Friedman v. Boucher

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH A. FRIEDMAN,  No. 05-15675

Plaintiff-Appellant,

v.  D.C. No.

CV-04-00286-JCM

DOLPHUS BOUCHER; ELISSA LUZAICH,

OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

October 19, 2007—San Francisco, California

Filed June 23, 2009

Before: Jane R. Roth,* Sidney R. Thomas, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Thomas;

Dissent by Judge Callahan

*The Honorable Jane R. Roth, Senior United States Circuit Judge for

the Third Circuit, sitting by designation.

7597

FRIEDMAN v. BOUCHER 7601

COUNSEL

Tyler A. Baker, Saundra Riley, Kimberly I. Culp, and Julie A.

Nokleberg; Fenwick & West LLP; Mountain View, Califor-

nia; for the appellant.

Robert J. Gower; Deputy District Attorney; Las Vegas,

Nevada; for the appellees.

OPINION

THOMAS, Circuit Judge:

Las Vegas Metropolitan Police Detective Dolphus Bou-

cher, with the approval of Clark County Deputy District

Attorney Elissa Luzaich, forcefully extracted a DNA sample

from Kenneth Friedman. The officer did not have a warrant

or a court order authorizing the taking of the sample, nor was

Friedman under any suspicion of a crime for which a DNA

sample might be justified. The extraction occurred simply

because the deputy district attorney wanted to put Friedman’s

7602 FRIEDMAN v. BOUCHER

DNA sample in a cold case data bank. Friedman alleges that

the forcible extraction occurred after he was shackled and

chained to a metal bar.

Friedman brought suit against Boucher and Luzaich

(“Defendants”) under 42 U.S.C. § 1983 on the ground that

they violated his Fourth Amendment rights by taking the sam-

ple. The district court held that Boucher and Luzaich are enti-

tled to qualified immunity and granted Defendants’ motion to

dismiss. Because the forcible taking of the DNA sample under

these circumstances violated Friedman’s clearly established

Fourth Amendment rights, we reverse.

I

In 1980, Kenneth Friedman pled guilty to sexual inter-

course without consent in the District Court of the Fourth

Judicial District of the State of Montana. In 2001 Friedman

completed his sentence and was released from Montana’s

supervision. After his release he was not a parolee, proba-

tioner, or otherwise under the supervision of the State of Mon-

tana.1 He then moved to Las Vegas, Nevada.

In March 2003, Detective Boucher asked Friedman to pro-

vide a DNA sample. Friedman was at the time incarcerated in

Clark County Jail as a pre-trial detainee pending the prosecu-

tion of unrelated charges. Boucher had no warrant, no court

order, no individualized suspicion, had not articulated an

offense for which a DNA sample was required or justified,

1

Because the district court granted summary judgment in favor of the

Defendants, the facts here are stated in the light most favorable to Fried-

man, the nonmoving party. See Olsen v. Idaho State Bd. of Medicine, 363

F.3d 916, 922 (9th Cir. 2004). We recognize that the Defendants contest

Friedman’s factual allegations, and our recitation of facts taken in the light

most favorable to Friedman does not constitute any opinion or conclusion

as to how the factual disputes ultimately may be resolved in the district

court.

FRIEDMAN v. BOUCHER 7603

and admitted as much to Friedman. He simply wanted the

sample as an aid to solve cold cases.

Friedman declined to volunteer the DNA sample and asked

to speak with his attorney. Boucher refused to allow Friedman

to contact his attorney and told him that Deputy District

Attorney Luzaich had authorized Boucher to obtain a DNA

sample from Friedman, by force if necessary. Another detec-

tive told Friedman, “we can force you, we’re authorized and

you can get hurt pretty bad.” Boucher and the other detective

also threatened to call in other officers to beat him. Friedman

alleges that, during the course of these interactions, he was

sitting on a bench in chains and shackles and chained to a

metal bar on the bench.

After Friedman repeatedly refused to voluntarily provide a

DNA sample, Boucher forced Friedman’s jaw open and force-

fully took a buccal swab2 from the inside of Friedman’s

mouth. This search was not related to the Nevada charges

then-pending against Friedman. Indeed, Luzaich later repre-

sented 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. In fact,

not only was Friedman not an active suspect in any cold case,

the record does not suggest that Friedman’s DNA was ever

actually used in the resolution of any cold case.

Friedman filed suit in federal district court, in the District

of Nevada, on March 10, 2004, alleging that Boucher and

Luzaich’s forcible taking of his DNA violated his Fourth

Amendment right to be free from unreasonable searches. Bou-

cher and Luzaich moved to dismiss the complaint, arguing

that they were entitled to qualified immunity.

2

A buccal swab is a swab taken from the mouth area to collect cheek

cells.

7604 FRIEDMAN v. BOUCHER

The district court initially denied Defendants’ Motion to

Dismiss. Shortly thereafter, we decided United States v. Kin-

cade, 379 F.3d 813 (9th Cir. 2004) (en banc), which upheld

the constitutionality of compulsory DNA profiling of certain

conditionally-released federal offenders under the DNA Anal-

ysis Backlog Elimination Act of 2000., Pub. L. No. 106-546,

114 Stat. 2726 (2000). The district court then ordered Fried-

man to show cause why Boucher and Luzaich were not enti-

tled to qualified immunity, in light of Kincade. On March 25,

2005, relying on Kincade and the exhibits attached to Defen-

dants’ Motion to Dismiss, the district court granted summary

judgment3 in favor of Defendants on the ground that Defen-

dants were entitled to qualified immunity. This appeal fol-

lowed.

II

We review de novo a district court’s decision to grant sum-

mary judgment on the ground of qualified immunity. Motley

v. Parks, 383 F.3d 1059, 1062 (9th Cir. 2004). In reviewing

a district court’s grant of summary judgment we must deter-

mine, viewing the evidence in the light most favorable to the

nonmoving party, whether there are any genuine issues of

material fact and whether the district court correctly applied

the relevant substantive law. Olsen, 363 F.3d at 922.

[1] To determine whether a government employee is enti-

tled to qualified immunity, we use a two-part test. Saucier v.

Katz, 533 U.S. 194, 201 (2001). We must determine whether,

viewed in the light most favorable to the plaintiff, the govern-

ment employee violated the plaintiff ’s constitutional rights.

3

The motion granted by the district court was a motion to dismiss. How-

ever, in granting that motion, the court relied on documents attached to the

motion which were outside the allegations in Friedman’s complaint. When

a district court relies on information outside the complaint in a motion to

dismiss, the motion is automatically converted to a motion for summary

judgment. Fed. R. Civ. P. 12(b)(6); Anderson v. Angelone, 86 F.3d 932,

934 (9th Cir. 1996).

FRIEDMAN v. BOUCHER 7605

Id. We must also determine whether the rights were clearly

established at the time of the violation. Id.; Pearson v. Calla-

han, 129 S. Ct. 808, 818-22 (2009).

