# United States v. Thomas Cameron Kincade

> Court of Appeals for the Ninth Circuit · August 18, 2004 · 379 F.3d 813

URL: https://www.frixlaw.com/law-library/cases/787362

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Thomas Cameron KINCADE, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** August 18, 2004
- **Citations:** 379 F.3d 813; 2004 U.S. App. LEXIS 17191; 2004 WL 1837840
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Schroeder, Pregerson, Reinhardt, Kozinski, O'Scannlain, Hawkins, Silverman, Wardlaw, Gould, Clifton, Callahan
- **Cited by:** 195 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with by Nicholas v. Goord, 430 F.3d 652 (2005).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/787362

## How later opinions describe it (automated extraction)

- reasoning that “the DNA profile derived from the defendant’s blood sample establishes only a record of the defendant’s identity” and that “ ‘once a person is convicted of [a qualifying felony under the DNA Act] his identity has become a matter of state interest and he has lost…
- holding, in connection with statutory DNA testing of individuals convicted of certain crimes, that after a defendant’s identity has become a matter of state interest due to conviction of certain crimes, the defendant has lost any legitimate expectation of privacy in the identi…
- stating that “the Supreme Court ... often has noted that conditional releasees enjoy severely constricted expectations, of privacy relative to the general citizenry and that the government has a far more substantial interest in invading their privacy than it does in interferin…
- holding that "the DNA profile...established only a record of 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 …
- reasoning that Knights affirmed the possibility that “conditional releasees’ diminished expectations of privacy may be sufficient to justify the judicial assessment of a parole or probation search’s reasonableness outside the strictures of special needs analysis”

## Opinion text

379 F.3d 813
UNITED STATES of America, Plaintiff-Appellee,
v.
Thomas Cameron KINCADE, Defendant-Appellant.
No. 02-50380.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 23, 2004.
Filed August 18, 2004.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Maria E. Stratton, Monica Knox, and Michael Tanaka, Federal Public Defender, Los Angeles, CA, for the appellant.
Jonathan L. Marcus, U.S. Department of Justice, Washington, D.C., and Debra W. Yang, Steven D. Clymer, Ronald L. Cheng, Jacqueline Chooljian, John B. Owens, U.S. Attorney's Office, Los Angeles, CA, for the appellee.
Marc Rotenberg and Marcia Hofmann, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Information Privacy Center, in support of the appellant.
Melinda Bird and Michelle Uzeta, Protection & Advocacy, Inc., Los Angeles, CA, for amicus curiae Protection & Advocacy, Inc., in support of the appellant.
Timothy P. O'Toole, Todd Cox, Alison Flaum, and Jennifer Di Toro, Public Defender Service for the District of Columbia, Washington, D.C., for amicus curiae Public Defender Service for the District of Columbia, in support of the appellant.
Bill Lockyer, Robert R. Anderson, Jo Graves, Gerald A. Engler, George F. Hindall, III, and Enid A. Camps, California Office of the Attorney General, San Francisco, CA, Gregg D. Renkes, Alaska Department of Law, Juneau, AK, Mark J. Bennett, Hawaii Department of the Attorney General, Idaho Office of Attorney General, Mike McGrath, Montana Department of Justice, Helena, MT, Hardy Myers, Oregon Department of Justice, Salem, OR, Christine O. Gregoire, Washington Office of the Attorney General, Olympia, WA, for amici curiae States of California, Alaska, Hawaii, Idaho, Montana, Oregon, and Washington, in support of the appellee.
Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding.
Before SCHROEDER, Chief Judge, PREGERSON, REINHARDT, KOZINSKI, O'SCANNLAIN, HAWKINS, SILVERMAN, WARDLAW, GOULD, CLIFTON, and CALLAHAN, Circuit Judges.
O'SCANNLAIN, Circuit Judge:
1
We must decide whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes.
