervised releasee, the relatively minimal inconvenience

occasioned by a blood draw, and the coding of genetic information

that, by statute, may be used only for purposes of identification.

We emphasize that other factors, such as demonstrated misuse of the

DNA samples, a change in the government’s collection procedures to

include non-junk DNA, or the discovery of new uses for "junk DNA,"

would require a reevaluation of the reasonableness balance. See

Amerson 483 F.3d at 87 ("[W]e underscore that were we faced with

evidence of misuse of the DNA samples or scientific advances

concerning the information that can be mined from the DNA footprint

stored on the CODIS database, our analysis and ultimate conclusions

11

As noted, qualifying federal offenses include all felonies,

as well as various other offenses, and conspiracy or attempt to

commit those offenses. See supra note 1.

-29-

might very well be different." (citations omitted)); Jones, 440

F.3d at 499 ("[F]uture technological advances in DNA testing

(coupled with possible expansions of the DNA Act's scope) may

empower the government to conduct wide-ranging 'DNA dragnets' that

raise justifiable citations to George Orwell."). After

consideration of the totality of the circumstances present here,

however, we conclude that neither the blood draw nor the subsequent

creation of a DNA profile and the entry of that profile into CODIS

constitutes an unreasonable search or seizure in violation of the

Fourth Amendment.12

D. Limitations

We emphasize another important limitation on our holding.

This case presents a challenge to the practice of collecting and

analyzing the DNA of an individual currently on supervised release.

Thus, we express no opinion on the constitutionality of the

retention and searching by the government of the DNA profiles of

individuals who have completed their terms of conditional release,

which is its standard practice.

12

We respect the dissent's concerns about the long term

implications of our decision here. That perspective is important.

Every doctrine can be applied to future cases in ways that may or

may not be desirable. At the same time, a concern for potential

future applications cannot justify a result at odds with the

circumstances of the case before us. Nevertheless, mindful of the

potential implications of our decision, we have chosen to craft a

narrow decision that recognizes the result required in this case

while preserving the possibility of different outcomes in future

cases.

-30-

On this point, we find persuasive Judge Gould’s

concurrence in the judgment in the Ninth Circuit’s decision in

Kincade, which was necessary to form a majority to uphold the

constitutionality of the DNA Act. Judge Gould emphasized that the

majority opinion expressed no view on the question “whether DNA

samples, though lawfully obtained from a felon on supervised

release, may properly be retained by the government after the felon

has finished his or her term and has paid his or her debt to

society.” 379 F.3d at 842 (Gould, J., concurring). He explained

that, “[a]lthough it might seem counter-intuitive to law

enforcement that a record once gleaned might be lost, there is a

substantial privacy interest at stake.” Id. at 841-42. Thus,

“[i]n 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 privacy.” Id. at 842.

Other authorities also have suggested that the balancing

of the relevant interests would change after an individual

completes the term of conditional release. In Green v. Berge, 354

F.3d 675 (7th Cir. 2004), Judge Easterbrook explained in

concurrence that "[c]ourts that have dealt with constitutional

challenges to DNA-collection statutes frequently have lumped

together all persons subject to these laws," but that in fact

"there are at least four major categories, each subject to

-31-

different legal analysis." Id. at 679 (Easterbrook, J.,

concurring)(emphasis added). He explained that these categories

consist of "prisoners," "persons on conditional release," "felons

whose terms have expired," and "[t]hose who have never been

convicted of a felony." Id. at 679-80. Although Judge Easterbrook

then suggested that the inclusion of former conditional releasees'

DNA profiles in CODIS might be justified, explaining that

"[e]stablished criminality may be the basis of legal obligations

that differ from those of the general population," id. at 680, the

distinction he draws between current and former conditional

releasees strongly suggests that the constitutionality of the DNA

Act should be analyzed separately with respect to each group.