III

[2] We turn first to the question of whether the warrantless,

suspicionless, forcible taking of Friedman’s DNA violated his

constitutional rights. There is no question that the buccal swab

constituted a search under the Fourth Amendment. The

Supreme Court has held that invasions of the body are

searches and, thus, are entitled to the protections of the Fourth

Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489

U.S. 602, 616-17 (1989) (breathalyzer and urine sample);

Cupp v. Murphy, 412 U.S. 291, 295 (1973) (finger nail scrap-

ings); Schmerber v. California, 384 U.S. 757, 767-71 (1966)

(blood). We have held, similarly, that the Fourth Amendment

protects against “all searches that invade the interior of the

body—whether by a needle that punctures the skin or a visual

intrusion into a body cavity.” Fuller v. M.G. Jewelry, 950

F.2d 1437, 1449 (9th Cir. 1991); see also Padgett v. Donald,

401 F.3d 1273, 1277 (11th Cir. 2005) (swabbing the inside of

mouth for saliva is a search); Schlicher v. Peters, 103 F.3d

940, 942-43 (10th Cir. 1996) (collection of saliva is a search).

As we put it in United States v. Kriesel: “The compulsory

extraction of blood for DNA profiling unquestionably impli-

cates the right to personal security embodied in the Fourth

Amendment, and thus constitutes a ‘search’ within the mean-

ing of the Constitution.” 508 F.3d 941, 946 (9th Cir. 2007)

(quoting Kincade, 379 F.3d at 821).

[3] There is also no dispute that the search was conducted

without a warrant. “A warrantless search is unconstitutional

unless the government demonstrates that it ‘fall[s] within cer-

tain established and well-defined exceptions to the warrant

clause.’ ” United States v. Brown, 563 F.3d 410, 414-15 (9th

Cir. 2009) (quoting United States v. Murphy, 516 F.3d 1117,

7606 FRIEDMAN v. BOUCHER

1120 (9th Cir. 2008) (quoting United States v. Delgadillo-

Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988))).

Thus, unless the government can establish that the warrant-

less, suspicionless, forcible taking of a buccal swap satisfies

one of the exceptions to the warrant requirement, we must

hold the search to be unconstitutional.

Defendants offer three arguments in urging that an excep-

tion to the warrant requirement applies in this case: (1) the

special needs exception to the warrant requirement; (2) a

Montana statute authorized the search; and (3) the search was

“reasonable.”

A

[4] The government was not entitled to conduct the war-

rantless, suspicionless search based on the “special needs”

exception. The “special needs” exception is “an exception to

the general rule that a search must be based on individualized

suspicion of wrongdoing.” City of Indianapolis v. Edmond,

531 U.S. 32, 54 (2000). Under this exception, suspicionless

searches may be upheld if they are “conducted for important

non-law enforcement purposes in contexts where adherence to

the warrant-and-probable cause requirement would be imprac-

ticable.” Kincade, 379 F.3d at 823 (emphasis added); see also

United States v. Heckencamp, 482 F.3d 1142, 1147 (9th Cir.

2007) (applying a special needs exception when a university

computer system was under imminent threat).

[5] The “special needs” exception is limited to “important

non-law enforcement purposes.” Kincade, 379 F.3d at 823.

The only government interest asserted by Nevada in taking

Friedman’s DNA was to help solve “cold cases.” Solving

crimes is clearly a normal law enforcement function. Because

the “special needs” exception applies only to non-law

enforcement purposes, and the State’s interest here is the use

FRIEDMAN v. BOUCHER 7607

of data for purely law enforcement purposes, the “special

needs” exception is inapplicable.

B

[6] Defendants’ second argument is that they were permit-

ted to take the buccal swab by Montana Code Annotated Sec-

tion 44-6-103 (2003) (“the Montana Statute”). The Montana

Statute was passed in 1995 and requires persons convicted of

certain enumerated offenses to provide a biological sample to

the Montana Department of Justice for DNA analysis. Mont.

Code Ann. § 44-6-103. The crime to which Friedman pled

guilty in 1980 was one of the predicate offenses.

As a preliminary matter, we note that adherence to a state

statute does not guarantee compliance with the Fourth

Amendment. See Virginia v. Moore, 128 S. Ct. 1598, 1602

(2008). We need not consider whether the Montana statute

itself violates the Fourth Amendment, however. Defendants’

argument that the buccal swab was properly taken in accor-

dance with the Statute fails because the Montana statute does

not apply to Friedman.

1

[7] The Montana Statute does not apply extraterritorially.

At the risk of stating the obvious, the Montana Statute is a

statute passed by the Montana State Legislature which oper-

ates as law in the State of Montana. Defendants argue that

Nevada state officials can take action which would otherwise

be prohibited in Nevada4 against a Nevada citizen in the State

of Nevada simply by relying on a Montana statute. This argu-

ment was rejected almost a century ago by the United States

Supreme Court, when it considered “the power of the State of

Missouri to extend the operation of its statutes beyond its bor-

ders into the jurisdiction of other States, so as in such other

4

There is no Nevada statute comparable to the Montana Statute.

7608 FRIEDMAN v. BOUCHER

States to destroy or impair the right of persons not citizens of

Missouri to contract.” N.Y. Life Ins. Co. v. Head, 234 U.S.

149, 160 (1914). Holding that a state does not possess such

power, the Court explained:

Such question, we think, admits of but one answer

since it would be impossible to permit the statutes of

Missouri to operate beyond the jurisdiction of that

State and in the State of New York and there destroy

freedom of contract without throwing down the con-

stitutional barriers by which all the States are

restricted . . . . This is so obviously the necessary

result of the Constitution that it has rarely been cal-

led in question and hence authorities directly dealing

with it do not abound.

Id. at 161 (emphasis added). See also BMW of North America,

Inc. v. Gore, 517 U.S. 559, 572 (citing N.Y. Life in support of

the proposition that “[n]o State can legislate except with refer-

ence to its own jurisdiction.”).

More recently, the Supreme Court rejected the State of

Nevada’s attempt to obtain immunity from suit in California

by reliance on immunities granted under Nevada law. See

Nevada v. Hall, 440 U.S. 410, 426 (1979) (“The people of

Nevada have consented to a system in which their State is

subject only to limited liability in tort. But the people of Cali-

fornia, who have had no voice in Nevada’s decision have

adopted a different system. Each of these decisions is equally

entitled to our respect.”).

[8] Defendants were Nevada officials searching a Nevada

citizen in the state of Nevada for Nevada law enforcement

purposes. They are not entitled to justify their search with a

Montana statute.

2

[9] Even if the Montana Statute could constitutionally

apply extraterritorially, the plain language of the Montana

FRIEDMAN v. BOUCHER 7609

Statute makes the statute inapplicable to the seizure of Fried-

man’s DNA by Nevada officials for a number of reasons.