2
* A
3
Pursuant to the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), Pub.L. No. 106-546, 114 Stat. 2726 (2000), individuals who have been convicted of certain federal crimes 1 and who are incarcerated, or on parole, probation, or supervised release 2 must provide federal authorities with "a tissue, fluid, or other bodily sample ... on which a[n] ... analysis of th[at sample's] deoxyribonucleic acid (DNA) identification information" can be performed. 42 U.S.C. §§ 14135a(c)(1)-(2); id. at §§ 14135a(a)(1)-(2). Because the Federal Bureau of Investigation ("the Bureau") considers DNA information derived from blood samples to be more reliable than that obtained from other sources (in part because blood is easier to test and to preserve than hair, saliva, or skin cells), Bureau guidelines require those in federal custody and subject to the DNA Act ("qualified federal offenders") to submit to compulsory blood sampling. See Nancy Beatty Gregoire, Federal Probation Joins the World of DNA Collection, 66 Fed. Probation 30 , 31 (2002). Failure "to cooperate in the collection of that sample [is] ... a class A misdemeanor," punishable by up to one year's imprisonment and a fine of as much as $100,000. 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571 & 3581. 3
4
Once collected by a phlebotomist, qualified federal offenders' blood samples are turned over to the Bureau for DNA analysis-the identification and recording of an individual's "genetic fingerprint." 4 Through the use of short tandem repeat technology ("STR"), the Bureau analyzes the presence of various alleles 5 located at 13 markers (or loci) on DNA present in the specimen. These STR loci are each found on so-called "junk DNA" — that is, non-genic stretches of DNA not presently recognized as being responsible for trait coding 6 — and "were purposely selected because they are not associated with any known physical or medical characteristics." H.R.Rep. No. 106-900(I) at *27. Because there are observed group variances in the representation of various alleles at the STR loci, however, DNA profiles derived by STR may yield probabilistic evidence of the contributor's race or sex. Future of Forensic DNA Testing 35, 39-42. 7 Even so, DNA profiles generated by STR are highly individuated: Due to the substantial number of alleles present at each of the 13 STR loci (between 7 and 20, see Future of Forensic DNA Testing 41) and wide-spread variances in their representation among human beings, the chance that two randomly selected individuals will share the same profile are infinitesimal — as are the chances that a person randomly selected from the population at large will present the same DNA profile as that drawn from crime-scene evidence. See Future of Forensic DNA Testing 19-22, 39-42.
5
Once STR has been used to produce an individual's DNA profile, the resulting record 8 is loaded into the Bureau's Combined DNA Index System ("CODIS") — a massive centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons. 42 U.S.C. §§ 14132 (a)-(b). 9 As of March 2004, CODIS contained DNA profiles drawn from 1,641,076 offenders and 78,475 crime scenes. Fed. Bureau of Investigation, NDIS Statistics, available at http:// www.fbi.gov/hq/lab/codis/clickmap.htm (last visited May 11, 2004). Of those profiles, 298,767 offender records and 10,270 forensic samples originated in the states comprising the Ninth Circuit. See id.
6
CODIS can be used in two different ways. First, law enforcement can match one forensic crime scene sample to another forensic crime scene sample, thereby allowing officers to connect unsolved crimes through a common perpetrator. Second, and of perhaps greater significance, CODIS enables officials to match evidence obtained at the scene of a crime to a particular offender's profile. In this latter capacity, CODIS serves as a potent tool for monitoring the criminal activity of known offenders. Through March 2004, Bureau data indicated that CODIS has aided some 16,160 investigations nationwide — 1,710 within the Ninth Circuit. Fed. Bureau of Investigation, Investigations Aided, available at http://www.fbi.gov/hq/lab/codis/aidedmap.htm (last visited May 11, 2004).
B
7
On July 20, 1993, driven by escalating personal and financial troubles, decorated Navy seaman Thomas Cameron Kincade robbed a bank using a firearm in violation of 18 U.S.C. §§ 2113 (a) & (d) and 18 U.S.C. § 924 (c)(1). He soon pleaded guilty to those charges and was sentenced to 97 months' imprisonment, followed by three years' supervised release. Among others, terms of his release required him to participate in an outpatient substance abuse program; not to commit another federal, state, or local crime; and to follow the instructions of his probation officer.
