Elizabeth Haskell v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH AIDA HASKELL; 

REGINALD ENTO; JEFFREY PATRICK

LYONS, JR.; AAKASH DESAI, on

behalf of themselves and others

similarly situated,

No. 10-15152

Plaintiffs-Appellants,

v.  D.C. No.

3:09-cv-04779-CRB

KAMALA D. HARRIS,* Attorney

OPINION

General of California; EVA

STEINBERGER, Assistant Bureau

Chief for DNA Programs,

California Department of Justice,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

July 13, 2010—San Francisco, California

Submission Withdrawn

June 2, 2011

Resubmitted

November 1, 2011

Filed February 23, 2012

*Kamala D. Harris is substituted for her predecessor, Edmund G.

Brown, as Attorney General of California, pursuant to Fed. R. App. P.

43(c)(2).

1949

1950 HASKELL v. HARRIS

Before: William A. Fletcher and Milan D. Smith, Jr.,

Circuit Judges, and James Dale Todd,

Senior District Judge.**

Opinion by Judge Milan D. Smith, Jr.;

Dissent by Judge William A. Fletcher

**The Honorable James Dale Todd, Senior District Judge for the U.S.

District Court for Western Tennessee, sitting by designation.

1952 HASKELL v. HARRIS

COUNSEL

Michael T. Risher (argued), American Civil Liberties Union

Foundation of Northern California, Inc., San Francisco, Cali-

HASKELL v. HARRIS 1953

fornia, and Peter C. Meier and Eric A. Long, Paul, Hastings,

Janofsky & Walker LLP, San Francisco, California, for the

plaintiffs-appellants.

Daniel J. Powell, Deputy Attorney General (argued), Kamala

D. Harris, Attorney General of California, James M. Humes,

Chief Deputy Attorney General, Jonathan K. Renner, Senior

Assistant Attorney General, Constance L. LeLouis, Supervis-

ing Deputy Attorney General, and Enid A. Camps, Deputy

Attorney General, San Francisco, California, for the

defendants-appellees.

Daniel J. Broderick, Federal Defender, David Porter, Assis-

tant Federal Defender, Rachelle Barbour, Research and Writ-

ing Attorney, Sacramento, California, and John T.

Philipsborn, San Francisco, California, for amici curiae Fed-

eral Defender of the Eastern and Southern Districts of Califor-

nia, California Attorneys for Criminal Justice, and the

National Association of Criminal Defense Lawyers.

Jonathan S. Franklin, Tillman J. Breckenridge, and Mark T.

Emery, Fulbright & Jaworski L.L.P., Washington, D.C., for

amicus curiae DNA Saves.

Anne Marie Schubert, Albert C. Locher, Jan Scully, and W.

Scott Thorpe, Sacramento, California, for amicus curiae Cali-

fornia District Attorneys Association.

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants Elizabeth Aida Haskell, Reginald

Ento, Jeffrey Patrick Lyons, Jr., and Aakash Desai (collec-

tively, Plaintiffs) appeal the district court’s denial of their

motion for a preliminary injunction to stop the enforcement of

1954 HASKELL v. HARRIS

the 2004 Amendment, infra, to California’s DNA and Foren-

sic Identification Data Base and Data Bank Act of 1998

(DNA Act), Cal. Penal Code § 296(a)(2)(C), which amend-

ment requires law enforcement officers to collect DNA sam-

ples from all adults arrested for felonies. They contend that

the 2004 Amendment violates their Fourth Amendment right

to be free of unreasonable searches and seizures.

We assess the constitutionality of the 2004 Amendment by

considering the “totality of the circumstances,” balancing the

arrestees’ privacy interests against the Government’s need for

the DNA samples. Law enforcement officials collect a DNA

sample from a buccal swab of the arrestee’s mouth, a de

minimis intrusion that occurs only after a law enforcement

officer determines there is probable cause to believe that the

individual committed a felony. Law enforcement officers ana-

lyze only enough DNA information to identify the individual,

making DNA collection substantially similar to fingerprint-

ing, which law enforcement officials have used for decades to

identify arrestees, without serious constitutional objection.

Moreover, state and federal statutes impose significant crimi-

nal and civil penalties on persons who misuse DNA informa-

tion. On the other side of the balance, DNA analysis is an

extraordinarily effective tool for law enforcement officials to

identify arrestees, solve past crimes, and exonerate innocent

suspects. After weighing these factors, we conclude that the

Government’s compelling interests far outweigh arrestees’

privacy concerns. Thus, we hold that the 2004 Amendment

does not violate the Fourth Amendment, and we affirm.

BACKGROUND

In 1998, the California legislature enacted the DNA Act,

Cal. Stat. Ch. 696, § 2, which requires DNA testing of indi-

viduals convicted of certain offenses. The DNA Act is

intended to aid local, state, and federal law enforcement agen-

cies “in the expeditious and accurate detection and prosecu-

tion of individuals responsible for sex offenses and other

HASKELL v. HARRIS 1955

crimes, the exclusion of suspects who are being investigated

for these crimes, and the identification of missing and uniden-

tified persons, particularly abducted children.” Cal. Penal

Code § 295(c).

Law enforcement use of California’s DNA database has

proven remarkably effective. Since 1998, California law

enforcement officials have identified more than 10,000

offenders by using their DNA. To build on the positive results

achieved through the implementation of the DNA Act, in

2004, California voters approved Proposition 69, the DNA

Fingerprint, Unsolved Crime and Innocence Protection Act

(the 2004 Amendment), which expanded the DNA Act’s test-

ing requirement to include “any adult person arrested or

charged with any felony offense . . . immediately following

arrest, or during the booking . . . process or as soon as admin-

istratively practicable after arrest, but, in any case, prior to

release on bail or pending trial or any physical release from

confinement or custody.” Cal. Penal Code §§ 296(a)(2)(C);

296.1(a)(1)(A). Proposition 69 cited the “critical and urgent

need to provide law enforcement officers and agencies with

the latest scientific technology available for accurately and

expeditiously identifying, apprehending, arresting, and con-

victing criminal offenders and exonerating persons wrongly

suspected or accused of crime.”

The 2004 Amendment became effective on January 1,

2009. Officers usually collect the DNA sample from a buccal

swab that is gently swept along an arrestee’s inner cheek. An

arrestee’s failure to cooperate with the collection is a misde-

meanor. Cal. Penal Code § 298.1(a).

Once officers collect the DNA sample, it is sent to a State

laboratory, which creates a DNA profile of the arrestee. The

laboratory creates a profile only for identification purposes by

analyzing thirteen genetic markers known as “junk DNA,”

which are not linked to any known genetic traits. The labora-

tory uses “short tandem repeat” technology (STR), which is

1956 HASKELL v. HARRIS

the repeated sequence of base pairs at each of the thirteen

markers. The variation in the number of sequences at each

marker creates a unique profile that law enforcement uses for

identification. “One person might have two copies of the first

marker that are four and eight repeats long, copies of the sec-

ond that are eleven and twenty-three copies long, copies of

the third that are three and ten copies long, and so on through

all thirteen markers.” United States v. Mitchell, 652 F.3d

387,401 (3d Cir. 2011) (en banc) (quoting Henry T. Greely et

al., Family Ties: The Use of DNA Offender Databases to

Catch Offenders’ Kin, 34 J.L. Med. & Ethics 248, 250

(2006)). The odds that two people share identical sequences

on all thirteen markers are “one in several hundred billion.”

Id.

The State laboratory then uploads the DNA profile into the

Combined DNA Index System (CODIS), a nationwide collec-

tion of federal, state, and local DNA profiles. “Beyond the

STR-generated DNA profile, CODIS records contain only an

identifier for the agency that provided the DNA sample, a

specimen identification number, and the name of the person-

nel associated with the analysis.” United States v. Kincade,

379 F.3d 813, 819 n.8 (9th Cir. 2004) (en banc) (citing H.R.

Rep. No. 106-900(I), at *27 (2000)).

When an arrestee’s DNA profile is uploaded into CODIS,

it is compared to the DNA samples collected from crime

scenes. If the database reveals a “hit,” the offender DNA sam-

ple is tested again for confirmation. If the test confirms a

match, CODIS informs the laboratory that submitted the

crime scene sample of the identity of the matching DNA pro-

file, and the laboratory sends that information to law enforce-

ment.

Only law enforcement officials are permitted to access a

DNA profile, and they may only use the DNA to identify

criminal suspects. Cal. Penal Code §§ 295.1(a); 299.5(f).

They may not use the sample to reveal other traits, such as

HASKELL v. HARRIS 1957

medical conditions. Unauthorized access or disclosure of

DNA information is punishable under State law by up to a

year in prison and a fine of up to $50,000. Cal. Penal Code

§ 299.5(i). Federal law imposes similar penalties for unautho-

rized use of, or access to, CODIS. See 42 U.S.C. § 14133(c),

14135e(c).

An arrestee who is not ultimately convicted may ask either

the California Department of Justice or the trial court to order

the sample destroyed and the DNA profile expunged. Cal.

Penal Code § 299. The individual must await the expiration of

the statute of limitations for the crime(s) for which he or she

was charged before requesting expungement, unless prosecu-

tors dismiss the charges sooner. The court may order the

expungement 180 days after the arrestee’s request. Id.

After the police determined that probable cause existed in

each case, Plaintiffs were arrested for felonies in California

and provided DNA samples. However, they were never con-

victed of the felonies for which they were charged. On Octo-

ber 7, 2009, Plaintiffs filed a class-action complaint against

the State officials who administer the DNA collection system.

The class consists of “persons who are required to provide a

DNA sample pursuant to § 296(a)(2)(C) solely as a result of

being arrested for a felony.” Their lawsuit, filed under 42

U.S.C. § 1983, alleges that the 2004 Amendment violates

their Fourth Amendment rights to be free from unreasonable

searches and seizures, and their Fourteenth Amendment due

process rights.1 They then sought a preliminary injunction to

enjoin California from collecting DNA samples from people

who were arrested, but not convicted.

The district court provisionally certified the class. On

December 23, 2009, the district court denied the preliminary

injunction, concluding that, as a matter of law, Plaintiffs had

1

In their appellate filings, Plaintiffs have merged their Fourteenth

Amendment claim into their Fourth Amendment claim.

1958 HASKELL v. HARRIS

not demonstrated a likelihood of success on the merits

because California’s DNA collection requirement does not

violate the Fourth Amendment. The district court also con-

cluded that Plaintiffs did not allege irreparable harm, the bal-

ance of equities tipped in favor of the State, and injunctive

relief likely would not be in the public interest. Plaintiffs

timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1292(a)(1). We

review the district court’s factual determinations for clear

error. Klein v. City of San Clemente, 584 F.3d 1196, 1200 (9th

Cir. 2009). We review the district court’s application of the

preliminary injunction balancing test for abuse of discretion

and the legal conclusions de novo. Stormans, Inc. v. Selecky,

586 F.3d 1109, 1119 (9th Cir. 2009). “To determine whether

the district court abused its discretion, the reviewing court

must consider whether the decision was based on a consider-

ation of the relevant factors and whether there has been a

clear error of judgment.” DISH Network Corp. v. FCC, 653

F.3d 771, 776 (9th Cir. 2011) (citation and internal quotation

marks omitted).

DISCUSSION

A federal court may grant a preliminary injunction only if

the plaintiff establishes four elements: (1) likelihood of suc-

cess on the merits; (2) likelihood of suffering irreparable harm

absent a preliminary injunction; (3) the balance of equities

tips in the plaintiff’s favor; and (4) injunctive relief is in the

public interest. Winter v. Natural Res. Def. Council, Inc., 555

U.S. 7, 20 (2008). If we agree with the district court’s conclu-

sion that Plaintiffs have not satisfied their burden of establish-

ing the first element, “we need not consider the remaining

three.” DISH Network Corp., 653 F.3d at 777; see also Adver-

tise.com, Inc. v. AOL Adver., Inc., 616 F.3d 974, 982 (9th Cir.

HASKELL v. HARRIS 1959

2010); Doe v. Reed, 586 F.3d 671, 681 n.14 (9th Cir. 2009),

aff’d 130 S. Ct. 2811 (2010).

The likelihood of Plaintiffs’ success on the merits hinges

on whether California’s mandatory DNA collection require-

ment under the 2004 Amendment, as applied to felony

arrestees who have not been convicted, violates the Fourth

Amendment. Plaintiffs challenge the 2004 Amendment, Cali-

fornia Penal Code § 296(a)(2)(C), both facially and as applied

to them. To successfully mount a facial challenge, the Plain-

tiffs “must establish that no set of circumstances exists under

which the [2004 Amendment] would be valid,” United States

v. Salerno, 481 U.S. 739, 745 (1987), while their as-applied

challenge only requires a demonstration that the 2004 Amend-

ment is unconstitutional as applied to the Plaintiffs. Thus, if

we find that the 2004 Amendment is constitutional as applied

to the provisionally certified class, the facial challenge also

fails.