First, the Montana Statute does not apply to persons like

Friedman who are not under state supervision. While the stat-

ute requires a DNA sample from all “person[s] convicted of

a felony offense,” Mont. Code. Ann. § 44-6-103(1), the stat-

ute provides only one consequence if such a person refuses to

provide a sample: “The knowing refusal or failure to provide

a biological sample under this part is grounds for revocation

of a suspended or deferred imposition of sentence.” § 44-6-

103(5). At the time that Defendants demanded the DNA sam-

ple, Friedman was not subject to either a suspended or

deferred imposition of sentence. Given that his criminal judg-

ment had been satisfied, Montana had no further supervisory

authority over Friedman. Friedman was not subject to the

requirements of the statute. See State v. Johnson, 108 P.3d

485, 487 (Mont. 2005) (noting that the DNA test requirements

applied to prisoners, and distinguishing the privacy interests

of private citizens); see also United States v. Sczubelek, 402

F.3d 175, 178 (3rd Cir. 2005) (noting in context of federal law

that “[i]f the government no longer has the authority to collect

a DNA sample from [the defendant], there is no need to deter-

mine the constitutionality of taking that sample.”).5

Second, the Montana statute only authorizes the collection

of DNA for placement in the Montana Department of Justice

DNA identification index. Mont. Code Ann. § 44-6-1-102.

When a sample is collected, the sample must be transmitted

5

Nor was Friedman subject under Montana law to further court jurisdic-

tion after the formal term had expired, as was the case under federal law

in Sczubelek, 402 F.3d at 179; see also United States v. Neville, 985 F.2d

992, 995-96 (9th Cir. 1993) (holding under federal statute that even if the

term of supervised release had expired, a district court retained jurisdiction

to hold a hearing and revoke the defendant’s supervised release provided

that some formal revocation proceeding had begun within the term of

supervised release—whether it be a warrant, summons, an order to show

cause, or a petition charging a violation of supervised release.)

7610 FRIEDMAN v. BOUCHER

to the Montana Department of Justice within seven days.

Mont. Code Ann. § 44-6-103(2); Mont. Admin. R. 23.4.503.

Once placed in the Montana index, the DNA records may

only be released on written request by a statutorily qualified

party, on terms and conditions established by the Montana

Department of Justice. Mont. Code Ann. § 44-6-106. DNA

testing records maintained in the index are considered confi-

dential criminal justice information, see Mont. Code Ann.

§ 44-6-108, subject to the strict restrictions on disclosure con-

tained in the Montana Criminal Justice Information Act of

1979, Mont. Code Ann. § 44-5-303. Nevada officials did not

purport to be taking the sample for transmittal to Montana;

rather, they wanted the DNA sample to check against cold

cases in Nevada. There is nothing in the record to indicate that

Nevada transmitted the sample to Montana, or that it subse-

quently sought written permission from Montana for use of

the sample, as required by the Montana Statute.

Third, the Montana Statute does not authorize Defendants

to obtain a DNA sample. The statute explicitly provides: “If

the person is not incarcerated in a facility administered by the

department of corrections, the sample must be provided to a

person or entity designated by the county sheriff.” § 44-6-

103(2) (emphasis added). There is nothing in the record to

indicate that either Boucher or Luzaich were ever designated

by a Montana county sheriff to take Friedman’s DNA sample.6

6

After moving to Las Vegas, Friedman received a letter (“the Montana

Letter”) from Bill Slaughter, of the Montana Department of Corrections.

The letter directed Friedman to provide a DNA sample to Sergeant Tom

Keller of the Clark County Sheriff’s Department in Nevada. The letter

cited the Montana Statute. Defendants argue that this letter gave them

authority to take the DNA sample. However, the letter does not mention

Boucher, Luzaich or the Las Vegas Police Department and was not issued

with the authority of a Montana county sheriff, as would be required by

the statute. Further, the letter was addressed only to Friedman and there

is no evidence on the record that Boucher or Luzaich were even aware of

the letter at the time of the search. Friedman declined to voluntarily pro-

vide a DNA sample, as requested by the letter. Friedman also avers that

FRIEDMAN v. BOUCHER 7611

Fourth, no part of the Montana Statute purports to authorize

any entity or person to take a sample from any subject by

force, as Defendants did in this case. The Montana Statute

requires persons subject to its provisions to “provide” a bio-

logical sample. As discussed above, a “knowing refusal or

failure to provide” is “grounds for revocation of a suspended

or deferred imposition of sentence.” Mont. Code Ann. § 44-6-

103(5). There are no other penalties prescribed for failure to

willingly provide a sample, and the Montana Statute does not

authorize any law enforcement official, either within or out-

side Montana, to extract a DNA sample by force.

[10] Finally, the Montana Statute must be construed in light

of the Constitution of Montana. The Montana Constitution

contains one of the strongest state constitutional protections of

privacy in the Nation. See Mont. Const. art. II, § 10 (“The

right of individual privacy is essential to the well-being of a

free society and shall not be infringed without the showing of

a compelling state interest.”). “Montana’s Constitution affords

citizens broader protection at the hands of the government in

search and seizure cases than does the Federal Constitution.”

State v. Siegal, 934 P.2d 176, 183 (Mont. 1997); see also

Hon. James C. Nelson, The Right to Privacy, 69 Mont. L.

Rev. 257, 259 (2007) (“This [privacy] right in Montana guar-

antees far greater protection from unreasonable searches and

seizures than does the Fourth Amendment to the federal Con-

stitution.”).

[11] In State v. Johnson, the Montana Supreme Court was

not only careful to exclude private citizens from its holding

that the Montana Statute authorized the collection of DNA

he and his attorney consulted with the Montana Attorney General’s Office

and received oral confirmation that Montana would not and could not

enforce compliance with the Montana Statute while Friedman resided as

a private citizen in Nevada. In short, the letter cannot be construed to

invoke the designation provision of the statute.

7612 FRIEDMAN v. BOUCHER

samples, but specifically reserved the question of whether the

Montana Statute could withstand scrutiny under the Constitu-

tion of Montana. 108 P.3d at 487. Thus, whether the Montana

Statute itself would withstand state constitutional scrutiny by

the Montana Supreme Court is an open question. In constru-

ing statutes, “we are governed by the canon of constitutional

avoidance, which requires a statute to be construed so as to

avoid serious doubts as to the constitutionality of an alternate

construction.” Nadarajah v. Gonzales, 443 F.3d 1069, 1076

(9th Cir. 2006). Given the constitutional restrictions applica-

ble to this statute, we are bound to construe it narrowly. A

narrow construction of the Montana Statute cannot possibly

support the extraterritorial, forcible extraction of DNA from

a private citizen of another State, who is not subject to Mon-

tana supervision.

3

For all these reasons, we must reject the government’s reli-

ance on the Montana statute as an exception to the warrant

requirement.

C

Defendants’ final argument is that the search was “reason-

able,” contending that pre-trial detainees have limited privacy

rights that must yield to the desires of law enforcement to col-

lect DNA samples for use in law enforcement databases.

Thus, the reasoning goes, the government has the inherent

right, without a search warrant and without suspicion of crim-

inal activity, to extract DNA forcibly from pre-trial detainees.