Similarly, in Kincade, the dissenting judges indicated

their agreement with Judge Gould's point that the privacy interests

at stake are different once a conditional releasee has completed

his term. See Kincade, 379 F.3d at 870 (Reinhardt, J.,

dissenting)(referring to the defendant's "full future expectation

of privacy"); id. at 871-72 (Kozinski, J., dissenting)(emphasizing

that "[o]nce Kincade completes his period of supervised release, he

becomes an ordinary citizen just like everyone else. Having paid

his debt to society, he recovers his full Fourth Amendment rights,

and police have no greater authority to invade his private sphere

than anyone else's"); id. at 875 (Hawkins, J., dissenting)(agreeing

that "Judge Gould properly questions whether it is reasonable to

-32-

retain the sample beyond the period of supervised release — in

perpetuity, according to this record," but concluding that the

instant case did not present that issue).

This authority alone suggests the wisdom of withholding

judgment on whether retaining a former conditional releasee's DNA

profile in CODIS passes constitutional muster. The distinction in

status between a current and a former offender clearly translates

to a change in the privacy interests at stake. A former

conditional releasee's increased expectation of privacy warrants a

separate balancing of that privacy interest against the

government's interest in retaining his profile in CODIS.

There are other considerations as well that support this

separate balancing. The ongoing evolution in our understanding of

DNA warrants particular caution in determining what is

constitutionally permissible. DNA profiles possess unique

properties that distinguish them from other records. The samples

from which those profiles are created have the potential to reveal

information about an individual’s health, propensity for certain

diseases, and, perhaps, sexual orientation and propensity for

certain conduct. Kincade, 379 F.3d at 842 n.3 (Gould, J.,

concurring); id. at 850 (Reinhardt, J., dissenting). Moreover, DNA

contains information relating to hereditary characteristics, and

thus the collection of such information also may reveal information

about profiled individuals' family members. As we have explained,

-33-

the technology surrounding DNA analysis is changing rapidly, and we

think it more prudent to decide whether the DNA profile may be

retained in CODIS following a term of conditional release in light

of the state of technology when that issue is brought before us.

Finally, we note that the group of offenders whose

profiles are entered into CODIS — all felons, plus individuals who

have committed a variety of other crimes — is heterogenous. The

justification for retaining the DNA of one type of offender beyond

the term of conditional release might be more powerful than the

justification for retaining the DNA of a different type of

offender, and we do not wish to make a blanket determination on the

undeveloped record now before us.

We acknowledge that fingerprints and other personal

records "are routinely maintained in law enforcement files once

taken." Kincade, 379 F.3d at 842 n.3 (Gould, J., concurring).

However, it may be time to reexamine the proposition that an

individual no longer has any expectation of privacy in information

seized by the government so long as the government has obtained

that information lawfully.13 Specifically with reference to DNA

13

We recognize that no circuit has held that the DNA record

must be expunged. The D.C. Circuit, in Johnson, explicitly held

that no Fourth Amendment violation results from retaining the DNA

in the database after the individual in question is no longer on

conditional release. 440 F.3d at 498. The court explained that

“accessing the records stored in the CODIS database is not a

‘search’ for Fourth Amendment purposes,” because “the process of

matching one piece of personal information against government

records does not implicate the Fourth Amendment.” Id. It then

-34-

profiling, scholars have argued that "individuals do not lose their

privacy interest in [] information merely because the government

first obtained [that information] for a valid purpose. Rather,

courts should confront the question of whether the prospective law

enforcement use . . . satisfies the reasonableness requirement of

the Fourth Amendment." Harold J. Krent, Of Diaries and Data Banks:

Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49, 94

(1995); see also Jason Tarricone, Note, "An Ordinary Citizen Just

Like Everyone Else": The Indefinite Retention of Offenders' DNA, 2

Stan. J. Civ. Rts. & Civ. Liberties 209, 249-50 (2005)(concluding

that the DNA profile, but not the tissue sample from which it was

created, should be retained after a term of conditional release).