8
Shortly after his August 2000 release from federal prison, Kincade submitted a urine sample which tested positive for cocaine. A warrant was issued for his arrest in early October, and on November 13, the district court reinstated Kincade's original term of supervision. In April 2001, Kincade admitted relapsing into cocaine abuse and requested placement in a residential drug treatment program. No action was taken on his request, and on May 21 and May 28, 2001, Kincade again submitted cocaine-positive urine samples. As a result, the district court modified the terms of Kincade's supervised release on June 7, 2001 to include treatment in a residential drug program. Thereafter, Kincade appears to have begun making progress in reforming his life. 10
9
On March 25, 2002, Kincade's probation officer asked him to submit a blood sample pursuant to the DNA Act. 11 He refused, eventually explaining that his objections were purely a matter of personal preference — in his words," not a religious conviction." 12 Kincade's probation officer suggested he contact his attorney for advice, and also explained that if he changed his mind he could submit a blood sample on April 16, 2002. On April 4, 2002, Kincade notified the Probation Office of his intention not to comply and, as promised, he refused to appear for DNA profiling on April 16. On May 7, 2002, Kincade's probation officer again contacted him in an effort to determine whether there was some way they could work through the issue. Kincade indicated that he would comply with the requirements of the DNA Act only if threatened with imposition of a significant term of incarceration. Lacking any alternative, Kincade's probation officer informed the district court that Kincade had refused to submit the blood sample required by the DNA Act. He also recommended revocation of Kincade's supervised release, and re-incarceration.
10
In briefing to the district court prior to a scheduled revocation hearing, Kincade challenged the constitutionality of the DNA Act on grounds that it violated the Ex Post Facto Clause, the Fourth Amendment, and separation of powers principles embodied in Article III and the Due Process Clause. 13 On July 15, 2002, Kincade appeared at a revocation hearing before U.S. District Judge Dickran Tevrizian. After stating on the record that he was inclined to hold the DNA Act constitutional, Judge Tevrizian offered Kincade another opportunity to submit to DNA profiling in lieu of proceeding with the revocation hearing. Kincade consulted with counsel, who quickly informed the court that Kincade had again declined to reconsider his refusal to submit to DNA profiling.
11
Following argument, Judge Tevrizian rejected Kincade's constitutional challenges to the DNA Act. Concluding that Kincade had violated the terms of his supervised release by refusing to follow his Probation officer's lawful instruction to provide a blood sample, Judge Tevrizian sentenced Kincade to four months' imprisonment and two years' supervised release. Judge Tevrizian immediately stayed Kincade's sentence of imprisonment, and we expedited review of his appeal. On April 14, 2003 — while this appeal was pending, and while Kincade was serving his additional supervised release — Kincade again tested positive for drug use. Consequently, Judge Tevrizian lifted his stay of Kincade's sentence and, once in custody, Kincade finally was forced to submit to DNA profiling. He persists in his challenge to the Act.
II
12
While "[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology," Kyllo v. United States, 533 U.S. 27, 33-34 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001), we begin — as always — with first principles. 14
13
* Pursuant to the Fourth Amendment,"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "The touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Pennsylvania v. Mimms, 434 U.S. 106, 108-09 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)). 15
14
Ordinarily, the reasonableness of a search depends on governmental compliance with the Warrant Clause, which requires authorities to demonstrate probable cause to a neutral magistrate and thereby convince him to provide formal authorization to proceed with a search by issuance of a particularized warrant. United States v. United States Dist. Ct., 407 U.S. 297, 315-16 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972); see also Groh v. Ramirez, 540 U.S. 551 , ___, 124 S.Ct. 1284, 1290-91 , 157 L.Ed.2d 1068 (2004). However, the general rule of the Warrant Clause is not unyielding. Under a variety of conditions, law enforcement may execute a search without first complying with its dictates. For instance, police may execute warrantless searches incident to a lawful arrest: It is reasonable for authorities to search an arrestee for weapons that might threaten their safety, or for evidence which might be destroyed. See, e.g., Chimel v. California, 395 U.S. 752, 762-63 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969); see also Thornton v. United States, 541 U.S. ___ , 124 S.Ct. 2127, 2132 , 158 L.Ed.2d 905 (2004). And even outside the context of a lawful arrest supported by probable cause, officers are likewise authorized to conduct a warrantless protective pat-down of individuals they encounter in the field so long as their concerns are justified by reasonable suspicion of possible danger. See, e.g., Terry, 392 U.S. at 27 , 88 S.Ct. 1868 .