However, neither the Supreme Court nor this Court has ever

ruled that law enforcement officers may conduct suspicionless

searches on pretrial detainees for reasons other than prison

security. Indeed, as the Supreme Court stated emphatically in

Schmerber: “The interests in human dignity and privacy

which the Fourth Amendment protects forbid any such intru-

sions on the mere chance that desired evidence might be

FRIEDMAN v. BOUCHER 7613

obtained.” 384 U.S. at 769-70. In contrast to the government’s

position in this case, which would endorse routine, forcible

DNA extraction, the Court concluded: “The importance of

informed, detached and deliberate determinations of the issue

whether or not to invade another’s body in search of evidence

of guilt is indisputable and great.” Id. at 770.

[12] We have long recognized that pre-trial detainees retain

greater privacy interests, for the purposes of Fourth Amend-

ment analysis, than do persons who are incarcerated pursuant

to a valid conviction. See, e.g., Kennedy v. Los Angeles Police

Dep’t, 901 F.2d 702, 714 (9th Cir. 1990) (impliedly overruled

on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991)

(per curiam)) (holding unconstitutional a police policy that

subjected all felony arrestees to visual body-cavity searches);

Ward v. County of San Diego, 791 F.2d 1329, 1333 (9th Cir.

1986) (distinguishing a constitutional strip search policy for

custodial detainees from an unconstitutional one for

arrestees); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.

1984) (per curiam) (overruled on other grounds by Hodgers-

Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en

banc)) (finding unconstitutional a policy of strip searching

arrestees for minor offenses without reasonable suspicion that

the arrestee is carrying or concealing contraband or suffering

from a communicable disease).

[13] We have also carefully confined administrative

searches at detention facilities to those reasonably related to

security concerns. In Kennedy, for example, we held unconsti-

tutional a blanket strip search policy which subjected all fel-

ony arrestees to a visual body cavity search. 901 F.2d at 714.

We noted that “the enacted policy, if it is to be constitutional,

must be ‘reasonably related’ to the penal institution’s interest

in maintaining security.” Id. at 713. Even in Bell v. Wolfish,

441 U.S. 520 (1979), a case upon which the dissent relies, the

Supreme Court repeated its observation that “[t]here is no iron

curtain drawn between the Constitution and the prisons of this

country,” id. at 544 (quoting Wolff v. McDonnell, 418 U.S.

7614 FRIEDMAN v. BOUCHER

539, 555-56 (1974)), but justified the search for contraband at

issue on the basis of the “institution’s interest in maintaining

jail security,” id. at 540. Neither the Supreme Court nor our

court has permitted general suspicionless, warrantless

searches of pre-trial detainees for grounds other than institu-

tional security or other legitimate penological interests. Thus,

there is no support for the government’s contention that Fried-

man’s status as a pre-trial detainee justifies forcible extraction

of his DNA.

Defendants cite a number of appellate cases that uphold the

constitutionality of state DNA bank laws. Not one of those

cases involved a search of a pretrial detainee—as opposed to

a convicted prisoner—or a state law that mandated searches

of pretrial detainees.7 None of these cases uphold a search

similar to the suspicionless one of a pretrial detainee in this

case.

In Kincade and Kriesel, we upheld against Fourth Amend-

ment challenges a federal DNA profiling law and amend-

ments extending that law. However, both of those cases

concerned extracting DNA from convicted felons still under

state supervision. See Kriesel, 508 F.3d at 944 (Kriesel was

on probation); Kincade, 379 F.3d at 821 (Kincade was on

parole). The law at issue required DNA samples “to be col-

lected from individuals in custody and those on probation,

7

See Rise v. Oregon, 59 F.3d 1556, 1558 (9th Cir. 1995) (upholding an

Oregon law requiring persons convicted of murder, a sexual offense, or

conspiracy or attempt to commit a sexual offense to submit a blood sample

for use in a DNA bank); Roe v. Marcotte, 193 F.3d 72, 74 (2d Cir. 1999)

(upholding a Connecticut state law requiring convicted sexual offenders to

submit blood samples to a DNA bank); Schlicher v. Peters, 103 F.3d 940,

941 (10th Cir. 1996) (requiring certain convicted felons to submit blood

and saliva specimens for a DNA bank); Boling v. Romer, 101 F.3d 1336,

1338 (10th Cir. 1996) (upholding a Colorado law requiring inmates con-

victed of a sexual assault offense to provide the state with DNA samples);

Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) (upholding a similar Vir-

ginia law that applies to convicted felons).

FRIEDMAN v. BOUCHER 7615

parole, or supervised release after being convicted of qualify-

ing Federal offenses.” Kriesel, 508 F.3d at 943 (internal quo-

tation marks omitted). The Supreme Court articulated the

rationale for sustaining these types of searches in Samson v.

California, in which the Court upheld a search on the basis of

the plaintiff ’s status as a parolee, citing the requirement of

“intense supervision” of such persons and the problems of

“re-integration” of parolees into society. 547 U.S. 843, 854

(2006).

However, the considerations underlying Sampson, Kincade,

and Kriesel are absent here. Friedman was not on parole. He

had completed his term of supervised release successfully and

was no longer the supervision of any authority. The Nevada

authorities extracted the DNA from Friedman not because

they suspected he had committed a crime, nor to aid in his

reintegration into society, nor as a matter of his continuing

supervision. Their purpose was simply to gather human tissue

for a law enforcement databank, an objective that does not

cleanse an otherwise unconstitutional search.

D

[14] The warrantless, suspicionless, forcible extraction of a

DNA sample from a private citizen violates the Fourth

Amendment. The actions of the officers were not justified

under the “special needs” exception, reliance on an extraterri-

torial statute, or on general Fourth Amendment principles.

The search and seizure of Friedman’s DNA violated the Con-

stitution.

IV

[15] Having determined that the search violated the Consti-

tution, we must next ask whether the constitutional right vio-

lated was clearly established at the time of the search. See

Saucier, 533 U.S. at 201. “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether

7616 FRIEDMAN v. BOUCHER

it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id. at 202. In other

words, the inquiry is whether a reasonable person could have

believed his actions lawful at the time they were undertaken.

Anderson v. Creighton, 483 U.S. 635, 646 (1987).

The rule that a search violates the Fourth Amendment if it

is not supported by either probable cause and a warrant or a

recognized exception to the warrant requirement has long

been clearly established. See, e.g., Schmerber, 384 U.S. at

770-71. Thus, the real question in determining whether

Defendants are entitled to qualified immunity is whether it

was clearly established, at the time of the search, that such a

search does not fall under any recognized exception. As dis-

cussed above, the only recognized exceptions that the search

could possibly fall under are the special needs exception, the

Montana Statute, or its “reasonableness.”8

[16] No reasonable detective or prosecutor could have

thought that the search was justified under the “special needs”

exception. Under the “special needs” exception, suspicionless

searches are upheld if they are “conducted for important non-

law enforcement purposes in contexts where adherence to the

warrant-and-probable cause requirement would be impractica-

ble.” Kincade, 379 F.3d at 823 (emphasis added). There is no

question that the DNA sample was taken for a law enforce-

ment purpose—Luzaich admitted in court that she wanted the

sample for use in solving “cold cases”—nor is there any ques-

tion that there would have been ample opportunity to obtain

a warrant. Friedman was in custody in Clark County Jail

when the sample was taken. There was no exigency or other

reason that Defendants could not have sought a warrant

8

Additionally, we note that, because the search took place in 2003, nei-

ther Samson, Kincade, nor Kriesler had yet been decided. Therefore

Defendants would have had no basis to conclude that their search was rea-

sonable absent the special needs exception or adherence to the Montana

Statute.