I. Analytical framework

[1] The Fourth Amendment protects “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV (emphasis added).

[2] It is undisputed that a compelled DNA extraction is a

“search” for Fourth Amendment purposes. See, e.g., Kincade,

379 F.3d at 821 n.15 (“The compulsory extraction of blood

for DNA profiling unquestionably implicates the right to per-

sonal security embodied in the Fourth Amendment, and thus

constitutes a ‘search’ within the meaning of the Constitu-

tion.”). The question before us is whether California’s DNA

collection requirement under the 2004 Amendment is an

unreasonable search. In line with the Constitution’s plain text,

“[t]he touchstone of our analysis under the Fourth Amend-

ment is always ‘the reasonableness in all the circumstances of

the particular governmental invasion of a citizen’s personal

1960 HASKELL v. HARRIS

security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-09

(1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).

We apply the “totality of the circumstances” balancing test

to determine whether a warrantless search is reasonable. See

Samson v. California, 547 U.S. 843, 848 (2006) (applying

totality of the circumstances test to determine whether a man-

datory search as a condition of parole violates the Fourth

Amendment); United States v. Kriesel, 508 F.3d 941, 946-47

(9th Cir. 2007) (applying totality of the circumstances test to

mandatory DNA collection from convicted federal felons).

Under the totality of the circumstances test, “[w]hether a

search is reasonable is determined by assessing, on the one

hand, the degree to which it intrudes upon an individual’s pri-

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

promotion of legitimate governmental interests.” Samson, 547

U.S. at 848 (citation and internal quotation marks omitted).

Plaintiffs contend that we may only consider the totality of

the circumstances if we first find that the 2004 Amendment

satisfies a “special needs” exception to the Fourth Amend-

ment. In Kriesel, we explicitly rejected the special needs test

when we applied the totality of the circumstances analysis to

the mandatory DNA collection requirement without first

determining whether a special need existed. 508 F.3d at 946.

Although Kriesel involved DNA collection from convicted

felons, Plaintiffs cite no precedent that would require the

“special needs” test for DNA collection from arrestees to

assess the constitutionality of a search conducted for law

enforcement purposes. Interestingly, the Supreme Court even

applied the totality of the circumstances test to determine

whether strip searches of pretrial detainees were constitu-

tional. Bell v. Wolfish, 441 U.S. 520, 559-60 (1979); see also

Mitchell, 652 F.3d at 403 (selecting the totality of the circum-

stances analysis over the special needs test to assess the con-

stitutionality of a federal requirement that pretrial detainees

provide DNA samples as a condition of release). Accordingly,

HASKELL v. HARRIS 1961

we apply only the totality of the circumstances analysis to

Plaintiffs’ challenge to the 2004 Amendment.

II. Past cases involving compelled DNA testing

[3] The constitutionality of California’s requirement that

all felony arrestees provide DNA samples is a question of first

impression for us.2 However, in four cases, we have applied

the totality of the circumstances analysis and upheld manda-

tory DNA collection, from persons who have been convicted

of felonies.

In Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), we upheld

a state law that required certain convicted felons to provide

DNA blood samples. Applying a totality of the circumstances

analysis, we concluded that the statute did not violate the

2

Two recent opinions addressed the constitutionality of such require-

ments, but we are not bound by either.

In United States v. Pool, 621 F.3d 1213 (9th Cir. 2010), a three-judge

panel of our court upheld a federal statute that required DNA collection

as a condition of pre-trial release. The case was called en banc, thereby

vacating the panel opinion. On September 19, 2011, before an en banc

panel heard argument, the appeal was dismissed as moot because the

defendant had pleaded guilty. Because the panel opinion was vacated, we

do not rely on Pool’s reasoning.

The California Court of Appeal, in People v. Buza, 197 Cal. App. 4th

1424 (Ct. App. 2011), held that California’s DNA Act’s requirement for

felony arrestees to provide their DNA under the 2004 Amendment violates

the United States Constitution. We are not bound by Buza for three rea-

sons. First, federal courts are not required to follow state courts’ interpre-

tations of federal law. See Congoleum Corp. v. DLW Aktiengesellschaft,

729 F.2d 1240, 1242 (9th Cir. 1984). Second, Buza relies primarily on

Ninth Circuit dissents, not the controlling, majority opinions. Finally, the

California Supreme Court granted review of Buza on October 19, 2011,

thereby automatically depublishing Buza. Cal. Rules of Court 8.1105(e);

8.1115. “Although we are not precluded from considering unpublished

state court opinions, we are not bound by them either.” Nunez by Nunez

v. City of San Diego, 114 F.3d 935, 943 n.4 (9th Cir. 1997) (internal cita-

tion omitted).

1962 HASKELL v. HARRIS

Fourth Amendment because of “the reduced expectations of

privacy held by persons convicted of one of the felonies to

which [the statute] applies, the blood extractions’ relatively

minimal intrusion into these persons’ privacy interests, the

public’s incontestable interest in preventing recidivism and

identifying and prosecuting murderers and sexual offenders,

and the likelihood that a DNA data bank will advance this

interest[.]” Id. at 1562.

In Kincade, we upheld a requirement that people convicted

of certain serious federal felonies provide DNA blood sam-

ples. 379 F.3d at 840. The plurality of the en banc court

applied the totality of the circumstances analysis and con-

cluded that the compelled DNA collection “can only be

described as minimally invasive — both in terms of the bodily

intrusion it occasions, and the information it lawfully pro-

duces.” Id. at 838. On the other side of the balancing test, the

plurality concluded that the DNA collection helps ensure that

a parolee complies with requirements of release, reduces

recidivism, and “helps bring closure to countless victims of

crime who long have languished in the knowledge that perpe-

trators remain at large.” Id. at 839.

Similarly, in Kriesel, we upheld an amendment to the fed-

eral DNA collection act, which requires DNA collection from

all persons convicted of federal felonies. We held that, under

the totality of the circumstances, the statute is constitutional

“because the government’s significant interests in identifying

supervised releasees, preventing recidivism, and solving past

crimes outweigh the diminished privacy interests that may be

advanced by a convicted felon currently serving a term of

supervised release.” 508 F.3d at 950.

Most recently, in Hamilton v. Brown, 630 F.3d 889 (9th

Cir. 2011), we held that California’s requirement that prison

inmates must provide blood samples for DNA identification

comports with the Fourth Amendment.

HASKELL v. HARRIS 1963

Rise, Kincade, Kriesel, and Hamilton involved DNA

searches of people who have been convicted of felonies. We

acknowledge that convicted persons have lesser privacy

expectations than persons who have only been arrested for

felonies. See United States v. Scott, 450 F.3d 863, 873 (9th

Cir. 2006) (holding that a defendant “out on his own recogni-

zance before trial” has privacy interests “far greater than a

probationer’s.”). However, the general principles outlined in

these cases are instructive for our totality of the circumstances

analysis.

III. Friedman v. Boucher

Before applying the totality of the circumstances analysis

to the 2004 Amendment, we must address Plaintiffs’ claim

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

requires us to find, as a matter of law, that the 2004 Amend-

ment is unconstitutional.

In Friedman, plaintiff Kenneth Friedman pled guilty in

Montana to sexual intercourse without consent, in 1980. Id. at

851. He was released from prison in 2001, at which point he

was not on parole or otherwise under state supervision. Mon-

tana law required Friedman to submit a DNA sample, but he

never did. In March 2003, after he had moved to Las Vegas,

Friedman was incarcerated as a pre-trial detainee on unrelated

charges, and, at the direction of a deputy district attorney, a

police detective forced Friedman to provide DNA via a buccal

swab. Id. No Nevada statute authorized the collection of

DNA, nor were there any limits on the use of the information

derived from Friedman’s DNA. Friedman sued under 42

U.S.C. § 1983, alleging a violation of his Fourth Amendment

rights. The district court found that the defendants had quali-

fied immunity and dismissed the case. Id.

We found that the Montana statute did not provide Nevada

police with authority to collect Friedman’s DNA sample, nor

did the search constitute a “special need” that is exempt from

1964 HASKELL v. HARRIS

the Warrant Clause. Id. at 853-54. Although we did not

explicitly apply the totality of the circumstances analysis, we

briefly assessed the “reasonableness” of the Nevada officer’s

actions and distinguished the case from Kincade and Kriesel

because Friedman was not on parole or otherwise under

police supervision. Id. at 857-58. Accordingly, we reversed

the district court, concluding:

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, reli-

ance on an extraterritorial statute, or on general

Fourth Amendment principles. The search and sei-

zure of Friedman’s DNA violated the Constitution.

Id. at 858.

Although Friedman contains very broad dicta that Plaintiffs

have construed as requiring us to find that all DNA collection

from felony arrestees is per se unconstitutional, its holding is

expressly limited to the unique set of facts in that case. See

Friedman, 580 F.3d at 851 (“Because the forcible taking of

the DNA sample under these circumstances violated Fried-

man’s clearly established Fourth Amendment rights, we

reverse.”) (emphasis added). Thus, Friedman requires us to

find the 2004 Amendment unconstitutional only if we con-

clude that the circumstances of that case are sufficiently simi-

lar to the facts here. We conclude that Friedman differs

significantly from this case for five reasons.

First, the DNA collection in Friedman was conducted at the

whim of one deputy district attorney, acting without any statu-

tory authority. Although the Las Vegas police attempted to

collect the DNA under the Montana statute, we held that they

were not allowed to do so because the Montana statute did not

apply extraterritorially. See Friedman, 580 F.3d at 854

(“Defendants were Nevada officials searching a Nevada citi-

HASKELL v. HARRIS 1965

zen in the state of Nevada for Nevada law enforcement pur-

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

Montana statute.”) In contrast, the DNA collected in Califor-

nia from the Plaintiffs was approved in a statewide ballot ref-

erendum, which is “a basic instrument of democratic

government[.]” Eastlake v. Forest City Enters, Inc., 426 U.S.

668, 679 (1976); see also Southern Alameda Spanish Speak-

ing Org. v. City of Union City, 424 F.2d 291, 294 (9th Cir.

1970) (describing the referendum as “an exercise by the vot-

ers of their traditional right through direct legislation to over-

ride the views of their elected representatives as to what

serves the public interest.”). Millions of California voters con-

sidered the reasonableness of collecting DNA from arrestees,

in stark contrast to the search in Friedman.

Second, the police in Friedman singled out one individual

for a search. In contrast, the California DNA Act is program-

matic and applies to all felony arrestees. California police

officers lack any discretion to choose which individuals are

subject to DNA collection. Because officers in California can-

not choose the subjects of DNA collection, there is far less

potential for abuse or arbitrary action. “An essential purpose

of a warrant requirement is to protect privacy interests by

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

sions are not the random or arbitrary acts of government

agents.” Skinner v. Ry Labor Executives’ Ass’n, 489 U.S. 602,

621-22 (1989). “[S]tandardized criteria . . . or [an] established

routine” can prevent a search from being “a ruse for a general

rummaging in order to discover incriminating evidence.”

Florida v. Wells, 495 U.S. 1, 4 (1990); see also United States

v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007) (“Courts have

acknowledged that the presence of such discretion affects the

balancing of interests[.]”).

Third, the detective “forced Friedman’s jaw open and

forcefully took a buccal swab from the inside of Friedman’s

mouth.” Friedman, 580 F.3d at 851. This use of force

weighed heavily in our reasonableness analysis. Id. at 856-57.

1966 HASKELL v. HARRIS

In contrast, California arrestees typically swipe the buccal

swab along their own mouths; thus law enforcement officials

do not usually use force. Although the 2004 Amendment

allows law enforcement officials to compel the taking of

DNA samples, a supervisor must first provide written

approval for the use of force, and the force must “be preceded

by efforts to secure the voluntary compliance with this sec-

tion.” Cal. Penal Code § 298.1(c)(1)(C).

Fourth, the California DNA Act imposes criminal penalties

on people who misuse DNA information, Cal. Penal Code

§ 299.5(i); Nevada had no such safeguards because no statute

authorized the DNA collection. Friedman’s DNA theoreti-

cally could have been accessed by anyone and used for any

purpose, not just identification. In Rise, the restrictions on

access to DNA information weighed in favor of finding the

statute reasonable. 59 F.3d at 1561.