The argument for a continued expectation of privacy despite the

legality of an initial search is particularly deserving of separate

consideration given the wealth of information that DNA has the

potential to reveal, as well as the fact that science is

continually uncovering new information that is contained in our

DNA. We are hesitant to say that an individual has no continued

analogized CODIS to police files containing snapshots and

fingerprint databases, concluding that if such material “is taken

in conformance with the Fourth Amendment, the government’s storage

and use of it does not give rise to an independent Fourth Amendment

claim.” Id. at 499. Likewise, in Amerson, the Second Circuit

indicated that retention of the DNA profile in CODIS does not

“change[] the ultimate analysis” because “we have upheld, in the

past, the retention and use of information properly collected under

the Fourth Amendment, if there was a strong enough public interest

in retaining it, when there no longer was a diminished expectation

of privacy.” 483 F.3d 86.

-35-

expectation of privacy in a DNA profile when our understanding of

the information that such a profile contains is necessarily

incomplete. Cf. Florida v. Riley, 488 U.S. 445, 454-55

(1989)(O'Connor, J., concurring)(indicating that reasonable

expectations of privacy may change over time depending on what

"'society is prepared to recognize as "reasonable"'" (quoting Katz

v. United States, 389 U.S. 347, 361 (1967))). In short, there may

be a persuasive argument on different facts that an individual

retains an expectation of privacy in the future uses of her DNA

profile. That possibility, and the other interests we have

identified above, persuade us that it is wise to reserve judgment

on the constitutional issues implicated by the retention of the DNA

profile after the period of supervised release has been completed.

Our decision to limit our holding accords with the

general practice of deciding constitutional cases narrowly. See

United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 478

(1995)(noting “[o]ur policy of avoiding unnecessary adjudication of

constitutional issues"); Ashwander v. Tenn. Valley Auth., 297 U.S.

288, 347 (1936)(“The Court will not ‘formulate a rule of

constitutional law broader than is required by the precise facts to

which it is to be applied.’” (quoting Liverpool, N.Y. & Phil.

Steamship Co. v. Emigration Comm’rs, 113 U.S. 33, 39 (1885)));

Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217,

219-20 (1912)(“[T]his court must deal with the case in hand, and

-36-

not with imaginary ones. It suffices, therefore, to hold that, as

applied to cases like the present, the statute is valid.”); see

also Kincade, 379 F.3d at 840 n.2 (Gould, J., concurring). We see

no reason to depart from that practice here. Thus, we save for

another day our consideration of the Fourth Amendment interests at

stake in retaining an individual’s DNA in the database after he

completes his term of supervised release.

III.

After careful consideration, we conclude that the

collection and analysis of Weikert’s DNA under the DNA Act does not

violate the Fourth Amendment. Consequently, Weikert is unlikely to

succeed on the merits of his claim. This merits issue is by far

the most important consideration in deciding whether a preliminary

injunction was improvidently granted. See New Comm Wireless

Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). We

thus reverse the decision of the district court granting a

preliminary injunction and remand for further proceedings. Each

party shall bear its own costs.

So ordered.

-37-

STAHL, Senior Circuit Judge, dissenting. I write briefly

to dissent from the majority's able opinion. I believe there are

important distinctions between Samson v. California, 126 S. Ct.

2193 (2006), and the case before us, and would therefore employ the

special needs test and conclude that the suspicionless search

mandated by the DNA Act is an unconstitutional violation of the

Fourth Amendment. Where a right as central to our liberty as the

freedom from unreasonable searches and seizures is at stake, I am

unwilling to go further in restricting that right than the Supreme

Court has explicitly required.

The majority is correct that Samson moved one step beyond

United States v. Knights, 534 U.S. 112 (2001), by using the

totality of the circumstances test to approve a suspicionless

search of a paroled individual without warrant or cause. However,

in permitting this particular suspicionless search, the Court

merely identified, in its own language, an additional "limited

circumstance[]" in which a suspicionless search can survive Fourth

Amendment review. In my view, the condition highlighted by the

Court which gave rise to this additional limited circumstance is

not present in the case before us.