15
The Court has also sanctioned several general search regimes that are free from the usual warrant-and-probable cause requirements. Though not necessarily mutually-exclusive, three categories of searches help organize the jurisprudence. The first can be called "exempted areas." Included here are searches conducted at the border, 16 in prisons, 17 and at airports and entrances to government buildings. 18
16
The second category is typically labeled "administrative" searches, though it has not always been given that label. 19 This class includes inspections of closely-regulated businesses, see, e.g., Burger, 482 U.S. at 702-04, 107 S.Ct. 2636 ("[W]here the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment."); United States v. Biswell, 406 U.S. 311, 317 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972), and extends to other routine regulatory investigations. See, e.g., Camara v. Mun. Ct. of S.F., 387 U.S. 523, 535-539 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1967) (authorizing municipal "area inspections" designed to monitor compliance with building safety codes).
17
A final category of suspicionless searches is referred to as "special needs," and in recent years, the Court has devoted increasing attention to the development of the accompanying analytical doctrine. See Illinois v. Lidster, 540 U.S. 419 , 124 S.Ct. 885 , 157 L.Ed.2d 843 (2004) (upholding a highway checkpoint designed to enable police to question citizens about a recent crime); Bd. of Educ. v. Earls, 536 U.S. 822 , 122 S.Ct. 2559 , 153 L.Ed.2d 735 (2002) (upholding a program that subjected all students participating in extracurricular activities to submit to random, suspicionless drug testing); Ferguson v. City of Charleston, 532 U.S. 67 , 121 S.Ct. 1281 , 149 L.Ed.2d 205 (2001) (invalidating a public hospital's non-consensual drug testing of maternity patients); Edmond, 531 U.S. at 48, 121 S.Ct. 447 (invalidating a roadside checkpoint designed to discover and interdict illegal drugs); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 , 115 S.Ct. 2386 , 132 L.Ed.2d 564 (1995) (upholding a program subjecting student athletes to random, suspicionless drug testing); see also Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 , 109 S.Ct. 1384 , 103 L.Ed.2d 685 (1989) (upholding suspicionless drug testing of certain U.S. Customs officials); Skinner, 489 U.S. at 634 , 109 S.Ct. 1402 (upholding compulsory blood and urine tests of railroad employees involved in certain train accidents); Griffin, 483 U.S. at 879-80, 107 S.Ct. 3164 (upholding a warrant-less search of a probationer's residence).
18
For the most part, these cases involve searches conducted for important non-law enforcement purposes in contexts where adherence to the warrant-and-probable cause requirement would be impracticable. Thus, the Court explained in New Jersey v. T.L.O. that "preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult." 469 U.S. at 339, 105 S.Ct. 733 . At the same time, the Court explained, the warrant and probable cause requirements are ill-suited to the pressing needs of public schools. Id. at 339-40, 105 S.Ct. 733 . The Justices therefore found "that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject," and held that "legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." Id. at 340-41, 105 S.Ct. 733 . As Justice Blackmun described the Court's rationale in his concurring opinion, it was the school environment's "special needs, beyond the normal need for law enforcement, [that] ma[d]e the warrant and probable-cause requirement impracticable." Id. at 351, 105 S.Ct. 733 (Blackmun, J., concurring).