FRIEDMAN v. BOUCHER 7617

before taking the sample, other than the fact that they had no

probable cause on which to base their warrant request. The

lack of probable cause is not itself a justification for conduct-

ing a search without a warrant and probable cause.

[17] No reasonable police detective or prosecutor could

have believed that the Montana Statute authorized a forcible

taking of a DNA sample from a Nevada citizen for Nevada

law enforcement purposes. The reliance on an extraterritorial

statute was not reasonable. As the Supreme Court observed:

“This is so obviously the necessary result of the Constitution

that it has rarely been called in question.” N.Y. Life, 234 U.S.

at 161 (holding that a Missouri statute cannot operate in New

York). Nor was such a reliance reasonable based on a plain

reading of the Montana Statute, as we have discussed in

detail.

[18] Similarly, controlling precedent at the time of the

search disallowed warrantless, suspicionless, non-security

related searches of pre-trial detainees. Our case law precluded

the interpretation that the government could forcibly extract

DNA from all pre-trial detainees as a matter of routine, unre-

lated to facility security considerations. Kennedy, 901 F.2d at

714; Ward, 791 F.2d at 1333; Giles, 746 F.2d at 615. Our cir-

cuit precedent was consistent with the direction of the

Supreme Court that searches invading the human body could

not be justified “on the mere chance that desired evidence

might be obtained.” Schmerber, 384 U.S. at 769-70.

In short, no reasonable detective or prosecutor could have

thought that they could forcibly take a DNA sample from

Friedman without violating his Fourth Amendment rights.

Because Friedman’s rights were clearly established at the time

that Defendants took the sample, the Defendants are not enti-

tled to qualified immunity.

Boucher additionally argues that he is entitled to qualified

immunity because he was acting on Luzaich’s orders. How-

7618 FRIEDMAN v. BOUCHER

ever, when a police officer argues he is entitled to qualified

immunity because he relied on the advice of a prosecutor, it

does not render the officer’s conduct per se reasonable, as

Boucher suggests. See Stevens v. Rose, 298 F.3d 880, 884 (9th

Cir. 2002). Rather, it may be evidence of good faith. Id. How-

ever, if the facts show that the right the officer violated “was

clearly established and would be known to a reasonable offi-

cer in the circumstances,” then the officer is not entitled to

qualified immunity, regardless of the prosecutor’s advice. Id.

As we noted in Arnsberg v. United States, 757 F.2d 971, 981

(9th Cir. 1985), where a police officer is acquainted with the

controlling law and does not need the advice of counsel to

assess the legality of his actions, statements made by a prose-

cutor will not shield the officer from liability if he then vio-

lates the law.

Viewing the facts in the light most favorable to Friedman,

as we must at this stage, we conclude that a reasonable officer

in Boucher’s circumstances would have known that forcibly

taking a DNA sample from a pre-trial detainee without a

search warrant or other court authority would violate the

detainee’s clearly established Fourth Amendment rights.9

When a right is clearly established and a reasonable officer

should be familiar with that clearly established law, then the

officer cannot escape liability purely by reliance on a prosecu-

tor’s equally unconstitutional actions.

9

We recognize, however, that on close questions, reliance on the advice

of counsel may be reasonable and constitute evidence of good faith rele-

vant to the determination of qualified immunity. We further recognize that

our conclusions on qualified immunity in this context are solely based on

the facts as alleged and viewed in the light most favorable to the plaintiff.

Our reversal of the district court’s grant of qualified immunity does not

preclude Boucher from filing a summary judgment motion based on quali-

fied immunity once the facts are fully developed through discovery.

FRIEDMAN v. BOUCHER 7619

V

Shackling a detainee, chaining him to a bench, and forcibly

opening his jaw to extract a DNA sample without a warrant,

court order, reasonable suspicion, or concern about facility

security is a violation of the detainee’s clearly established

rights under the Fourth Amendment. Because the forcible tak-

ing of the DNA sample violated Friedman’s clearly estab-

lished constitutional rights, neither Boucher nor Luzaich is

entitled to qualified immunity. We need not, and do not, reach

any other issue urged by the parties on appeal.

REVERSED AND REMANDED.

CALLAHAN, Circuit Judge, dissenting:

I respectfully dissent from the reversal of the district

court’s grant of qualified immunity. The majority’s determi-

nation that Kenneth Friedman (“Friedman”) had a clearly

established right of privacy under the Fourth Amendment to

prevent state authorities from using a buccal swab to take a

DNA sample, fails to appreciate three lines of precedents that

undermine its conclusion. First, both the Supreme Court and

this court have held that incarcerated individuals have little,

if any, expectation of privacy under the Fourth Amendment.

Second, we have also held that a person legitimately in state

custody has almost no right against disclosing his or her iden-

tity. Third, we have held that governments have compelling

interests in establishing the identity of incarcerated repeat sex

offenders. Here, Friedman, a convicted sex offender, was a

pre-trial detainee facing charges of indecent exposure and

open and gross lewd conduct when the state officials took a

buccal swap from the inside of his mouth. In the parlance of

the majority’s opinion, I would hold that this minimally inva-

sive search was “reasonable.”

7620 FRIEDMAN v. BOUCHER

Furthermore, even if these lines of precedent did not com-

pel the conclusion that the search was reasonable, they raise

substantial questions as to Friedman’s right of privacy in this

situation. Pursuant to Saucier v. Katz, 533 U.S. 194, 201

(2001), an officer is entitled to qualified immunity when the

violation was not clearly established. Here, the very fact that

the district court and I disagree with the majority on whether

the search was reasonable, shows that Friedman’s right was

not clearly established, and accordingly, the defendants are

entitled to qualified immunity.1

I.

Friedman is a violent sex offender who has spent a signifi-

cant portion of his life in prison having been convicted of sev-

eral rapes in Ohio and Montana. Friedman’s journey through

the criminal justice system began in Ohio where he was con-

victed in 1975 of felony rape and felony aggravated burglary

and sentenced to a term of four to twenty-five years. After

serving several years in prison, he moved to Montana and

after being arrested and charged in 1980 with a variety of fel-

ony offenses pled guilty to two counts of felony sexual inter-

course without consent, one count of felony aggravated

assault, and three counts of misdemeanor theft. Although

Friedman was originally sentenced to serve forty years in

prison, twenty of those years were later suspended, and he

was designated a “dangerous offender” for purposes of parole

eligibility based on the court’s finding that he presented a

danger to the public.

After completing his Montana prison sentence, Friedman

moved to Las Vegas, Nevada in 2001. The State of Montana’s

Department of Corrections sent a letter to Friedman’s Nevada

residence notifying him that as a designated sex offender he

1

I do not take issue with the majority’s conclusion that Nevada authori-

ties could not rely on Montana Code Annotated section 44-6-103 as statu-

tory authority to collect a DNA sample from Friedman.