Finally, the California DNA Act is clearly intended to

allow law enforcement officials to identify criminal suspects,

a purpose that we expressly approved in Rise. See 59 F.3d at

1560 (“[E]veryday ‘booking’ procedures routinely require

even the merely accused to provide fingerprint identification,

regardless of whether investigation of the crime involves fin-

gerprint evidence.”). It is unclear what purpose the DNA col-

lection in Friedman was intended to serve because it was not

authorized by any Nevada statute or regulation. In a recent en

banc opinion upholding a federal requirement for DNA col-

lection as a condition of pretrial release, the Third Circuit

declined to follow Friedman because it “did not consider the

identification purpose of DNA samples[.]” Mitchell, 652 F.3d

at 413 n.23. We agree with the Third Circuit’s reasoning on

this point.

Our dissenting colleague claims that Friedman “requires us

to hold that Proposition 69 violates the Fourth Amendment,”

yet he glosses over the significant differences we cite between

that case and this one. The search in Friedman raised far more

HASKELL v. HARRIS 1967

significant Fourth Amendment concerns than does the case

before us because there was no statutory authorization for the

search, authorities singled out one individual, and there were

no restrictions on the access to, or use of, the DNA informa-

tion. Accordingly, the “reasonableness” analysis of Friedman

is inapposite here, its holding does not bind us, and we pro-

ceed to apply a totality of the circumstances test to the spe-

cific facts of this case.

IV. Totality of the circumstances

In assessing the totality of the circumstances, we balance

the individual’s privacy interests against the Government’s

interests in prison administration and law enforcement. Sam-

son, 547 U.S. at 848.

A. Felony arrestees’ privacy interests

The 2004 Amendment does not provide the Government

carte blanche to take buccal swabs from anyone and every-

one. It applies only to persons arrested on suspicion of having

committed a felony. Before individuals can be required to

give a buccal swab DNA sample under the 2004 Amendment,

a law enforcement officer must determine that there is proba-

ble cause to suspect that person of having committed a felony.

Even critics of mandatory DNA sampling concede that a

felony arrestee has a significantly diminished expectation of

privacy. See Kincade, 379 F.3d at 864 (Reinhardt, J., dissent-

ing) (“Arrestees’ privacy interests, too, appear to be signifi-

cantly reduced.”). Upon arrest, individuals are often booked

and placed in a jail cell pending arraignment or bail, and at

that point they are typically subjected to numerous degrading

physical and emotional intrusions. They may be subjected to

visual body cavity searches, Bell, 441 U.S. at 558 & n.39

(upholding searches where male inmates “must lift [their]

genitals and bend over to spread [their] buttocks for visual

inspection” and “[t]he vaginal and anal cavities of female

1968 HASKELL v. HARRIS

inmates also are visually inspected”); Bull v. City & Cnty. of

San Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010) (en

banc) (same); be monitored by guards of the opposite sex

while they shower and use the toilet, Johnson v. Phelan, 69

F.3d 144, 145 (7th Cir.1995); be restrained and pepper-

sprayed, Garrett v. Athens-Clarke Cnty., Ga., 378 F. 3d 1274,

1278 (11th Cir. 2004); have their telephone access restricted,

Valdez v. Rosenbaum, 302 F.3d 1039, 1048-49 (9th Cir.

2002); occasionally be housed with violent detainees who

leave them “with facial injuries that require[ ] surgery, Sch-

oelch v. Mitchell, 625 F.3d 1041, 1043 (8th Cir. 2010); and

be “in lockdown for as much as 23½ hours a day, always

shackled in chains, even when taking a shower or making a

phone call, and rarely being allowed to see daylight and

breathe fresh air.” Jeff German, Conditions at jail ‘harsh’ but

court can’t change them, Las Vegas Sun (Oct. 28, 2008). The

dissent suggests, without any authority for his claim, that

security interests and other exigent circumstances allow these

privacy intrusions, but not DNA sampling. Just as such intru-

sive jail-related conditions could not lawfully be imposed on

ordinary citizens, neither does the 2004 Amendment impose

the taking of buccal DNA swabs from ordinary citizens.3

We evaluate Plaintiffs’ allegations that the 2004 Amend-

ment is unreasonable against this backdrop of diminished pri-

vacy rights. We evaluate two distinct claims of privacy

intrusion: the physical collection of the DNA, and the analysis

of the information contained in that sample.

3

Plaintiffs contend that, because approximately one-third of arrestees

are never convicted, the 2004 Amendment results in the Government’s

maintaining a database of DNA profiles of innocent citizens. This argu-

ment ignores the fact that an arrestee who is not convicted may ask the

trial court to expunge the DNA profile from the database. Cal. Penal Code

§ 299(b). This process effectively addresses Plaintiffs’ concerns that Cali-

fornia will build a database of DNA profiles of people who are ultimately

found innocent.

HASKELL v. HARRIS 1969

1. The physical intrusiveness of the search

[4] Nearly half a century ago, the Supreme Court upheld

as “reasonable” a hospital’s extraction of a blood sample,

which was done “[a]t the direction of a police officer” who

was investigating a person suspected of driving under the

influence. Schmerber v. California, 384 U.S. 757, 758, 771

(1966). See also Skinner, 489 U.S. at 616 (“[I]t is obvious that

this physical intrusion, penetrating beneath the skin, infringes

an expectation of privacy that society is prepared to recognize

as reasonable.”) . Like the Plaintiffs in this case, the suspect

in Schmerber had not yet been convicted of a crime.

[5] The typical modern DNA collection procedure—the

buccal swab—is far less invasive than the blood test approved

in Schmerber. In the buccal swab DNA sampling, a cotton

swab is briefly inserted into the person’s mouth; in the typical

blood extraction (such as the one addressed in Schmerber), a

needle must be inserted into a blood vessel for a perceptible

amount of time. The buccal swab cannot seriously be viewed

as an unacceptable violation of a person’s bodily integrity.4

See United States v. Amerson, 483 F.3d 73, 84 n.11 (2d Cir.

2007) (“[A] cheek swab can be taken in seconds without any

discomfort.”); Jules Epstein, “Genetic Surveillance” — The

Bogeyman Response to Familial DNA Investigations, 2009 U.

Ill. J.L. TECH & POL’Y 141, 152 (2009) (“The taking of bodily

material for DNA testing is perhaps the least intrusive of all

seizures — it involves no penetration of the skin, pain, or sub-

stantial inconvenience.”). Moreover, California law enforce-

ment officers typically allow arrestees to perform the buccal

swab collection on themselves, further minimizing the physi-

cal privacy intrusion.

4

As in Schmerber, the parties in this case are not among “the few who

on grounds of fear, concern for health, or religious scruple might prefer

some other means of testing. . . . We need not decide whether such wishes

would have to be respected.” 384 U.S. at 771.

1970 HASKELL v. HARRIS

[6] In short, the physical extraction of DNA using a buccal

swab collection technique is little more than a minor inconve-

nience to felony arrestees, who have diminished expectations

of privacy. Moreover, it is substantially less intrusive, both

physically and emotionally, than many of the other types of

approved intrusions that are routinely visited upon arrestees,

see supra at 1967-68.

2. The Government’s use and retention of DNA

information

Plaintiffs challenge not only the physical intrusion of the

buccal swab, but the collection and use of the information

contained in the DNA sample.

[7] Although Plaintiffs use the phrase “DNA profile” to

evoke images of an oppressive “Big Brother” cataloguing our

most intimate traits, the reality is far less troubling. A DNA

profile contains only thirteen “junk DNA” markers that are

not linked to any genetic or physical trait. They are used only

to identify the individual. See Cal. Penal Code § 295.1(a)

(“The Department of Justice shall perform DNA analysis . . .

pursuant to this chapter only for identification purposes.”);

Kincade, 379 F.3d at 837 (“[T]he DNA profile derived from

the defendant’s blood sample establishes only a record of the

defendant’s identity — otherwise personal information in

which the qualified offender can claim no right of privacy

once lawfully convicted of a qualifying offense (indeed, once

lawfully arrested and booked into state custody).”); Amerson,

483 F.3d at 85 (“[A]t least in the current state of scientific

knowledge, the DNA profile derived from the offender’s

blood sample establishes only a record of the offender’s iden-

tity.”).

[8] Given the minimal amount of information contained in

a DNA profile, we are persuaded that DNA, as collected and

used under the 2004 Amendment, is substantially indistin-

guishable from traditional fingerprinting as a means of identi-

HASKELL v. HARRIS 1971

fying arrestees and, incidentally, tying arrestees to criminal

investigations. See Rise, 59 F.3d at 1559 (“The information

derived from the blood sample is substantially the same as

that derived from fingerprinting - an identifying marker

unique to the individual from whom the information is

derived.”); Mitchell, 652 F.3d at 412 (“[B]ecause DNA pro-

files developed pursuant to the DNA Act function as ‘genetic

fingerprints’ used only for identification purposes, arrestees

and pretrial detainees have reduced privacy interests in the

information derived from a DNA sample.”).

Although there are some distinctions between DNA and

fingerprints, these distinctions do not implicate serious pri-

vacy concerns. These differences include, among others:

DNA identification is more robust and reliable than finger-

print identification, see Dist. Attorney’s Office for Third Judi-

cial Dist. v. Osborne, 129 S. Ct. 2308, 2316 (2009) (“Modern

DNA testing can provide powerful new evidence unlike any-

thing known before.”); DNA is more often left at crime

scenes than fingerprints, thus enhancing DNA’s investigative

efficacy; and, as emphasized by Plaintiffs, DNA contains a

much broader range of identifying information than finger-

prints and is more susceptible to misuse. Nevertheless, the rel-

ative reliability and greater availability of DNA do not affect

any cognizable privacy interests (as individuals do not have

a “privacy interest” per se in the efficiency of law enforce-

ment operations), and the wider potential usage of DNA data

(and accompanying potential for abuse) is carefully restricted

by the strict limitations established in the DNA Act.

[9] Fingerprinting has been consistently upheld as constitu-

tional. Hayes v. Florida, 470 U.S. 811, 813-18 (1985);

Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965)

(“Taking of fingerprints . . . is universally standard procedure,

and no violation of constitutional rights.”); United States v.

Iacullo, 226 F.2d 788, 793 (7th Cir. 1955) (“[Defendant’s]

constitutional rights were not violated when his fingerprints

were taken and at the trial used as a basis for comparison with

1972 HASKELL v. HARRIS

fingerprints found on newspapers used to wrap narcotics.”);

United States v. Kelly, 55 F.2d 67, 68-69 (2d Cir. 1932).

Indeed, at oral argument, Plaintiffs’ counsel conceded that

fingerprinting does not violate the Fourth Amendment. Given

the certain constitutionality of fingerprinting and the clear

analogy between fingerprinting and DNA identification under

the DNA Act, as amended, privacy concerns here are dimin-

ished substantially. We agree with the dissent’s concession

that “fingerprints and DNA are similar.” We also generally

have no quarrel with the dissent’s statement that the Supreme

Court has “held that fingerprints may not be taken unless

there is consent, a warrant, or probable cause.”5

The dissent’s key argument collapses, however, because he

completely ignores the fact that the California DNA Act

clearly requires that law enforcement officers may only com-

pel DNA collection upon a finding of probable cause that the

individual has committed a felony. Moreover, each of the four

cases on which the dissent relies for some of his remarkable

theories— Hayes; Davis v. Mississippi, 394 U.S. 721 (1969);

United States v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir.

2005); and United States v. Garcia-Beltran, 389 F.3d 864 (9th

Cir. 2004), involved the compelled taking of fingerprints of

people who had been arrested without probable cause.6 This

5

However, we disagree with our colleague’s dismissal as “dictum” of

the Supreme Court’s clear statement that “[t]here is thus support in our

cases for the view that the Fourth Amendment would permit seizures for

the purpose of fingerprinting, if there is reasonable suspicion that the sus-

pect has committed a criminal act, [and] if there is a reasonable basis for

believing that fingerprinting will establish or negate the suspect’s connec-

tion with that crime.” Hayes, 470 U.S. at 816-17 (1985).