19
* Almost as soon as the "special needs" rationale was articulated, however, the Court applied special needs analysis in what seemed — at least on the surface — to be a clear law enforcement context. At issue in Griffin was a warrantless search of a probationer's home, instigated and carried out under the direction of law enforcement officials acting with what appeared to be pure law enforcement motives. The facts of the search are particularly illuminating. In early 1983, a detective in the Beloit, Wisconsin police department contacted Griffin's probation officer's supervisor with information that Griffin might have weapons in his apartment. Unable to secure the cooperation of Griffin's own probation officer in the execution of a search, the supervisor enlisted another probation officer for assistance and promptly accompanied three plainclothes policemen to Griffin's apartment. The ensuing search uncovered a weapon, Griffin, 483 U.S. at 871 , 107 S.Ct. 3164 , and Griffin was arrested and charged with possession of a firearm by a felon. He eventually moved to suppress the evidence uncovered during the warrantless search of his residence. Id. at 872, 107 S.Ct. 3164 .
20
On eventual appeal to the Supreme Court, the Justices explained:
21
A State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents `special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.... [I]t is always true of probationers (as we have said it to be true of parolees) that they do not enjoy the absolute liberty to which every citizen is entitled, but only conditional liberty properly dependent on observance of special probation restrictions. These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.
22
Id. at 873-75, 107 S.Ct. 3164 (citations, quotations, and alterations omitted). Carefully noting that these "special needs" — operation of a system of conditional release characterized by close supervision of convicted offenders — did not operate wholly to eliminate the Fourth Amendment rights of those subject to its strictures, the Court observed that the probation context nonetheless necessitated a relaxation of the usual warrant-and-probable cause requirement. Id. at 876-79, 107 S.Ct. 3164 .
23
In such circumstances it is both unrealistic and destructive of the whole object of the continuing probation relationship to insist upon the same degree of demonstrable reliability of particular items of supporting data, and upon the same degree of certainty of violation, as is required in other contexts. In some cases — especially those involving drugs or illegal weapons — the probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society.
24
Id. at 879, 107 S.Ct. 3164 . Thus, the Court concluded, the Constitution permits the execution of probation and parole searches based on no more than reasonable suspicion-even where the search at issue is triggered by law enforcement information and motivated by apparent law enforcement purposes. Id. at 880, 107 S.Ct. 3164 .
2
25
Notwithstanding Griffin's apparent focus on the crucial law enforcement goals of probation and parole, 20 however, the Court's more recent "special needs" cases have emphasized the absence of any law enforcement motive underlying the challenged search and seizure. Two cases are particularly noteworthy. In Edmond , the Court addressed whether the Indianapolis, Indiana police department lawfully could operate a program of random vehicle checkpoints in an effort to interdict illegal drugs. Under the program, officers randomly would stop passing vehicles at several locations throughout the city. Once a vehicle was detained, officers would request its driver's license and registration, conduct a non-invasive visual inspection of the car's interior, and lead a narcotics-detention dog around the vehicle's exterior. Edmond, 531 U.S. at 35 , 121 S.Ct. 447 . During the program's operation, police temporarily detained more than 1100 vehicles and arrested approximately 100 individuals (approximately half for drug violations and half for other offenses). Two of the detained motorists eventually sued, alleging that such suspicionless law enforcement detentions violated the Fourth Amendment.
26
Siding with the motorists, the Court explained that it had never approved a checkpoint program "whose primary purpose was to detect evidence of ordinary criminal wrongdoing." Id. at 38, 121 S.Ct. 447 . To reach that conclusion, the Court had to distinguish two precedents: United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976), which upheld suspicionless border checkpoints designed to intercept illegal aliens, and Mich. Dep't of State Police v. Sitz, 496 U.S. 444 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990), which upheld suspicionless roadside sobriety checkpoints. To do so, the Court explained that the former was justified by a unique government interest in border control, id. at 37-39, 41, 121 S.Ct. 447 , and the latter by "the type of immediate, vehicle-bound threat to life and limb" posed by drunk drivers. Id. at 39, 43, 121 S.Ct. 447 . In contrast, Indianapolis's program was justified "only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime." Id. at 44, 121 S.Ct. 447 . In such circumstances, the Court flatly "decline[d] to suspend the usual requirement of individualized suspicion." Id.