FRIEDMAN v. BOUCHER 7621

was required to submit a DNA sample pursuant to Montana

Code Annotated section 44-6-103(1), and that he should con-

tact a sergeant in the Clark County Sheriff’s Department in

Nevada to schedule an appointment to provide a DNA sam-

ple. Friedman never complied.

In August 2002, Las Vegas police officers detained and

questioned Friedman for stalking an individual at a health

club and making a threatening telephone call. They requested

that Friedman provide a DNA sample, which he refused.

Friedman asserts that over the course of the next five months

he was searched or arrested at least a half dozen times by

police officers. On February 10, 2003, Friedman was arrested

and charged with indecent exposure and open and gross lewd

conduct. He was then incarcerated in the Clark County Jail.

Friedman claims that upon his arrest, Las Vegas Metropolitan

Police Department Detective Dolphus Boucher demanded a

DNA sample from him. Friedman refused and no action was

taken. In March 2003, while still a prisoner in the Clark

County Jail awaiting trial on his pending charges, Friedman

was taken to Detective Boucher who once again demanded a

DNA sample. After Friedman refused, Detective Boucher

allegedly told him that he was authorized by Clark County

Deputy District Attorney Elissa Luzaich to take the DNA

sample by force. Acting under this authorization, Detective

Boucher forcibly took a buccal swab of DNA from the inside

of Friedman’s mouth without his consent.

II.

The Fourth Amendment of the United States Constitution

provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. CONST.

amend. IV. The Fourth Amendment is not triggered unless the

7622 FRIEDMAN v. BOUCHER

state conducts a search or seizure in an area “in which there

is a ‘constitutionally protected reasonable expectation of pri-

vacy.’ ” United States v. Van Poyck, 77 F.3d 285, 290 (9th

Cir. 1996) (quoting New York v. Class, 475 U.S. 106, 112

(1986) (citing Katz v. United States, 389 U.S. 347, 360 (1967)

(Harlan, J., concurring))). The modern test for determining

whether there is a “constitutionally protected reasonable

expectation of privacy” is whether the search or seizure by the

government violates a subjective expectation of privacy that

society objectively recognizes as reasonable.2 Id. We have

previously recognized that the “[n]on-consensual extraction of

blood implicates Fourth Amendment privacy rights.” Rise v.

Oregon, 59 F.3d 1556, 1558-59 (9th Cir. 1995) (citations

omitted). The non-consensual use of a buccal swab, although

significantly less intrusive than a blood sample, still impli-

cates the Fourth Amendment.

The Fourth Amendment, however, does not proscribe all

searches and seizures, but only those that are unreasonable.

Virginia v. Moore, S. Ct. 1598, 1602 (2008). In order to

assess whether a search is reasonable absent individualized

suspicion, we apply the “general Fourth Amendment

approach” and examine the totality of the circumstances in

objective terms “ ‘by assessing, on the one hand, the degree

to which [the search] intrudes upon an individual’s privacy

and, on the other, the degree to which it is needed for the pro-

motion of legitimate governmental interests.’ ” Samson v.

California, 547 U.S. 843, 848 (2006) (quoting United States

v. Knights, 534 U.S. 112, 118-19 (2001)); see also Ohio v.

Robinette, 519 U.S. 33, 39 (1996) (“Reasonableness . . . is

2

For example, the Supreme Court has held that an individual does not

have a reasonable expectation of privacy in attributes exposed to the pub-

lic including one’s voice, United States v. Dionisio, 410 U.S. 1, 14 (1973);

handwriting, United States v. Mara, 410 U.S. 19, 21 (1973); financial

records filed with a bank, United States v. Miller, 425 U.S. 435, 436-37

(1976); and trash left on the curbside, California v. Greenwood, 486 U.S.

35, 37 (1988).

FRIEDMAN v. BOUCHER 7623

measured in objective terms by examining the totality of the

circumstances.”).

A. Expectation of Privacy

Fourth Amendment rights for inmates — whether they are

convicted or pretrial detainees — fall on the lowest end of the

expectation of privacy spectrum. Although we have previ-

ously recognized that prisoners do not leave all of their Fourth

Amendment privacy rights at the jailhouse doors, see Van

Poyck, 77 F.3d at 291 (prisoners’ privacy rights are “severely

curtailed”) (citations omitted), once the doors close, most pri-

vacy rights are left on the jailhouse steps. The state’s use of

a buccal swab to collect a DNA sample implicates two sepa-

rate privacy interests: (1) an interest in bodily integrity impli-

cated by placing a swab in Friedman’s mouth, and (2) a

privacy interest in the identifying information contained in the

DNA. See United States v. Kriesel, 508 F.3d 941, 947-48 (9th

Cir. 2007); United States v. Kincade, 379 F.3d 813, 836-37

(9th Cir. 2004) (en banc) (plurality); Rise, 59 F.3d at 1559-60.

I examine each one separately.

1. The privacy interest in bodily integrity

Time and again, we have stated that the use of a blood test

to take a DNA sample from an individual under state supervi-

sion is a minimal intrusion of one’s bodily integrity under the

Fourth Amendment. See Kriesel, 508 F.3d at 948; Kincade,

379 F.3d at 836-37; Rise, 59 F.3d at 1560. In Kriesel, where

the federal government used a blood test to collect the DNA

sample from a supervised releasee, we noted that the Supreme

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 extracted is mini-

mal, and that for most people the procedure involves virtually

no risk, trauma, or pain.’ ” 508 F.3d at 948 (quoting Skinner

v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 625 (1989)).

7624 FRIEDMAN v. BOUCHER

Notably, in finding the intrusion in Kriesel to be minimal, we

stated “the additional privacy implications of a blood test col-

lecting DNA, as opposed to a cheek swab or other mecha-

nism, do not significantly alter our analysis.” Id. Moreover, in

Kincade, we recognized that individuals “in custody have

been lawfully subject to much more severe intrusions of their

corporeal privacy than a sterile blood draw,” like suspicion-

less body cavity searches. 379 F.3d at 837 (citing Bell v. Wolf-

ish, 441 U.S. 520, 558-60 & n.39 (1979) (upholding

suspicionless body cavity searches of pretrial detainees and

convicted prisoners)); see also Rise, 59 F.3d at 1560 (“That

the gathering of DNA information requires the drawing of

blood rather than inking and rolling a person’s fingertips does

not elevate the intrusion upon the plaintiffs’ Fourth Amend-

ment interests to a level beyond minimal.”).3 The state’s use

of a buccal swab to collect DNA cells from the inside of a

pretrial detainee’s mouth is undeniably far less intrusive than

drawing blood and a relatively minor intrusion upon Fried-

man’s expectation of bodily privacy.