6

See Hayes, 470 U.S. at 813-14 (“[T]here was no probable cause to

arrest, no consent to the journey to the police station, and no judicial

authorization for such a detention for fingerprinting purposes.”); Davis,

394 U.S. at 725 (“[T]he State conceded that the arrest on December 12

and the ensuing detention through December 14 were based on neither a

warrant nor probable cause”); Ortiz-Hernandez, 427 F.3d at 575 (“[W]e

cannot say that the district court clearly erred when it ruled that consider-

HASKELL v. HARRIS 1973

distinction completely undermines our dissenting colleague’s

novel interpretation of the Fourth Amendment, and his reli-

ance on the four cited cases. We agree that the California

DNA Act would be unconstitutional if it allowed police offi-

cers to collect DNA samples from random citizens on the

street without any probable cause to believe that they commit-

ted a crime. In reality, however, the police cannot collect

DNA without first determining that there is probable cause

that the individual committed a felony.

The other fatal flaw in the dissent’s novel construction of

the Fourth Amendment is his entirely unsupported assumption

that the information derived from compelled fingerprinting

and DNA collection may only be used in connection with the

crime for which probable cause was found. The dissent cites

absolutely no authority for this unprecedented and misguided

reading of the Fourth Amendment. Were he correct, our entire

criminal justice system would be upended because law

enforcement officers would be prevented from using basic

investigative tools. For example, under our dissenting col-

league’s theory, the police could never be allowed to match

crime scene fingerprints to databases of prints collected from

past arrestees.

Like the dissent, Plaintiffs rely on slippery-slope arguments

by challenging not only what California actually does with the

DNA samples, but what it could do with the information.

Their opposition rests on hypothetical scenarios in which the

Government uses the DNA sample to do more than merely

identify individuals. Plaintiffs suggest that the Government

could test the DNA for diseases such as cystic fibrosis and

ing the totality of evidence upon which Detective Anderson relied when

he placed Ortiz-Hernandez under formal arrest, the evidence was insuffi-

cient to establish probable cause.”); Garcia-Beltran, 389 F.3d at 865

(“[T]he government conceded that the police did not have probable cause

to arrest Garcia-Beltran”).

1974 HASKELL v. HARRIS

Alzheimer’s disease. This line of reasoning—framed in bleak

Orwellian terms by the California Court of Appeal in Buza,

197 Cal. App. 4th at 1443-44—ignores the clear statutory lim-

itations drawn by the Legislature, and the fact that there is no

evidence in the record of a single case of DNA misuse in Cali-

fornia. If we were addressing a legislative scheme in which

the Government could freely use a person’s DNA sample in

any manner and for any purpose, serious privacy interests

could be at stake. But we are not presented with an open-

ended legislative scheme in which citizens’ entire genomes

are placed on file with the Government. The DNA Act, as

amended by the 2004 Amendment, sharply limits the range of

permissible uses of the DNA information obtained and

imposes significant criminal penalties upon those who violate

such limitations. See Cal. Penal Code §§ 295.1, 299.5(f),

299.5(i). See, e.g., Weikert, 504 F.3d at 13 (“[T]he [federal]

DNA Act offers a substantial deterrent to such hypothetical

abuse by imposing a criminal penalty for misuse of DNA

samples.”).

Plaintiffs argue that California’s limits on access and use

are ineffective because California data is shared with law

enforcement agencies nationwide via CODIS. This argument

also fails because federal law imposes similar penalties for

unauthorized use of CODIS. See 42 U.S.C. § 14133(c),

14135e(c). Moreover, even if an unauthorized person were to

access California’s DNA database, the only information avail-

able would be junk DNA that identifies felony arrestees. And

if the junk DNA could reveal other traits, misuse of that infor-

mation would likewise be barred by federal law. For example,

the Genetic Information Nondiscrimination Act of 2008, Pub.

L. 110-233, 122 Stat. 881, prohibits health insurers and

employers from discriminating against people based on their

genetic information.

While it is hypothetically possible that, at some future time,

rogue Government employees may record and analyze more

extensive DNA information, see Kincade, 379 F.3d at 847

HASKELL v. HARRIS 1975

(Reinhardt, J., dissenting), or that the California Legislature

might expand the permissible scope and uses of the DNA

data, see id. at 845-46, we cannot legitimately weigh the con-

stitutionality of the current legal regime by arguing about

hypothetical and highly speculative actions that would unde-

niably violate the DNA Act, as amended by the 2004 Amend-

ment, as now in effect. “[O]ur job is limited to resolving the

constitutionality of the program before us, as it is designed

and as it has been implemented,” and we must “base decisions

not on dramatic Hollywood fantasies . . . but on concretely

particularized facts developed in the cauldron of the adversary

process and reduced to an accessible record.” Kincade, 379

F.3d at 838; see also Mitchell, 652 F.3d at 408 (“While we

acknowledge the seriousness of [defendant’s] concerns about

the possible misuse and future use of DNA samples, we con-

clude that these hypothetical possibilities are unsupported by

the record before us and thus do not have any substantial

weight in our totality of the circumstances analysis.”); Wei-

kert, 504 F.3d at 14 (noting absence of evidence in the record

showing misuse of DNA information stored in CODIS);

Amerson, 483 F.3d at 87 (same). If and when such changes

occur, future courts will be available to consider actual facts

and applications, and determine whether the law, as then con-

stituted, violates the Constitution.

[10] Setting aside Plaintiffs’ parade of horribles, Califor-

nia’s limited use of the DNA and the complete absence of any

evidence of abuse lead us to conclude that the collection of

information from “junk DNA” markers does not significantly

intrude upon felony arrestees’ privacy.

B. The Government’s interests in prison administration

and law enforcement

[11] The Government has four key interests we weigh on

the other side of the balance: identifying arrestees, solving

past crimes, preventing future crimes, and exonerating the

innocent.

1976 HASKELL v. HARRIS

1. Identification of arrestees

The amended DNA Act’s primary purpose is to identify

arrestees. See Cal. Penal Code § 295.1(a) (“The Department

of Justice shall perform DNA analysis . . . pursuant to this

chapter only for identification purposes”). This interest is

longstanding and unobjectionable. “[W]hen a suspect is

arrested upon probable cause, his identification becomes a

matter of legitimate state interest.” Jones v. Murray, 962 F.2d

302, 306 (4th Cir. 1992); see also Kriesel, 508 F.3d at 947

(“[T]racking . . . identity is the primary consequence of DNA

collection”).

“Identification” encompasses not merely a person’s name,

but also other crimes to which the individual is linked.

“Knowledge of identity may inform an officer that a suspect

is wanted for another offense, or has a record of violence or

mental disorder.” Hiibel v. Sixth Judicial Dist. Court of

Nevada, Humboldt Cnty., 542 U.S. 177, 186 (2004).

“Whether an arrestee is possibly implicated in other crimes is

critical to the determination of whether or not to order deten-

tion pending trial.” Mitchell, 652 F.3d at 414; see also

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1123

(2002) (broadly defining “identity” as “the condition of being

the same with something described, claimed, or asserted or of

possessing a character claimed”). The collection and use of

DNA for identification purposes is substantially identical to a

law enforcement officer obtaining an arrestee’s fingerprints to

determine whether he is implicated in another crime. See

Johnson v. Quander, 440 F.3d 489, 498 (D.C. Cir. 2006)

(“[T]he process of matching one piece of personal informa-

tion against government records does not implicate the Fourth

Amendment.”).

Plaintiffs contend that DNA profiling is unnecessary

because law enforcement officers already identify arrestees

using traditional fingerprinting. However, this argument

ignores the significant advantages of DNA profiling over fin-

HASKELL v. HARRIS 1977

gerprinting. Criminals can easily hide their fingerprints by

wearing gloves, but they cannot mask their DNA. See Mitch-

ell, 652 F.3d at 414. DNA testing provides “the capacity to

identify or to exclude individuals, quickly, accurately, and at

reasonable expense.” Amerson, 483 F.3d at 89. “[F]or pur-

poses of identifying a particular person as the defendant, a

DNA profile is arguably the most discrete, exclusive means

of personal identification possible.” People v. Robinson, 47

Cal. 4th 1104, 1134 (2010) (internal quotation marks omit-

ted). Nothing in the Constitution compels us to adopt a Ludd-

ite approach that would prevent the Government from using

this new and highly effective tool to replace (or supplement)

older ones.

Plaintiffs also assert that the Government takes “months” to

analyze DNA samples, the effect of which is to show that

DNA analysis does not advance the Government’s interest in

identifying arrestees. This argument exaggerates the facts: on

average, Government analysis of DNA takes 31 days, but

some samples have been processed in as few as five days.

Although only of persuasive value, Plaintiffs also ignore the

high likelihood that DNA technology will improve and sub-

stantially reduce processing times. Moreover, even at current

processing rates, DNA analysis can be highly effective. For

example, California’s Criminal Justice Realignment legisla-

tion, Assembly Bill 109, Stats. 2011, Ch. 15, which went into

effect on October 1, 2011, requires the transfer of many State

prisoners to county jails. To reduce overcrowding in county

jails, the statute allows prisoners to be released on their own

recognizance sixty days after their arrest, subject to a discre-

tionary review by the county. Collecting DNA at the time of

arrest will help the county determine whether a prisoner is

linked to other crimes before deciding whether to release the

prisoner. Because release cannot occur before sixty days after

arrest, the 31-day average processing time will give counties

adequate time to compare arrestees’ DNA with current and

past crime data before they are released.

1978 HASKELL v. HARRIS

2. Solving past crimes

DNA’s remarkable ability to accurately identify arrestees is

a sufficiently compelling interest to justify the 2004 Amend-

ment. However, the DNA database also serves other impor-

tant law enforcement purposes. By accurately identifying

arrestees, the DNA database also helps solve past crimes.

Solving crimes is a legitimate factor in our totality of the cir-

cumstances analysis because it “helps bring closure to count-

less victims of crime who long have languished in the

knowledge that perpetrators remain at large.” Kincade, 379

F.3d at 839; see also Mitchell, 652 F.3d at 414-415

(“Collecting DNA samples from arrestees can speed both the

investigation of the crime of arrest and the solution of any

past crime for which there is a match in CODIS.”).

Law enforcement officials already have used California’s

expanded database to solve numerous past crimes. As of

October 31, 2009 — ten months after Proposition 69 took

effect — felony arrestee DNA samples had aided California

police in 291 database hits. Matches from offender DNA pro-

files to crime scene profiles increased by approximately 50

percent between 2008 and 2009, when Proposition 69 took

effect.

For example, in March 2009, police collected Donald Car-

ter’s DNA when he was arrested in Sacramento for possession

of a controlled substance. Three months later, the police,

using the DNA database, linked his profile to DNA collected

from a 1989 murder of an 80-year-old woman. Similarly,

Rene Hernandez, who had no prior felony convictions, was

arrested on August 16, 2009 for felony assault in Santa Cruz

County, and his DNA was collected at that time. In October

2009, the DNA database matched his profile to DNA that was

collected from the victim of a February 2009 sexual assault

and robbery.

HASKELL v. HARRIS 1979

As California continues to add felony arrestees’ DNA to its

database, law enforcement officers will undoubtedly solve

even more past crimes.

3. Preventing future crimes

DNA analysis not only solves past crimes, but it helps

police prevent crimes from occurring in the future. By imple-

menting the 2004 Amendment, law enforcement officials will

have a catalogue of arrestees’ DNA, a tool that will undoubt-

edly help solve and prevent future crimes.

The mere existence of the DNA database creates a strong

deterrent effect. As discussed supra, it is much easier for a

criminal to cover his fingerprints than it is to prevent any

DNA from being left at a crime scene. A felony arrestee is

less likely to commit another crime in the future if he knows

that his DNA is catalogued in the State database. See, e.g.,

Kincade, 379 F.3d at 839 (stating that mandatory DNA pro-

files of convicted felons “fosters society’s enormous interest

in reducing recidivism”); Jones, 962 F.2d at 311 (“[T]he

Commonwealth’s interest in combatting and deterring felony

recidivism justifies the involuntary taking of the sample and

the creation of the DNA data bank as reasonable in the con-

text of the Fourth Amendment.”).

4. Exonerating innocent suspects

By helping identify the actual perpetrators of crimes, the

DNA database also allows law enforcement officers to elimi-

nate innocent persons from suspect lists. See Kincade, 379

F.3d at 839 n.38 (DNA fingerprinting “promptly clears thou-

sands of potential suspects”); United States v. Sczubelek, 402

F.3d 175, 185 (3d Cir. 2005) (“[T]he DNA samples will help

to exculpate individuals who are serving sentences of impris-

onment for crimes they did not commit and will help to elimi-

nate individuals from suspect lists when crimes occur.”).

1980 HASKELL v. HARRIS

DNA databases have proven remarkably effective in exon-

erating the innocent. According to the Innocence Project,

there have been 273 post-conviction DNA exonerations in the

United States since 1989. In 123 of the cases, the true sus-

pects or perpetrators were also identified.