3
27
Edmond's emphasis on the non-law enforcement focus of sustainable suspicionless searches was soon strengthened in Ferguson . There, the Court addressed whether a public hospital lawfully could share pregnant women's positive drug tests with law enforcement in an effort to help solve the epidemic of "crack babies." Ten mothers arrested because of the hospital's collaboration with the police eventually sued the hospital and the City of Charleston, South Carolina, alleging that the Fourth Amendment forbids suspicionless drug screening of their urine for law enforcement purposes. Ferguson, 532 U.S. at 71-73 , 121 S.Ct. 1281 .
28
As in Edmond , the Court again sided with the plaintiffs. It began by observing that the infringement occasioned by the hospital's sharing private medical data with law enforcement constituted a far more egregious intrusion into patients' privacy rights than the suspicionless urinalyses upheld in the Court's prior drug testing cases:
29
In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. The use of an adverse test result to disqualify one from eligibility for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such results to third parties. The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with non-medical personnel without her consent. In none of our prior cases was there any intrusion upon that kind of expectation.
30
Id. at 78, 121 S.Ct. 1281 .
31
Crucially, the Court continued, the hospital's program also had purposes clearly distinguishable from those of the Court's other urinalysis cases:
32
In each of those earlier cases, the `special need' that was advanced as a justification for the absence of a warrant or individualized suspicion was one divorced from the State's general interest in law enforcement.... In this case, however, the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment.
33
Id. At bottom, because "the immediate objective of the searches was to generate evidence for law enforcement purposes, " id. at 83 , 121 S.Ct. 1281 (emphasis in original), 21 and in light of "the extensive involvement of law enforcement officials at every stage of the policy," id. at 84 , 121 S.Ct. 1281 , the Court concluded that "this case simply does not fit within the closely guarded category of `special needs.'" Id.
4
34
While these recent cases may seem to be moving toward requiring that any search conducted primarily for law enforcement purposes must be accompanied by at least some quantum of individualized suspicion, the Court signaled the existence of possible limitations in United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001). At issue there was a warrantless search of a probationer long suspected of having committed crimes targeting Pacific Gas & Electric ("PG & E") facilities. Shortly after Knights was placed on probation for an unrelated drug offense, an arson targeting a PG & E electrical transformer caused approximately $1.5 million in damage. Id. at 114-15 , 122 S.Ct. 587 .
35
On a hunch that Knights may have been involved (some prior crimes against PG & E had coincided with Knights's court appearances), a sheriff's deputy established surveillance of Knights's apartment. In the wee hours, he observed Knights's suspected accomplice leave the apartment carrying three cylindrical items-potential pipe bombs-toward a nearby waterway. Shortly thereafter, the deputy heard three splashes, and watched Knights's compatriot return empty-handed to the residence before driving away. Id. at 115 , 122 S.Ct. 587 . The deputy followed, and after seeing the suspected accomplice park nearby, approached his vehicle — observing "a Molotov cocktail and explosive materials, a gasoline can, and two brass padlocks that fit the description of those removed from the PG & E transformer vault." Id.
36
Aware that conditions of Knights's probation required him to submit to warrantless, suspicionless searches of his person and residence at any time, the deputy promptly executed a warrantless search of Knights's home. In the process, he uncovered "a detonation cord, ammunition, liquid chemicals, instruction manuals on chemistry and electrical circuitry, bolt cutters, telephone pole-climbing spurs, drug paraphernalia, and a brass padlock stamped `PG & E.'" Id. Knights soon was arrested and charged, and he ultimately sought to suppress the evidence obtained during the deputy's search. Id. at 116 , 122 S.Ct. 587 .