2. The privacy interest in identifying information

While Friedman may have a minimal expectation of pri-

vacy when it comes to his bodily integrity as a result of the

use of a buccal swab, he has even less of an expectation when

it comes to a privacy interest in the identifying information

contained in the DNA. Of course, a law enforcement agent

cannot generally approach law-abiding citizens on the street

and forcibly take fingerprint evidence absent some type of

3

As Judge Easterbrook has observed, a DNA blood test is “no different

from use of a fingerprint; only the method of obtaining the information

differs, and for prisoners that is a distinction without importance.” Green

v. Berge, 354 F.3d 675, 680 (7th Cir. 2004) (Easterbrook, J., concurring);

see also Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir. 2005) (“In the

prison context, where inmates are routinely subject to medical procedures,

including blood draws, and where their expectation of bodily privacy,

while intact, is diminished, the intrusiveness of a blood draw is even fur-

ther minimized”).

FRIEDMAN v. BOUCHER 7625

individualized suspicion. See Rise, 59 F.3d at 1559. We have

stated, however, that “in the fingerprinting context, there

exists a constitutionally significant distinction between the

gathering of fingerprints from free persons to determine their

guilt of an unsolved criminal offense and the gathering of fin-

gerprints for identification purposes from persons within the

lawful custody of the state.” Id. at 1560. Once an individual

is lawfully arrested based upon probable cause, his identifica-

tion becomes a matter of legitimate state interest, and he can-

not claim privacy in it. See Kincade, 379 F.3d at 837; see also

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

Cir. 2004) (“Though, like fingerprinting, collection of a DNA

sample for purposes of identification implicates the Fourth

Amendment, persons incarcerated after conviction retain no

constitutional privacy interest against their correct identifica-

tion.”); Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992)

(“We have not been made aware of any case, however, estab-

lishing a per se Fourth Amendment requirement of probable

cause, or even a lesser degree of individualized suspicion,

when government officials conduct a limited search for the

purpose of ascertaining and recording the identity of a person

who is lawfully confined to prison.”).

We have applied this same reasoning in the context of

DNA identification.A “DNA profile . . . establishes only a

record of the defendant’s identity — otherwise personal infor-

mation” in which somebody lawfully arrested can claim no

right of privacy. Kincade, 379 F.3d at 837; see also Rise, 59

F.3d at 1559 (“The information derived from [a DNA] blood

sample is substantially the same as that derived from finger-

printing — an identifying marker unique to the individual

from whom the information is derived.”). In fact, we have

stated that “[t]hose who have suffered a lawful conviction

lose an interest in their identity to a degree well-recognized as

sufficient to entitle the government permanently to maintain

a verifiable record of their identity.”4 Kincade, 379 F.3d at

4

It also bears mentioning that Nevada’s DNA collection statute, Nev.

Rev. Stat. § 176.0913(6), makes it illegal to make any unauthorized dis-

closure of biological specimens taken pursuant to the collection statute.

7626 FRIEDMAN v. BOUCHER

837 n.32. Although Friedman had not been convicted of the

offense for which he was being held when the DNA sample

was collected, he was a repeat sex offender, which as noted

in the next section provided the government with an addi-

tional interest in establishing his identity.

B. Legitimate Governmental Interests

Friedman’s minimal expectation of privacy must be

weighed against the state’s compelling interests in collecting

a DNA sample from an incarcerated sex offender. Similar to

fingerprinting, we have recognized that the use of DNA as a

means of identification of individuals within the state’s cus-

tody is a significant governmental interest. Id. at 837; Rise, 59

F.3d at 1560. Other circuits agree. The Fourth Circuit has

observed:

It is a well recognized aspect of criminal conduct

that the perpetrator will take unusual steps to conceal

not only his conduct, but also his identity. Disguises

used while committing a crime may be supple-

mented or replaced by changed names, and even

changed physical features. Traditional methods of

identification by photographs, historical records, and

fingerprints often prove inadequate. The DNA, how-

ever, is claimed to be unique to each individual and

cannot, within current scientific knowledge, be

altered. 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 con-

tained in a DNA bank, or left at the scene of a crime

within samples of blood, skin, semen or hair folli-

cles. The governmental justification for this form of

identification, therefore, relies on no argument dif-

ferent in kind from that traditionally advanced for

taking fingerprints and photographs, but with addi-

FRIEDMAN v. BOUCHER 7627

tional force because of the potentially greater preci-

sion of DNA sampling and matching methods.

Jones, 962 F.2d at 307; see also United States v. Sczubelek,

402 F.3d 175, 185-86 (3d Cir. 2005) (quoting and adopting

language in Jones).

The fact that Friedman is a convicted sex offender provided

Nevada with additional reasons for seeking a DNA sample.

The state has a significant interest in monitoring sex offenders

and solving crimes. “Sex offenders are a serious threat in this

Nation.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4

(2003) (quoting McKune v. Lile, 536 U.S. 24, 32 (2002) (plu-

rality opinion)). “[T]he victims of sex assault are most often

juveniles,” and “[w]hen convicted sex offenders reenter soci-

ety, they are much more likely than any other type of offender

to be re-arrested for a new rape or sexual assault.” Id. (quot-

ing McKune, 536 U.S. at 32-33). DNA profiling also has a

deterrent effect that “fosters society’s enormous interest in

reducing recidivism.” Kincade, 379 F.3d at 838-39. In addi-

tion, we have stated that the collection of DNA for use in a

data bank “advances the overwhelming public interest in pros-

ecuting crimes accurately — DNA evidence can exculpate an

accused just as effectively as it can inculpate him.” Rise, 59

F.3d at 1561. In addition to solving past crimes, “DNA profil-

ing . . . helps bring closure to countless victims of crime who

long have languished in the knowledge that perpetrators

remain at large.” Kincade, 379 F.3d at 839.

For these reasons, I would find that our case law leads to

a conclusion that a lawfully incarcerated individual, particu-

larly a repeat sex offender like Friedman, does not have a

Fourth Amendment right to prevent state authorities from

using a buccal swab to take a DNA sample. I do not agree

with the majority’s suggestion that gathering DNA for a “law

enforcement databank” is not in itself sufficient to allow the

minimally intrusive invasion of a buccal swap of a person

legally in state custody. The majority also implies that there

7628 FRIEDMAN v. BOUCHER

were no security concerns that supported the forcible taking

of DNA from Friedman, a pre-trial detainee. The inherent

import of these assertions, however, is the implication —

which, as indicated, I think is correct under our case law —

that the defendants could forcibly take a DNA sample from

Friedman if he were a convicted prisoner or if there was a

security concern. Friedman, however, was being held in the

county jail and it is self-evident that the jailers’ concerns with

security extend to all inmates, both those that have been con-

victed and those that are awaiting trial. Moreover, despite

Deputy District Attorney Luzaich’s subsequent assertion that

she sought the DNA sample to investigate cold cases, a rea-

sonable officer in Detective Boucher’s position may well have

thought there was a security reason for taking a DNA sample.

The distinctions asserted by the majority suggests that

defendants would not have violated Friedman’s right to pri-

vacy if the DNA sample had been taken pursuant to security

reasons, but they did violate his rights because Attorney Luza-

ich subsequently voiced what the majority considers a less

compelling reason. This, however, begs the question of

whether Friedman had a reasonable expectation of privacy. If

Friedman, because he is a repeat sex offender and because he

was legally in custody, did not have a reasonable expectation

of privacy, taking a DNA sample did not violate the constitu-

tion, regardless of the weight of the state’s interest in doing

so.5

Accordingly, I conclude that the defendants did not violate

Friedman’s Fourth Amendment rights.