In justifying its use of the totality of the

circumstances test in a suspicionless search case, the Court wrote:

Therefore, although this Court has only

sanctioned suspicionless searches in limited

circumstances, namely programmatic and special

needs searches, we have never held that these

-2-

are the only limited circumstances in which

searches absent individualized suspicion could

be "reasonable" under the Fourth Amendment.

In light of California's earnest concerns

respecting recidivism, public safety, and

reintegration of parolees into productive

society, and because the object of the Fourth

Amendment is reasonableness, our decision

today is far from remarkable.

Samson, 126 S. Ct. at 2201 n.4. In others words, as I read this

passage, the Supreme Court has now identified three limited

circumstances in which a suspicionless search will survive Fourth

Amendment review: (1) programmatic searches; (2) special needs

searches; and (3) searches conducted as part of a state's

conditional release program. This last category is limited by the

Court's language to a state search program that is genuinely

designed to improve the monitoring and reintegration of conditional

releasees.

In my view, the DNA extraction and cataloguing program

mandated by the DNA Act does not fit within this third limited

category. As the majority makes clear, the plain language of the

Act and its legislative history show that the purpose of the DNA

Act is future crime-solving. Nothing more. It is not part of an

earnest effort on the part of the state to monitor and reintegrate

conditional releasees into society.

Because the Act does not satisfy the limited circumstance

that validated the search in Samson, in order to survive Fourth

Amendment review as a suspicionless search it must constitute

-3-

either a programmatic search (which no party has contended) or a

special needs search.14 I agree with the majority that because "law

enforcement objectives are central to the DNA Act . . . the

analysis applicable to special needs 'beyond the normal need for

law enforcement' is inapplicable here." Ante at 21 (citation

omitted). Therefore, I would hold the suspicionless search at

issue here unconstitutional under the Fourth Amendment, as it does

not meet the criteria of any of the three limited circumstances for

constitutional suspicionless searches that have been identified by

the Supreme Court.

Having made this narrow legal point, I am also compelled

to raise my grave concern that the majority's totality of the

circumstances analysis represents a further unfortunate step in the

continuing erosion of the Fourth Amendment's vital protections. By

assigning so little weight to the privacy invasion posed by

placement of one's unique DNA in a national database, and such

overwhelming weight to the state's interest in future crime

solving, the majority unfortunately lays the groundwork for the

expansion of such analysis beyond the category of prisoners,

14

As I read Samson, the Supreme Court has left open the

possibility that other types of suspicionless searches might also

survive Fourth Amendment review under the totality of the

circumstances test. I see no reason to conclude that the DNA Act

comprises a fourth exception to the general requirement of

individualized suspicion. In addition, in order to protect the

integrity of the Fourth Amendment, I would leave it to the Supreme

Court to identify additional exceptions to the general rule.

-4-

parolees, probationers, and those on conditional release, to

include ordinary citizens who, because of their employment,

activity, or position in society, also could be said to have a

reduced expectation of privacy.

I recognize that the majority leaves for another day the

question of the right to retain the DNA profile in the CODIS

database following the conclusion of appellee's supervised release

period. However, other circuits have already decided this question

and found such a limitation unnecessary. See, e.g., United States

v. Sczubelek, 402 F.3d 175, 184-85 (3rd Cir. 2005) (analogizing

permanent retention of DNA profiles to permanent retention of

fingerprints and photographs); cf. United States v. Kincade, 379

F.3d 813, 875 (9th Cir. 2004) (Kozinski, J., dissenting) ("As a

practical matter . . . the chance that Kincade could have his DNA

removed from the CODIS database once he completes his supervised

release is about the same as the chance that someone arrested and

fingerprinted, but eventually found innocent, could force the FBI

to delete his fingerprints from its database, namely nil.").

It was said by Edmund Burke, "The true danger is when

liberty is nibbled away, for expedients, and by parts." I cannot,

in good conscience, sign on to a decision that I believe provides

the legal rationale for an enormous expansion of state intrusion

into the most private of realms, without warrant, probable cause,

or even suspicion.

-5-

Therefore, I respectfully dissent.

-6-