The case of David Allen Jones is a powerful illustration of

the benefits of arrestee DNA sampling. Jones, a mentally dis-

abled janitor, was wrongly convicted in 1995 for three mur-

ders in the Los Angeles area. See Andrew Blankstein, et al.,

DNA Analysis Links Inmate to 12 Slayings, L.A. Times, Oct.

23, 2004, at A1. Jones spent nearly nine years in prison. He

was released in 2004, after DNA collected at two of the mur-

der scenes was linked to the DNA profile of Chester Dwayne

Turner. Although Turner had been arrested 20 times between

1987 and 2002, his DNA sample was not collected until after

he was convicted of rape in 2002. Id. Had the 2004 Amend-

ment been in effect in 1995, it is likely that Jones never would

have been imprisoned because police would have had access

to Turner’s DNA profile.

There are few greater injustices than the wrongful impris-

onment of an innocent person. The privacy intrusion caused

by a buccal swab of a felony arrestee is minor compared to

society’s compelling goal of ensuring that innocent people are

exonerated.

C. Balancing

[12] Given the arrestee’s diminished privacy interests; the

de minimis nature of the physical intrusion entailed in the tak-

ing of a buccal swab; the carefully circumscribed scope of the

DNA information being extracted; the stringent limits on the

manner in which that information may be used; and the well-

established law enforcement interest in obtaining arrestees’

identifying information, and further, to deter future criminal

acts and to exculpate innocent arrestees—the balance of inter-

HASKELL v. HARRIS 1981

ests tilts strongly in favor of upholding the constitutionality of

the 2004 Amendment.

We emphasize that our decision deals solely with DNA

extraction, processing, and analysis as it presently exists, and

is enforced. We acknowledge that future developments in the

law could alter the constitutionality of the DNA Act, as

amended. See Kincade, 379 F.3d at 842 n.3 (Gould, J., con-

curring in the judgment). But we cannot test the amended

DNA Act’s current legality in light of uncertain future

amendments to the law, which themselves would likely vio-

late the DNA Act, as amended by the 2004 Amendment.

CONCLUSION

[13] Because the 2004 Amendment does not violate the

Fourth Amendment as applied to the Plaintiffs, the facial chal-

lenge also fails because Plaintiffs cannot “establish that no set

of circumstances exists under which the Act would be valid.”

Salerno, 481 U.S. at 745. Accordingly, we hold that the dis-

trict court did not err in determining that Plaintiffs did not

establish a likelihood of success on the merits, and we affirm

its denial of the preliminary injunction.

AFFIRMED.

W. FLETCHER, Circuit Judge, dissenting:

I respectfully dissent.

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

held that the taking of a DNA sample without a warrant, and

without suspicion of a crime that the DNA sample would help

solve, violated the plaintiff’s clearly established Fourth

Amendment rights. Proposition 69 requires that DNA samples

be taken from all felony arrestees, with or without their con-

1982 HASKELL v. HARRIS

sent, upon their arrest. There is no need for a warrant, and

there is no need for suspicion of a crime that the DNA sample

would help solve. Our decision in Friedman requires us to

hold that Proposition 69 violates the Fourth Amendment.

Even if Friedman were not on the books, I would conclude

that Proposition 69 is unconstitutional. My reasoning is

straightforward. Fingerprints may be taken from an arrestee in

order to identify him—that is, to determine whether he is who

he claims to be. But fingerprints may not be taken from an

arrestee solely for an investigative purpose, absent a warrant

or reasonable suspicion that the fingerprints would help solve

the crime for which he was taken into custody. Hayes v. Flor-

ida, 470 U.S. 811, 814 -15 (1985); Davis v. Mississippi, 394

U.S. 721, 727 -28 (1969); United States v. Ortiz-Hernandez,

427 F.3d 567, 576 (9th Cir. 2005); United States v. Gar-

cia-Beltran, 389 F.3d 864, 865 (9th Cir. 2004). DNA samples

are not taken from felony arrestees under Proposition 69 in

order to identify them. Rather, they are taken solely for an

investigative purpose, without a warrant or reasonable suspi-

cion. The taking of DNA samples from arrestees solely for

that purpose is invalid under Hayes, Davis, Ortiz-Hernandez,

and Garcia-Beltran.

I. Background

The four named plaintiffs were arrested for felonies in

2009. They were compelled under Proposition 69 to provide

DNA samples immediately after their arrests. Two of the

plaintiffs were never charged with crimes. The other two

plaintiffs were charged with felonies, but the charges were

dismissed. No warrants authorized taking any of the DNA

samples. Nor was there a suspicion of any crime that the DNA

samples would help solve.

Elizabeth Haskell was arrested on March 21, 2009, for

allegedly trying to take a person from police custody during

a San Francisco peace demonstration. She was taken to the

HASKELL v. HARRIS 1983

San Francisco County jail, where she was ordered to provide

a DNA sample. She was told that she would be charged with

a misdemeanor if she refused to comply immediately. She

provided a sample but states she would have refused if she

had not been threatened. Haskell was never charged with a

crime. She states, “I now live with the fear that my DNA

might be falsely matched to a sample obtained from a crime

scene, even if I remain completely law abiding. As a political

activist, I also recognize the taking of DNA from those

arrested during political activities as an intimidation tactic,

increasing the cost of voicing any freedom of expression.”

Reginald Ento was arrested in early 2009 on suspicion of

possessing stolen property. He was taken to the Sacramento

County jail, where a sheriff’s deputy collected a DNA sample

without his consent. Ento states that the deputy told him that

the DNA could be taken by force if necessary. He states, “Not

long after my DNA sample was collected, the charges against

me were dropped and I was released from custody. At no time

during my contact with law enforcement officials was I ever

informed that I could seek to have my DNA sample destroyed

and information regarding my DNA removed from any law

enforcement databases, based on the fact that the charges

against me [were] dropped.”

Jeffrey Lyons Jr. was arrested on March 16, 2009, for

allegedly trying to take a person from police custody during

a demonstration outside the Israeli consulate. He was taken to

the San Francisco County jail, where he was ordered to pro-

vide a DNA sample. He complied with the order. Lyons was

charged with a felony, but the charge was dismissed. He states

that after the charge was dismissed, “I called the San Fran-

cisco District Attorney’s office . . . to ask for help in getting

my DNA sample expunged. . . . The woman at the District

Attorney’s office said that I would have to file a motion and

that I should talk to my lawyer. I then said that because my

lawyer had been paid by the court I didn’t know whether I

would have to pay him to do this; she said she didn’t know

1984 HASKELL v. HARRIS

and suggested that I call the public defender’s office and that

maybe they would help me.”

Aakash Desai is a graduate student at the University of Cal-

ifornia, Berkeley. He participated in a demonstration in

Wheeler Hall on the Berkeley campus on November 20, 2009,

protesting tuition increases as well as custodial furloughs and

layoffs. Campus police arrested Desai and took him to the

Berkeley city jail. Desai was told at the jail that he was being

charged with felony burglary. He was told that if he refused

to provide a DNA sample he would be charged with a misde-

meanor and his bail would be increased. Desai then provided

a DNA sample. He states, “When I went to court on the fol-

lowing Monday for my arraignment, I learned that no charges

had been filed.”

In 1998, the California legislature passed the DNA Act,

which created a program of warrantless DNA testing of indi-

viduals convicted of certain violent crimes. See 1998 Cal.

Stat. ch. 696, § 2. In November 2004, California voters passed

Proposition 69. Proposition 69 requires that DNA be taken

from all individuals convicted of felonies. Cal. Penal Code

§ 296(a)(1). It also provides, effective January 1, 2009, for

expansion of the DNA program to felony arrestees. Cal. Penal

Code § 296(a)(2)(A)-(C).

Plaintiffs challenge the expansion to arrestees. Approxi-

mately 300,000 individuals are arrested for felonies in Cali-

fornia each year. About a third of them are never convicted

of the felonies for which they are arrested. Many, including

two of the plaintiffs, are never even charged with felonies.

The arrestee is photographed and fingerprinted during the

booking process. See Cal. Penal Code § 7(21). The arrestee’s

fingerprints are used to ascertain or verify his or her identity.

Police officials then use the arrestee’s identity, thus ascer-

tained or verified, to determine if he or she has already pro-

vided a DNA sample. If the arrestee has not already provided

HASKELL v. HARRIS 1985

a DNA sample, officials compel the arrestee to provide one.

Arrestees are told that they will not be released from jail until

they provide a DNA sample and that they can be charged with

a misdemeanor for refusing to provide one. Arrestees may be

told that force can be used to obtain a DNA sample. See Cal.

Penal Code § 298.1(a)-(b).

A judicial determination of probable cause for the arrest is

not required, either before arrest or before a DNA sample is

taken. As a practical matter, Proposition 69 precludes a judi-

cial determination of probable cause after the arrest, for it

requires that the sample be taken “immediately following an

arrest, or during the booking . . . process or as soon as admin-

istratively practicable after arrest.” Cal. Penal Code

§ 296.1(a)(1)(A). Proposition 69 nowhere mentions the desir-

ability, or even the possibility, of a judicial determination of

probable cause prior to taking the DNA sample.

After the arrestee has been identified and the DNA sample

has been collected, the sample is sent to a laboratory where

it is analyzed to create a DNA profile. The analysis occurs on

average approximately one month after collection of the sam-

ple. California retains the sample after the analysis. See Cal.

Penal Code § 295.1(c).

Once the arrestee’s DNA sample is analyzed, the arrestee’s

DNA profile is entered into the Combined DNA Index Sys-

tem (“CODIS”). CODIS is a system of federal, state, and

local DNA databases operated by the National DNA Index

System (“NDIS”). CODIS stores DNA records in a number of

different indexes, including an Arrestee Index and a Convict

Index. California arrestees’ DNA profiles are entered into the

Arrestee Index.

All fifty states and the federal government participate in

CODIS. Forty-seven states and the federal government collect

DNA from all convicted felony offenders. Twenty-two states

and the federal government collect DNA from some or all

1986 HASKELL v. HARRIS

arrestees. Law enforcement agencies around the country can

access the DNA profiles contained in CODIS.

CODIS uses 13 genetic markers—in technical terms, short

tandem repeat polymorphisms (“STRPs”)—to create DNA

profiles. The 13 genetic markers used by CODIS “ ‘were pur-

posely selected because they are not associated with any

known physical or medical characteristics.’ ” United States v.

Kincade, 379 F.3d 813, 818-19 (9th Cir. 2004) (en banc) (plu-

rality) (quoting H.R. Rep. No. 106-900, pt. 1 at 36 (2000)).

These markers are sometimes called “junk DNA.” Dr. Robert

Nussbaum, Chief of Medical Genetics at the University of

California, San Francisco, Department of Medicine, states,

“There is currently no evidence that specific variants at any

of the 13 core CODIS STRPs are themselves associated with

traits of functional or medical significance.” Dr. Nussbaum

states that in some cases the information associated with these

STRPs “might allow one to infer functional or other medical

information.” It is possible that “junk DNA” may be discov-

ered, at some future time, to be directly associated with traits

of functional or medical significance. See Kincade, 379 F.3d

at 818 n.6; see also, e.g., Gina Kolata, Reanimated ‘Junk’

DNA Is Found to Cause Disease, N.Y. Times, Aug. 20, 2010

at A1.

Once entered into CODIS, a DNA profile may be compared

to the hundreds of thousands of crime-scene DNA profiles

already entered into CODIS. A DNA profile provides an

extremely accurate means of distinguishing one individual

from another and a powerful tool to link particular individuals

to DNA traces left at crime scenes. See Kincade, 379 F.3d at

818-19 (9th Cir. 2004). A comparison between DNA profiles

and crime-scene DNA samples is performed each week by

CODIS. If there is a match between a crime-scene sample and

a DNA profile (a “hit”), NDIS notifies the submitting labora-

tory, which then forwards the match information to the rele-

vant law enforcement agency. Fingerprints linked to the DNA

HASKELL v. HARRIS 1987

profile are used to identify the individual whose DNA profile

matched a crime-scene DNA sample.

California conducts “familial searching” using DNA pro-

files in CODIS. A familial search identifies DNA profiles that

are not a precise match to the crime-scene DNA sample, but

are a close enough match to suggest that the individual whose

DNA profile is in CODIS may be related to an individual who

left DNA at the crime scene. Defendants state that, as a matter

of policy, California does not now conduct familial searching

using DNA profiles in the Arrestee Index (as distinct from the

Convict Index). Plaintiffs contend, however, that the State

will likely conduct familial searching of the Arrestee Index in

the future. This is so, they contend, because a supervisor of

the California DNA program has stated that all California

DNA profiles are now entered into the Arrestee Index rather

than the Convict Index, and that California cannot easily

transfer those profiles from the Arrestee Index to the Convict

Index after a conviction has been obtained.