37
Characterizing Griffin as having sanctioned only purely probationary searches undertaken with non-law enforcement motivations, Knights argued that the search of his residence was impermissible because it had been motivated solely by law enforcement objectives and was executed entirely by law enforcement officials. The Court, however, cursorily rejected his argument:
38
This dubious logic — that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it — runs contrary to Griffin's express statement that its `special needs' holding made it `unnecessary to consider whether' warrantless searches of probationers were otherwise reasonable within the meaning of the Fourth Amendment.
39
Id. at 117-18, 122 S.Ct. 587 (quoting Griffin, 483 U.S. at 880 , 107 S.Ct. 3164 ). Rather than analyze the warrantless search of Knights's apartment within the special needs framework, the Court instead opted to "consider th[e] question [left open by Griffin ] in assessing the constitutionality of the search of Knights's apartment." Id. at 118, 122 S.Ct. 587 .
40
To do so, it turned to the traditional totality of the circumstances test-balancing the invasion of Knights's interest in privacy against the State's interest in searching his home without a warrant supported by probable cause. Of central importance to our decision today, the Court explained that "Knights's status as a probationer subject to a search condition informs both sides of that balance." Id. at 119 , 122 S.Ct. 587 . With regard to Knights's interest in privacy, the Court observed:
41
Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled. Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. The judge who sentenced Knights to probation determined that it was necessary to condition the probation on Knights's acceptance of the search provision. It was reasonable to conclude that the search condition would further the two primary goals of probation-rehabilitation and protecting society from future criminal violations. The probation order clearly expressed the search condition and Knights was unambiguously informed of it. The probation condition thus significantly diminished Knights's reasonable expectation of privacy.
42
Id. at 119-20 , 122 S.Ct. 587 (citations and quotations omitted).
43
Assessing the government's interest in applying the search condition to Knights, the Court similarly explained:
44
[T]he very assumption of the institution of probation is that the probationer is more likely than the ordinary citizen to violate the law. The recidivism rate of probationers is significantly higher than the general crime rate. And probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration.
45
...
46
The State has a dual concern with a probationer. On the one hand is the hope that he will successfully ... be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. The ... [State's] interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen.
47
Id. at 120-21 , 122 S.Ct. 587 . As a result, the Court held, the government needs "no more than reasonable suspicion to conduct a search of [a] probationer's house." Id. at 121 , 122 S.Ct. 587 .
5
48
Having thus upheld a warrantless probation search designed purely to further law enforcement purposes, and having done so wholly outside the confines of special needs analysis, Knights suggests something of a departure from Edmond and Ferguson (and to a more limited extent Griffin ). After all, each of those cases had assessed warrantless searches under a special needs rubric that demands some underlying motivation apart from the government's general interest in law enforcement. Yet even beyond declining to apply such analysis, Knights almost wholly ignored the Court's previous decisions in Edmond and Ferguson . 22
49
One possible distinction between Knights , on one hand, and Edmond and Ferguson , on the other, suggests a possible reconciliation: The search conducted in Knights was supported by reasonable suspicion, while the Court's most recent special needs cases have focused on suspicionless searches and seizures, such as the DNA profiling at issue here. See, e.g., Lidster, 540 U.S. at ___ , 124 S.Ct. at 889 ; Ferguson, 532 U.S. at 76-77 , 121 S.Ct. 1281 ; Edmond, 531 U.S. at 37-38 , 121 S.Ct. 447 . One might therefore be tempted to conclude that the quantum of suspicion supporting the search of Knights's apartment was what pushed the Court beyond special needs analysis. See, e.g., post at 861-862.
50
We do not think so. The Court has long understood special needs analysis to be triggered not by a complete absence of suspicion, but by a departure from the Fourth Amendment's warrant-and-probable cause requirements. In Griffin , after all, the search upheld by the Court under special needs analysis was also supported by "reasonable grounds," 483 U.S. at 875-76 , 107 S.Ct. 3164 , and Justice Scalia opened the analysis of his opinion for the Court by observing:
51
Although we usually require that a search be undertaken only pursuant to a warrant (and thus supported by probable cause, as the Constitution says warrants must be), we have permitted exceptions when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."