5

This does not mean that a state could arbitrarily take a DNA sample

by force. Rather, I do not think that the constitutionality of doing so turns

on which of a state’s valid interests is cited for taking a DNA sample from

an incarcerated repeat sex offender.

FRIEDMAN v. BOUCHER 7629

III.

We need not, however, determine whether the use of a buc-

cal swab to take a DNA sample from Friedman was as a mat-

ter of law and fact a violation of the Fourth Amendment. The

only issue before this court in this appeal is whether the

defendants are entitled to qualified immunity. As noted by the

majority, to determine whether a government employee is

entitled to qualified immunity, we use a two-part test. Saucier

v. Katz, 533 U.S. 194, 201 (2001). The initial question is

whether “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right?” Id. Even if this ques-

tion is answered in the affirmative, an employee is still enti-

tled to qualified immunity if the constitutional right was not

clearly established. Id. Recently, the Supreme Court indicated

that the two-prongs need not always be answered in order. In

Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), the Supreme

Court stated that “[t]he judges of the district courts and the

courts of appeals should be permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the cir-

cumstances in the particular case at hand.”

Even if one does not read our decisions in Kriesel, Kincade

and Rise as authorizing a state to take a DNA sample from an

incarcerated repeat sex offender for identification purposes,

the defendants are entitled to qualified immunity because the

law is not clearly established. To reject a defense of qualified

immunity, the Supreme Court has instructed that we must find

that “the contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987); see also Saucier, 533 U.S. at 201-02.

Several decisions by the Supreme Court over the past three

decades call into question whether inmates maintain any

expectation of privacy under the Fourth Amendment. In Bell

7630 FRIEDMAN v. BOUCHER

v. Wolfish, 441 U.S. 520, the Supreme Court assumed that

convicted prisoners and pretrial detainees “retain some Fourth

Amendment rights upon commitment to a corrections facili-

ty,” and held nevertheless that they lose a right of privacy

from unannounced searches of their cells and routine body

cavity searches. Id. at 558-60; see also Hudson v. Palmer, 468

U.S. 517, 526 (1984) (noting that “society is not prepared to

recognize as legitimate any subjective expectation of privacy

that a prisoner might have in his prison cell”).

More recently, the Supreme Court in Samson v. California,

547 U.S. 843, indicated in dicta that individuals legally in

custody may not have an expectation of privacy under the

Fourth Amendment.6 Applying a totality of the circumstances

analysis, the Court held that the Fourth Amendment does not

prohibit law enforcement from conducting a suspicionless

search of a parolee who, under California law, was “subject

to search or seizure by [law enforcement] at any time of the

day or night, with or without a search warrant and with or

without cause.” Id. at 846. Critical to the Court’s analysis was

its conclusion that parolees have “severely diminished expec-

tations of privacy by virtue of their status alone,” which must

yield to the substantial state interest of reducing recidivism.

Id. at 851-54. The majority defended its determination that

“parolees are more akin to prisoners than probationers”

against the dissent’s characterization that it was improperly

“equat[ing] parolees with prisoners for the purpose of con-

cluding that parolees, like prisoners, have no Fourth Amend-

ment rights.” Id. at 850 n.2 (citing id. at 861 (Stevens, J.,

dissenting) (explaining the majority’s logic that “[p]risoners

have no legitimate expectation of privacy; parolees are like

6

We also have recognized that the contours of whether a prisoner has

any Fourth Amendment rights are not clear. See Somers v. Thurman, 109

F.3d 614, 617-18 (9th Cir. 1997) (stating that the Supreme Court “may

have intended to strip the inmates of all Fourth Amendment privacy

rights”); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997) (“The

Supreme Court has not decided whether prison inmates retain rights cogni-

zable under the Fourth Amendment.”).

FRIEDMAN v. BOUCHER 7631

prisoners; therefore, parolees have no legitimate expectation

of privacy”)). The Supreme Court’s extension of case law

concerning prisoners to cover parolees certainly suggests that

case law concerning convicted prisoners applies to pre-trial

detainees.

In light of these Supreme Court decisions, and our recent

opinions, I think that a reasonable detective and prosecutor

could well have thought that forcibly taking a buccal swap of

Friedman’s inner check was justified.7 I am not aware of any

case that holds that a pre-trial detainee has a Fourth Amend-

ment right to prevent the state from using a buccal swab to

collect a DNA sample. As noted, circuit precedent recognizes

that individuals in the lawful custody of the state cannot claim

an expectation of privacy under the Fourth Amendment in

their identification. See Kincade, 379 F.3d at 837; Rise, 59

F.3d at 1559-60 (recognizing that even the “merely accused”

are subject to identification procedures). Moreover, the use of

a buccal swab is, at most, an extremely minor intrusion upon

a pretrial detainee’s expectation of privacy in his bodily integ-

rity, since he is subject to body cavity searches, strip searches,

and blood draws. See Kriesel, 508 F.3d at 948; Kincade, 379

F.3d at 836-37; Rise, 59 F.3d at 1560. Although the defen-

dants’ actions may not have been in compliance with applica-

ble state statutes governing the collection of DNA samples,

7

The majority’s observation that because the most recent relevant cases

were decided after the buccal swap was taken in 2003, the defendants

could not rely on those decisions to support their actions (Maj. Op. at

7616, n.8), is troubling for several reasons. First, it seems to assume that

cases such as Samson, Kincade, and Kriesel, eroded an inmate’s pre-

existing Fourth Amendment right against having a buccal swap taken.

Second, it suggests a focus on the intent of these particular defendants,

instead of a reasonable officer. See Saucier, 533 U.S. at 202 (“The rele-

vant, dispositive inquiry in determining whether a right is clearly estab-

lished is whether it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.”). Third, it would lead to

problematic result of imposing civil liability on an officer for violating a

constitutional right that the courts subsequently determined did not really

exist.

7632 FRIEDMAN v. BOUCHER

there is no clearly established law that compels a conclusion

that the defendants violated Friedman’s Fourth Amendment

rights.

Accordingly, although I would hold that Friedman has not

suffered a Fourth Amendment violation, at a minimum, I

would find that the defendants are entitled to qualified immu-

nity because there is no clearly established law holding other-

wise.

IV.

This is an appeal from a grant of qualified immunity. In

Pearson, the Supreme Court indicated that an appellate court

of appeals could affirm a grant of qualified immunity if either

of the two prongs of the Saucier test was not met. 129 S. Ct.

at 818. I would find, that an in-custody repeat sex offender,

like Friedman, does not have a reasonable expectation of pri-

vacy under the Fourth Amendment to prevent state authorities

from using a buccal swab to take a DNA sample. However,

even were the majority’s contrary position reasonable, the

grant of qualified immunity nonetheless should be affirmed

because the alleged constitutional violation defined by the

majority was not clearly established. Accordingly, I dissent

from the majority’s vacation of the district court’s grant of

qualified immunity.