The DNA samples and profiles taken from arrestees are

retained unless an arrestee successfully applies for expunge-

ment. Expungement is a lengthy, uncertain, and expensive

process. If no charges are filed, an individual must wait until

the relevant felony’s statute of limitations has run before

applying for expungement. See Cal. Penal Code § 299(b)(1).

Depending on the felony for which the individual was

arrested, the statute of limitations is three years or longer. See

Cal. Penal Code §§ 799-801. If charges are filed, an arrestee

often need not wait until the expiration of the statute of limita-

tions. Expungement may be sought after the charges are dis-

missed by a trier of fact before adjudication; after a conviction

has been reversed and the case dismissed; after the arrestee

has been found factually innocent; or after the arrestee has

been acquitted of the charged offense. Cal. Penal Code

§ 299(b)(1)-(4). Arrestees seeking expungement must pay

their own expenses and attorney’s fees. Unlawfulness of an

arrest is not a ground for expungement.

1988 HASKELL v. HARRIS

After requesting expungement, an arrestee must wait a

minimum of 180 days before a court can act. See Cal. Penal

Code § 299(c)(2)(D). The court has discretion to grant or

deny the request for expungement. The denial of a request for

expungement is a nonappealable order and cannot be

reviewed by petition for writ. Cal. Penal Code § 299(c)(1).

The prosecuting attorney can prevent expungement by mak-

ing an objection. See Cal. Penal Code § 299(c)(2)(D). The

State reports that California has expunged more than 900 con-

victed felon profiles and denied eight requests for expunge-

ment. It does not report expungement of any arrestee profiles.

California law provides some protection for individuals

who have submitted DNA. DNA samples may be tested only

to create the DNA profile. The DNA Act prohibits use of indi-

vidual samples or profiles for purposes other than law-

enforcement-related matching. See Cal. Penal Code

§ 299.5(f)(I). However, California law does permit statistical

studies using anonymous DNA profiles. Individuals who

misuse DNA profiles in violation of California law are subject

to imprisonment for up to a year and a fine of up to $50,000.

See Cal. Penal Code § 299.5(I). The district court found that

there have been no reported instances of misuse.

II. Friedman v. Boucher

In Friedman, we addressed the taking of DNA testing from

an arrestee without a warrant and without suspicion of a crime

that the DNA might help to solve. Friedman was a pre-trial

detainee in the Clark County, Nevada, jail, pending prosecu-

tion on criminal charges. Friedman v. Boucher, 580 F.3d 847,

851 (9th Cir. 2009). Our opinion does not state whether the

charges were felony or misdemeanor. A Las Vegas police

officer forcefully took a DNA sample from Friedman at the

direction of a county Deputy District Attorney who wanted

the DNA for inclusion in the Nevada cold case data bank. Id.

at 851. Friedman brought a § 1983 damages action against the

police officer who took the sample and the district attorney

HASKELL v. HARRIS 1989

who asked for it. We held that the defendants had violated

Friedman’s clearly established Fourth Amendment right to be

free from an unreasonable search. Id. at 858.

We had previously upheld the compelled taking of DNA

samples from convicted felons. See United States v. Kriesel,

508 F.3d 941, 942 (9th Cir. 2007); United States v. Kincade,

379 F.3d 813, 832 (9th Cir. 2004) (en banc); Rise v. Oregon,

59 F.3d 1556, 1562 (9th Cir. 1995). However, we refused to

extend these cases to a warrantless, suspicionless, compelled

taking of DNA from a pre-trial detainee. Friedman, 580 F.3d

at 856-58. We wrote that government interests justifying the

unconsented taking of DNA from convicted felons in our ear-

lier cases were not present: “The Nevada authorities extracted

DNA from Friedman not because they suspected he had com-

mitted a crime, nor to aid in his reintegration into society, nor

as a matter of his continuing supervision. Their purpose was

simply to gather human tissue for a law enforcement data-

bank, an objective that does not cleanse an otherwise uncon-

stitutional search.” Id. at 858.

The majority gives five reasons why it believes our deci-

sion in Friedman does not control this case. None of the rea-

sons is sufficient to distinguish Friedman.

First, the majority states, “[T]he DNA collection . . . was

conducted at the whim of deputy district attorney, acting with-

out any statutory authority. . . . In contrast, the DNA collected

in California from the Plaintiffs was approved in a statewide

ballot referendum, which is a ‘basic instrument of democratic

government[.]’ ” Maj. Op. at 1965. We made clear in Fried-

man that absence of an authorizing statute was not determina-

tive of the appellant’s Fourth Amendment claim. We wrote

that “adherence to a state statute does not guarantee compli-

ance with the Fourth Amendment.” Id. at 853 (citing Virginia

v. Moore, 553 U.S. 164, 171 (2008)). Further, if the action of

a state or local official is taken pursuant to an unconstitutional

1990 HASKELL v. HARRIS

state law, it does not matter whether that law was enacted by

the legislature or approved directly by the voters.

Second, the majority states, “[T]he police in Friedman sin-

gled out one individual for a search. In contrast, the California

DNA Act is programmatic, and applies to all felony

arrestees.” Maj. Op. at 1965. That a search is of a single per-

son, at the discretion of an individual official, or of a group

of people, mandated by a general rule, has never been a

touchstone of Fourth Amendment analysis. Our opinion in

Friedman did not rely on the fact that the search in that case

was of a single individual. In rejecting the government’s argu-

ments, we noted that “the government’s position . . . would

endorse routine, forcible DNA extraction.” 580 F.3d at 857

(emphasis added). We held such routine searches could not be

justified by “ ‘the mere chance that desired evidence might be

obtained.’ ” Id. (quoting Schmerber v. California, 384 U.S.

757, 769-70 (1966)). In holding the plaintiff’s Fourth Amend-

ment right to be clearly established, we wrote that our prece-

dent “precluded the interpretation that the government could

forcibly extract DNA from all pre-trial detainees as a matter

of routine, unrelated to facility security considerations.” Id. at

859 (emphasis added).

Third, the majority states, “[T]he detective ‘forced Fried-

man’s jaw open and forcefully took a buccal swab from the

inside of Friedman’s mouth.’ . . . In contrast, California

arrestees typically swipe the buccal swab along their own

mouths; thus law enforcement officials do not usually use

force.” Maj. Op. at 1966. California law expressly permits the

use of force (as well as the use of criminal misdemeanor

charges) if an arrestee refuses to provide a DNA sample. See

Cal. Penal Code § 296.1(a). Indeed, Reginald Ento, one of the

plaintiffs in this case stated that he was threatened with force

when he declined to provide a sample. Our opinion in Fried-

man describes the physical compulsion used to take the DNA,

but our holding does not turn on the use of physical force. We

held the compelled search unconstitutional because it could

HASKELL v. HARRIS 1991

not be justified by a permissible law enforcement objective.

Friedman, 580 F.3d at 853-858 (rejecting all three of the

State’s claims that an exception to the warrant requirement

applied).

Fourth, the majority states, “[T]he California DNA Act

imposes criminal penalties on people who misuse DNA infor-

mation . . . ; Nevada had no such safeguards because no stat-

ute authorized the DNA collection.” Maj. Op. at 1966. In

Friedman, we expressed no concern that the officer might

“misuse” the arrestee’s DNA sample in the sense of using it

for purposes other than placement in the State’s cold case

database. Friedman, 580 F.3d at 858. Rather, we held that the

compelled taking of Friedman’s DNA and its placement in the

database for investigative purposes was, in and of itself, a

misuse. Whether a coerced DNA sample would be used, or

misused, in other ways is irrelevant under Friedman.

Fifth, the majority states, “[T]he California DNA Act is

clearly intended to allow law enforcement officials to identify

criminal suspects, a purpose that we expressly approved in

Rise [v. Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995)]. . . . It

is unclear what purpose the DNA collection in Friedman was

intended to serve because it was not authorized by any

Nevada statute or regulation.” Maj. Op. at 1966. The majority

is wrong in stating that the purpose of Proposition 69 is to

identify the felony arrestees who are compelled to provide

DNA samples. Rather, as I discuss below, its sole purpose is

to assist in criminal investigations. The majority is also wrong

in stating that the purpose of the DNA collection in Friedman

was unclear. We wrote that “the deputy district attorney

wanted to put Friedman’s DNA sample in a cold case data

bank.” Friedman, 580 F.3d at 851. We wrote, further, that the

deputy district attorney “represented to a Nevada Justice

Court that she had ordered the search to use Friedman’s DNA

in the investigation of cold cases,” and that the police officer

“wanted the sample as an aid to solve cold cases.” Id.

1992 HASKELL v. HARRIS

Unlike the majority, I conclude that our decision in Fried-

man controls this case. We are bound by Friedman unless we

go en banc to overturn it.

III. Fourth Amendment

Even if Friedman were not controlling, I would conclude

that Proposition 69 violates the Fourth Amendment.

The majority emphasizes the similarity between finger-

prints and DNA. See, e.g., Maj. Op. at 1971-72 (“Given the

certain constitutionality of fingerprinting and the clear anal-

ogy between fingerprinting and DNA identification under the

DNA Act, as amended, privacy concerns here are diminished

substantially.”). I agree that fingerprints and DNA are similar.

Precisely because of that similarity, Proposition 69 is uncon-

stitutional.

Fingerprints and DNA are both valuable law enforcement

tools. In United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), an

early appellate decision upholding fingerprinting, the court

held fingerprinting was a permissible tool of identification, as

“an extension of methods of identification long used in deal-

ing with persons under arrest for real or supposed violations

of the criminal laws.” Id. at 69. Subsequent court decisions

have upheld the use of fingerprints for identification purposes.

See, e.g., Napolitano v. United States, 340 F.2d 313, 314 (1st

Cir. 1965) (“Taking of fingerprints [of those released on bail]

is universally standard procedure, and no violation of consti-

tutional rights.”).

But there are limits on the purpose for which fingerprints

may be taken. The Supreme Court has twice held that finger-

prints may not be taken unless there is consent, a warrant, or

probable cause. In Davis v. Mississippi, 394 U.S. 721, 722

(1969), police in Meridian, Mississippi, arrested and took the

fingerprints of “at least 24 Negro youths,” including Davis, as

part of a rape investigation. The police were required to have

HASKELL v. HARRIS 1993

probable cause in order to arrest Davis. See, e.g., Draper v.

United States, 358 US. 307, 310 (1959) (“The crucial question

. . . is whether [the arresting officer had] ‘probable cause’

within the meaning of the Fourth Amendment . . . to believe

that petitioner had committed or was committing a violation

of the narcotic laws.” (footnote and internal citations omit-

ted)).

Davis’s fingerprints, taken by the police, matched finger-

prints found on a windowsill of the victim’s home. Based in

part on that match, Davis was convicted and sentenced to life

in prison. The Court held that the fingerprint evidence should

have been suppressed because it had been taken in violation

of the Fourth Amendment. The Court noted that the state had

conceded that Davis had been arrested without probable

cause. Davis, 94 U.S. at 723. The Court rejected two reasons

argued in support of taking Davis’s fingerprints—that the fin-

gerprints had been taken as part of an investigation into a

crime and that fingerprints are a particularly reliable kind of

evidence. The Court wrote, “[T]o argue that the Fourth

Amendment does not apply to the investigatory stage is fun-

damentally to misconceive the purposes of the Fourth Amend-

ment.” Id. at 726. It wrote, further, “[W]e find no merit in the

suggestion . . . that fingerprint evidence, because of its trust-

worthiness, is not subject to the proscriptions of the Fourth

and Fourteenth Amendments. Our decisions recognize no

exception to the rule that illegally seized evidence is inadmis-

sible at trial, however relevant and trustworthy the seized evi-

dence may be as an item of proof.” Id. at 723-24.

In Hayes v. Florida, 470 U.S. 811, 812 (1985), police in

Punta Gorda, Florida, were investigating a series of burglary-

rapes. After interviewing over thirty men who generally fit the

description of the assailant, “investigators came to consider

[Hayes] a principal suspect.” Id. Police went to Hayes’s

house. They told him that he could either come to the police

station voluntarily to be fingerprinted or that he would be

arrested. Police then arrested Hayes and took him to the sta-

1994 HASKELL v. HARRIS

tion, where they took his fingerprints. The police were

required to have probable cause in order to arrest Hayes.

Hayes’s fingerprints matched those left at the scene of one

of the crimes. Id. at 813. Based in part on the match, Hayes

was convicted of burglary and sexual battery. The Court held

that Davis required suppression of the fingerprints. It wrote

that there had been, in fact, no probable cause. It wrote,

“Here, as in Davis, there was no probable cause to arrest, no

consent to the journey to the police station, and no judicial

authorization for such a detention for fingerprinting purposes.

. . . None of our later cases have undercut the holding in Davis

that transportation to and investigative detention at the station

house without probable cause or judicial authorization

together violate the Fourth Amendment.” Id. at 814-15.

The Court in Hayes wrote in dictum that in some circum-

stances fingerprints could possibly be taken without probable

cause. It wrote:

None of the foregoing implies that a brief deten-

tion in the field for the purpose of fingerprinting,

where there is only reasonable suspicion not amount-

ing to probable cause, is necessarily impermissible

under the Fourth Amendment. There is thus support

in our cases for the view that the Fourth Amendment

would permit seizures for the purpose of fingerprint-

ing, if there is reasonable suspicion that the suspect

has committed a criminal act, [and] if there is a rea-

sonable basis for believing that fingerprinting will

establish or negate the suspect’s connection with that

crime . . . .

Id. at 816-7 (internal citations omitted).

Relying on Davis and Hayes, we have distinguished

between fingerprint evidence taken for identification and for

investigative purposes. In United States v. Garcia-Beltran,

HASKELL v. HARRIS 1995

389 F.3d 864, 865 (9th Cir. 2004), the government conceded

that arresting officers lacked probable cause for the arrest of

the defendant. It nonetheless argued for the use of his finger-

prints, on the ground that they had been taken merely as evi-

dence of his identity. We held that fingerprints could be taken

for identification purposes, but could not be taken solely for

investigative purposes. We remanded to the district court for

a determination of the purpose for which the fingerprints had

been taken. Id. at 86-68. We held the same thing a year later

in United States v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir.

2005). We wrote, “It is established law under Hayes and

Davis that if fingerprints are taken for investigatory purposes,

they must be suppressed in a criminal trial.” Id. at 576; see

also United States v. Olivares-Rangel, 458 F.3d 1104,

1115-16 (10th Cir. 2006) (“[I]n determining whether the fin-

gerprint evidence in this case should be suppressed, we must

determine the original purpose for arresting and later finger-

printing Defendant; that is, was Defendant fingerprinted

merely as part of a routine booking or processing procedure

or was the illegal arrest in part for the purpose of obtaining

unauthorized fingerprints so Defendant could be connected to

additional alleged illegal activity.”); United States v.

Guevara-Martinez, 262 F.3d 751, 755-56 (8th Cir. 2001)

(suppressing fingerprints taken for investigatory purposes

after an arrest without probable cause).

I would apply to DNA the law that we already apply to fin-

gerprints. Under that law, if DNA is taken from arrestees

under Proposition 69 for purposes of identification, that tak-

ing is permissible. However, if it is taken solely for purposes

of investigation, that taking is a seizure in violation of the

Fourth Amendment.

The meaning of “identification,” as used in our caselaw, is

the conventional meaning of the term. Identification is a

determination of who someone is—his or her name, along

with identifying information such as date of birth, address,

and the like. In Garcia-Beltran, we contrasted investigation,

1996 HASKELL v. HARRIS

which was an attempt “to connect [the defendant] to alleged

criminal activity,” to identification, which was an attempt to

determine if he was “really who he says he is.” Garcia-

Beltran, 389 F.3d at 865, 867. Similarly, in Rise, we drew 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 fingerprints for

identification purposes from persons within the lawful cus-

tody of the state.” United States v. Rise, 59 F.3d 1556, 1560,

overruled on other grounds by City of Indianapolis v.

Edmond, 531 U.S. 32 (2000) and Ferguson v. City of Charles-

ton, 532 U.S. 67 (2001).

The majority in this case employs an idiosyncratic, expan-

sive definition of “identification,” including investigation

within that definition. The majority writes, “ ‘Identification’

encompasses not merely a person’s name, but also other

crimes to which the individual is linked.” Maj. Op. at 1976.

“The collection and use of DNA for identification purposes is

substantially identical to a law enforcement officer obtaining

an arrestee’s fingerprints to determine whether he is impli-

cated in another crime.” Id. at 1976. The majority writes, fur-

ther,

Plaintiffs contend that DNA profiling is unnecessary

because law enforcement officers already identify

arrestees using traditional fingerprinting. However,

this argument ignores the significant advantages of

DNA profiling over fingerprinting. Criminals can

easily hide their fingerprints by wearing gloves, but

they cannot mask their DNA.

Id. (emphasis added). The majority’s statement that criminals

“can easily hide their fingerprints by wearing gloves” makes

clear, if it was not clear already, that it includes investigation

in its definition of identification. Under our caselaw’s defini-

tion of identification, it makes no sense to say that a criminal

can hide his identity by wearing gloves. A criminal wears

HASKELL v. HARRIS 1997

gloves while he is committing a crime, not while police are

identifying him at the police station.

Proposition 69 employs the same idiosyncratic, expansive

definition of “identification.” California’s DNA Act, which

includes Proposition 69, provides that the California Depart-

ment of Justice “shall perform DNA analysis and other foren-

sic identification analysis . . . only for identification

purposes.” Cal. Penal Code § 295.1(a). Yet it is clear that

DNA samples taken under Proposition 69 are used solely for

investigative purposes. The text of Proposition 69 makes clear

that its objective is solving crime. The phrases “solve crime”

or “crime solving” are used five times in the text of the propo-

sition. See, e.g., Cal. Prop. 69, § II(d)(1)-(d)(2) (2004)

(“Expanding the statewide DNA Database and Data Bank

Program is [t]he most reasonable and certain means to accom-

plish effective crime solving in California” and is “[t]he most

reasonable and certain means to solve crime as effectively as

other states . . . .”); id. at § II(c) (“Law enforcement should

be able to use the DNA Database . . . to substantially reduce

the number of unsolved crimes [and] to help stop serial crime

by quickly comparing DNA profiles of qualifying persons and

evidence samples with as many investigations and cases as

necessary to solve crime and apprehend perpetrators . . . .”).

The ballot argument in favor of Proposition 69, contained

in the official voters’ pamphlet, focused on the crime-solving

potential of DNA. The ballot argument began, “In California,

the remains of a boy missing for two decades are finally iden-

tified. Two cold murders are solved in Kansas. And in Texas,

a serial sexual predator is captured. The cases are cracked

thanks to technology police are calling the fingerprints of the

21st century.” Ballot Pamp., Gen. Elec. (Nov. 2, 2004), argu-

ment in favor of Prop. 69 (emphasis removed) (internal

citations and quotations omitted), available at

http://vote2004.sos.ca.gov/voterguide/propositions/prop69-

arguments.htm. The ballot argument continued, stating that

taking a DNA sample from an arrestee “is more efficient and

1998 HASKELL v. HARRIS

helps police conduct accurate investigations. No wasting time

chasing false leads[.]” Id.; see also People v. Buza, 129 Cal.

Rptr. 3d 753, 774-75 (Cal. Ct. App. 2011) (listing additional

examples).1

The protocol for taking DNA samples from arrestees under

Proposition 69 also makes clear that the samples are taken

from arrestees not for identification, but rather for investiga-

tion. As described above, the first step at booking is to take

the arrestee’s fingerprints, which are then used to identify

him. Once police have identified the arrestee, they check to

determine whether he has already given a DNA sample. If he

has, no additional sample is taken. If he has not, a sample is

taken. After analysis of the sample, the arrestee’s DNA pro-

file is sent to CODIS. It takes a month, on average, for the

DNA analysis to be performed. By that time, the arrestee has

long since been identified. Indeed, the arrestee must be identi-

fied before his DNA sample can be taken.

Even under the Supreme Court’s dictum in Hayes, Proposi-

tion 69 violates the Fourth Amendment. Under the Hayes dic-

tum, DNA may not be taken from an unconsenting arrestee

unless there is “reasonable suspicion” that the arrestee has

committed a criminal act and there is a “reasonable basis” to

believe that the arrestee’s DNA will “establish or negate the

suspect’s connection with that crime.” Hayes, 470 U.S. at 817

(emphasis added). A DNA sample is not taken under Proposi-

tion 69 because there is reasonable suspicion that the arrestee

has committed a criminal act and that the DNA will help

solve “that crime.” Rather a DNA sample is taken because a

person has been arrested for a felony. The DNA is taken from

the arrestee as a matter of course, without the need for any

suspicion that he has committed any crime that the DNA will

help solve. The DNA is taken because there is a possibility

1

The California Supreme Court has granted California’s petition for

review in People v. Buza. 262 P.3d 854 (Cal. 2011). As a result, the appel-

late court’s opinion has been withdrawn.

HASKELL v. HARRIS 1999

that the DNA may help solve some other crime—a crime

about which the police taking the DNA have no knowledge,

indeed a crime that may not even exist.

The majority makes two objections to this analysis. First,

the majority writes:

The dissent’s key argument collapses, however,

because he completely ignores the fact that the Cali-

fornia DNA Act clearly requires that law enforce-

ment officers may only compel DNA collection

upon a finding of probable cause that the individual

has committed a felony. Moreover, each of the four

cases on which the dissent relies for some of his

remarkable theories—Hayes, Davis [ ], Ortiz-

Hernandez [ ], and Garcia-Beltran [ ]— involved the

compelled taking of fingerprints without probable

cause. This distinction completely undermines our

dissenting colleague’s novel interpretation of the

Fourth Amendment, and his reliance on the four

cited cases.

Maj. Op. at 1972-73 (citations and emphasis omitted).

The majority misreads these cases. In all four cases, there

had indeed been a determination of probable cause for the

arrest. That determination had been made by the police, as a

necessary precondition for making the arrests, just as it must

be made by the police under Proposition 69. The Supreme

Court in Hayes and Davis, and our court in Ortiz-Hernandez

and Garcia-Beltran, stated that there had not, in fact, been

probable cause. But police in all four cases believed there had

been probable cause, as a necessary precondition of the

arrests.

More important, the issue in all four cases was whether

there was probable cause for the crime for which the defen-

dants had been arrested. There is no such probable cause here.

2000 HASKELL v. HARRIS

Under Proposition 69, the arrest is made for a felony, but the

DNA sample is not taken to investigate that felony. It is taken

to investigate another crime for which there is no probable

cause. It is uncontested that the law enforcement officials who

take the samples have no probable cause (or even reasonable

suspicion) that the arrestee has committed another crime.

Indeed, there may not even be another crime.

Second, the majority writes:

The other fatal flaw in the dissent’s novel construc-

tion of the Fourth Amendment is his entirely unsup-

ported assumption that the information derived from

compelled fingerprinting and DNA collection may

only be used in connection with the crime for which

probable cause was found.

Maj. Op. at 1973. I make no such assumption. It is established

law that if fingerprints are lawfully taken—for example, for

identification purposes—they may be used for later investiga-

tive purposes. Ortiz-Hernandez, 427 F.3d at 577; Garcia-

Beltran, 389 F.3d at 868. I assume that this law applies

equally to DNA samples. That is, if a DNA sample is lawfully

taken, it may be used thereafter for investigative purposes.

The problem under Proposition 69 is that the samples are not

lawfully taken.

I conclude, based on Hayes, Davis, Ortiz-Hernandez, and

Garcia-Beltran, that taking DNA samples from felony

arrestees under Proposition 69, without consent, without a

warrant, and without suspicion of any crime committed by the

arrestee that the DNA will help solve, violates the Fourth

Amendment.

IV. Totality of the Circumstances

The unconstitutionality of Proposition 69 is clear under

Hayes, Davis, Ortiz-Hernandez, and Garcia-Beltran. The

HASKELL v. HARRIS 2001

totality of the circumstances test applied by the majority is

therefore irrelevant. I nonetheless address the majority’s

application of the test to show that the majority has overstated

the strength of the State’s interests in taking DNA samples

from arrestees and has understated the strength of the plain-

tiffs’ privacy interests.

A. Interests of the State

The majority relies on four “key interests” of the State.

Maj. Op. at 1975. I take them in turn.

1. Identification of Arrestees

The majority relies on California’s interest in the “identifi-

cation of arrestees,” stating that this is the “primary purpose”

of Proposition 69. Id. As I have just shown, the DNA taken

from arrestees under Proposition 69 is not used to identify

them. Rather, it is used solely to investigate.

2. Solving Past Crimes

The majority relies on the State’s interest in solving crimes,

stating that inclusion of arrestees’ DNA profiles in the CODIS

database “helps solve past crimes.” Id. at 1978. As noted

above, DNA is taken from all felony arrestees almost immedi-

ately after their arrest. About one-third of the arrestees are

never convicted of the felony for which they are arrested.

About two-thirds of them are. The DNA of two-thirds of the

felony arrestees would therefore be placed in the CODIS upon

conviction even without Proposition 69. The State’s interest

is thus served by Proposition 69 only to the extent that the

DNA of arrestees who are never convicted of a felony is use-

ful in solving crime, and to the extent that the DNA taken

from those who are convicted is useful before the date of their

conviction.

The majority states that ten months after Proposition 69

took effect “felony arrestee DNA samples had aided Califor-

2002 HASKELL v. HARRIS

nia police in 291 database hits.” Id. The basis for this state-

ment is a declaration of Kenneth Konziak, a Laboratory

Director and Technical Manager/Leader for the State of Cali-

fornia DNA Data Bank Program. Mr. Konziak states that as

of October 31, 2009, “CAL-DNA, used as an investigative

tool, has recorded 10,664 hits . . . . Of these 10,664 hits, so

far 291 have involved arrestee submissions.”

However, the “arrestee submissions” to which Mr. Konziak

refers in his declaration are submissions from all felony

arrestees, including the submissions from the two-thirds of the

arrestees who will be convicted. Without more, we have no

way of knowing how many of the 291 “hits” were for

arrestees who were later convicted. The hits for later-

convicted arrestees should be excluded from the analysis,

except to the extent that the hits were made because their

DNA samples were analyzed earlier than they otherwise

would have been.

The majority also provides examples of two crimes, com-

mitted by Donald Carter and Rene Hernandez, that have been

solved through the use of DNA in the arrestee database. Maj.

Op. at 1978. These are two of six examples given in the

amicus brief filed in this court by the California District

Attorneys Association. None of these six examples was pro-

vided to the district court. In none of them are we told that the

DNA samples were provided by never-convicted arrestees. In

five of the six examples, the brief states that the criminal

charges were still pending; in the sixth, the brief is silent.

Given the brief’s description of the circumstances of the

crimes that were charged in these six cases, it seems probable

that all of the six will be, or by now have been, convicted of

the felonies for which they were arrested.

It is likely that the inclusion of the DNA profiles of never-

convicted California felony arrestees in the CODIS database

under Proposition 69 will help solve some crimes, but based

HASKELL v. HARRIS 2003

on the evidence presented to the district court we do not know

how likely.

3. Preventing Future Crimes

The district court was presented with evidence purporting

to show the effectiveness of Proposition 69 in preventing

future crime, but the court gave it “little weight.” Haskell v.

Brown, 677 F. Supp. 2d 1187, 1201 (N.D. 2009). The court

wrote, “Though the government might be able to introduce

more reliable evidence about the efficacy of arrestee DNA in

preventing future crimes, it has not done so convincingly at

this stage of the litigation.” Id.

Despite the district court’s statement, the majority writes,

“DNA not only solves past crimes, but it helps police prevent

crimes from occurring in the future.” Maj. Op. at 1979.

4. Exonerating Innocent Suspects

The district court gave little weight to the State’s interest in

exonerating the innocent served by Proposition 69. It wrote,

“At this stage of the litigation, this interest is not very strong.

Though convicting the right person can theoretically serve to

exonerate (or obviate the risk of investigating and prosecut-

ing) the wrong person, the government has not yet introduced

any evidence that the taking of arrestees’ DNA has led to

either an increase in exonerations or a decrease in false

accusations/convictions.” 677 F. Supp. 2d at 1201 n.12.

Despite the district court’s statement, the majority writes

that “the DNA database also allows law enforcement officers

to eliminate innocent persons from suspect lists” and, in some

cases, to free those who have been wrongly convicted. Maj.

Op. at 1979. “There are few greater injustices than the wrong-

ful imprisonment of an innocent person.” Id. at 1980.

The majority uses the famous Chester Turner case to sup-

port its argument that DNA testing of never-convicted

2004 HASKELL v. HARRIS

arrestees serves to exonerate the innocent. David Jones was

convicted in 1995 for three murders he did not commit. Tur-

ner was convicted of rape in 2002 and a DNA sample was

then taken. Turner’s DNA profile matched DNA collected at

two of the three murder scenes, and Jones was released from

prison in 2004. If Turner’s DNA had been available in 1995,

it likely would have prevented Jones’s wrongful conviction.

But Proposition 69 was not necessary for this purpose. Turner

had been convicted of a felony before 1995. If Turner’s DNA

had been taken when he was convicted of that felony, as it

could have been even without Proposition 69’s authorization

of DNA collection from arrestees, it would have been avail-

able to exonerate Jones during the investigation of the mur-

ders.

B. Plaintiff’s Privacy Interests

Our cases upholding mandatory DNA testing have started

from the assumption of “ ‘severely diminished expectations of

privacy’ ” for those who have been convicted of crimes. See

Kriesel, 508 F.3d at 941 (quoting Samson, 547 US. at 882).

In those cases, we have found that felony parolees and those

on supervised release are “ ‘not entitled to the full panoply of

rights and protections possessed by the general public.’ ”

Kriesel, 508 F.3d at 947 (quoting Kincade, 379 F.3d at 833).

This case, however, concerns arrestees. All four of the

plaintiffs were arrested for felonies, but no plaintiff was con-

victed of the felonies for which he or she was arrested. Two

of them were not even charged.

An arrestee does not have the same privacy interest as a

person in the general population. See Rise, 59 F.3d at 1559-60

(holding those booking procedures requiring fingerprint iden-

tification of arrestees would be unlawful as applied to “free

persons”). But we have repeatedly recognized that an arrestee

has greater privacy interests than someone who has been con-

victed. See, e.g., United States v. Scott, 450 F.3d 863, 873 (9th

HASKELL v. HARRIS 2005

Cir. 2006) (holding that a “defendant out on his own recogni-

zance before trial” possessed “privacy . . . interests far greater

than a probationer’s”).

The majority recites “numerous degrading physical and

emotional intrusions” to which imprisoned arrestees are sub-

ject, Majority Op. at 1967, but it misunderstands the nature of

the privacy interests and does not take into account the justifi-

cations for impinging on those interests. The invasive search

procedures upheld in Bell v. Wolfish, 441 U.S. 520, 558 &

n.39 (1979) and Bull v. City & Cnty. of San Francisco, 595

F.3d 964, 971-73 (9th Cir. 2010), were justified by the need

for “security and order” in jails. Bell, 441 U.S. at 561. The

same is true of the opposite-sex monitoring of prisoners while

in the shower and bathroom upheld by the Seventh Circuit.

Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995) (noting

the need for such monitoring because “inter-prisoner violence

is endemic”).

The other intrusions cited by the majority have only been

upheld in exigent or specialized situations. For example, the

Eleventh Circuit has upheld the restraint and pepper-spray of

an arrestee, but in that case, the arrestee “repeatedly placed

officers’ lives and innocents’ lives in danger by engaging the

police in a multi-county vehicle chase that did not end until

[he] had crashed twice.” Garrett v. Athens-Clarke Cnty., Ga.,

378 F.3d 1274, 1280 (11th Cir. 2004). In Valdez v. Rosen-

baum, we upheld a four-and-one-half month telephone-access

restriction imposed on a pre-trial detainee. 302 F.3d 1039,

1048 (9th Cir. 2002). That restriction was imposed at the

request of prosecutors “to prevent Valdez from tipping off his

co-conspirators about the recently-issued indictments and,

thereby, to ensure their capture with minimal danger to the

arresting officers.” Id. at 1046.

Finally, the majority cites a case described in a newspaper

article for the proposition that pretrial detainees can be “in

lockdown for as much as 23½ hours a day, always shackled

2006 HASKELL v. HARRIS

in chains, even when taking a shower or making a phone call,

and rarely being allowed to see daylight and breathe fresh

air.” Maj. Op. at 1968. The majority misunderstands what

happened in that case. The court did not find these conditions

constitutional. Instead, the court held that the criminal defen-

dant could not challenge them as a part of his criminal trial.

The court denied the defendant’s motion “without prejudice

to his right to file a separate civil action.” Order at 14, United

States v. Morgan, No. 2:07-cr-00145-KDJ-PAL (D. Nev. Oct.

23, 2008), ECF 399.

The majority’s assessment of plaintiffs’ privacy interest

turns on the analogy between fingerprints and DNA. We once

observed that “information derived from the [DNA] sample is

substantially the same as that derived from fingerprinting.”

Rise, 59 F.3d at 1559-60. Our sister circuits have made simi-

lar observations. See United States. v. Mitchell, 652 F.3d 387,

410 (3rd. Cir. 2011) (en banc) (“Given the record in front of

us today, we conclude that a DNA profile is used solely as an

accurate, unique, identifying marker—in other words, as fin-

gerprints for the twenty-first century.”); Boroian v. Mueller,

616 F.3d 60, 67 (1st Cir. 2010) (“Given the DNA Act’s strin-

gent limitations on the creation and use of DNA profiles,

CODIS currently functions much like a traditional fingerprint

database, permitting law enforcement to match one identifica-

tion record against others contained in the database.”); Banks

v. United States, 490 F.3d 1178, 1192 (10th Cir. 2007)

(“These restrictions allow the Government to use an offend-

er’s DNA profile in substantially the same way that the Gov-

ernment uses fingerprint and photographic evidence—to

identify offenders, to solve past and future crimes, and to

combat recidivism.”).

But our more recent decisions have explicitly recognized

that DNA testing constitutes a greater infringement on privacy

than fingerprinting. In Kriesel, we noted that “concerns about

DNA samples being used beyond identification purposes are

real and legitimate.” 508 F.3d at 947-48. In Kincade, a major-

HASKELL v. HARRIS 2007

ity of the en banc court found that DNA testing represents a

significantly greater infringement on privacy than fingerprint-

ing. Judge Gould, concurring, wrote that “unlike fingerprints,

DNA stores and reveals massive amounts of personal, private

data about [an] individual.” 379 F.3d at 842 n.3. “[U]nlike

DNA, a fingerprint says nothing about the person’s health,

their propensity for particular disease, their race and gender

characteristics, and perhaps even their propensity for certain

conduct.” Kriesel, 508 F.3d at 948 (quoting Kincade, 379

F.3d at 842 n.3 (Gould, J., concurring)).

The majority stresses the limited subset of genetic informa-

tion used by law enforcement to establish a DNA profile, so-

called “junk DNA.” Maj. Op. at 1970. However, “studies

have begun to question the notion that junk DNA does not

contain useful genetic programming material.” Kincade, 379

F.3d at 818 n.6 (citation omitted). “[W]ith advances in tech-

nology, junk DNA may reveal far more extensive genetic

information.” Kriesel, 508 F.3d at 947.

Even with today’s technology, however, junk DNA reveals

more information than a fingerprint. Unlike fingerprint pat-

terns, which do not appear to be hereditary, DNA sampling

reveals information about familial relationships. Identical

twins do not have the same fingerprints, but they do have the

same DNA. Siblings, parents, and children, who do not have

similar fingerprints, have similar DNAs. Because of this simi-

larity, DNA has been used for “familial searching,” in which

law enforcement officials look for partial DNA matches

between crime scene DNA samples and DNA profiles in

CODIS. Defendants claim that California does not currently

conduct such familial searches on arrestee DNA profiles, but

the possibility—even likelihood—that California will begin

conducting such searches in the future remains. But see

Mitchell, 652 F.3d at 409 n.19 (finding privacy concerns

based on familial searching “speculative”).

2008 HASKELL v. HARRIS

Conclusion

We have never allowed the compulsory taking of DNA

samples from mere arrestees. We should not begin now. Prop-

osition 69 does not authorize the taking of DNA samples from

felony arrestees for identification purposes. Rather, it autho-

rizes the taking of DNA samples for solely investigative pur-

poses. Such takings are unconstitutional under the Supreme

Court’s decisions in Davis and Hayes, and under our deci-

sions in Ortiz-Hernandez and Garcia-Beltran.

Because the unconstitutionality of Proposition 69 is clear

under these cases, the totality of the circumstances test that

we have applied in cases involving convicted felons is irrele-

vant. However, if I were to apply the test, I would find the

State interests served by taking DNA samples from felony

arrestees who will never be convicted of the felony for which

they are arrested, and from arrestees before they are convicted

of that felony, much weaker than the majority finds them. I

would find the strength of plaintiffs’ privacy interests much

stronger.

I respectfully dissent.