52
Id. at 873, 107 S.Ct. 3164 (quoting T.L.O., 469 U.S. at 351 , 105 S.Ct. 733 (Blackmun, J., concurring)); see also Von Raab, 489 U.S. at 666 , 109 S.Ct. 1384 (noting that the special needs present in that case "justify departure from the ordinary warrant and probable-cause requirements"); Skinner, 489 U.S. at 619 , 109 S.Ct. 1402 ("Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause." We have recognized exceptions to this rule, however, "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.") (quoting Griffin, 483 U.S. at 873 , 107 S.Ct. 3164 ) (citations and additional internal quotation omitted); T.L.O., 469 U.S. at 340 -42 & n. 8, 105 S.Ct. 733 (describing the special needs justifying a departure from the warrant-and-probable cause standard in schools and expressly declining to "decide whether individualized suspicion is an essential element of the reasonableness standard we adopt for searches by school authorities."). 23
53
Moreover, Knights made clear the Court was not prepared to draw the line at a reasonable suspicion threshold-at least not when it comes to conditional releasees. To the contrary, it expressly left unresolved the question whether special needs analysis controlled suspicionless searches of probationers at all:
54
We do not decide whether the probation condition so diminished, or completely eliminated, Knights's reasonable expectation of privacy ... that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicion-less search because the search in this case was supported by reasonable suspicion.
55
Id. at 120 n. 6, 122 S.Ct. 587 . The only rational interpretation of Knights's express reservation is that-without regard to the Court's prior decisions in Edmond and Ferguson — it remains entirely an open question whether suspicionless searches of conditional releasees pass constitutional muster when such searches are conducted for law enforcement purposes. 24
B
56
We are not the first court called upon to address this unresolved issue. Confronted with challenges to the federal DNA Act and its state law analogues, our sister circuits and peers in the states have divided in their analytical approaches — both before and after the Supreme Court's recent special needs decisions. On one hand, the Second, Seventh, and Tenth Circuits, along with a variety of federal district courts and at least two state Supreme Courts, have upheld DNA collection statutes under a special needs analysis (though not always ruling out the possibility that the totality of the circumstances might validate the search absent some special need). See Green v. Berge, 354 F.3d 675, 679 (7th Cir.2004); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003); Roe v. Marcotte, 193 F.3d 72, 79-82 (2d Cir.1999); Vore v. U.S. Dep't of Justice, 281 F.Supp.2d 1129, 1133-35 (D.Ariz.2003); Miller v. U.S. Parole Comm'n, 259 F.Supp.2d 1166, 1175-78 (D.Kan.2003); United States v. Sczubelek, 255 F.Supp.2d 315, 319-23 (D.Del.2003); United States v. Reynard, 220 F.Supp.2d 1142, 1165-69 (S.D.Cal.2002); State v. Martinez, 276 Kan. 527 , 78 P.3d 769, 771-75 (2003); State v. Olivas, 122 Wash.2d 73 , 856 P.2d 1076, 1085-86 (1993); State v. Steele, 155 Ohio App.3d 659 , 802 N.E.2d 1127, 1132-37 (2003); In re D.L.C., 124 S.W.3d 354 , 370-73 (Tex.App.2003); State v. Surge, 94 P.3d 345 , 2004 WL 1551561 , *7 (Wash.Ct.App. July 12, 2004).
57
By contrast, the Fourth and Fifth Circuits, a Seventh Circuit Judge, numerous federal district courts, and a variety of state courts have approved compulsory DNA profiling under a traditional assessment of reasonableness gauged by the totality of the circumstances. See Green, 354 F.3d at 680-81 (Easterbrook, J., concurring); Groceman v. U.S. Dep't of Justice, 354 F.3d 411, 413-14 (5th Cir.2004) (per curiam); Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003) (per curiam); Jones v. Murray, 962 F.2d 302 , 306-07 (4th Cir.1992); Nicholas v. Goord, 2004 WL 1432533 , *2-*6 (S.D.N.Y. Jun 24, 2004); United States v. Stegman, 295 F.Supp.2d 542, 548-50 (D.Md.2003); Padgett v. Ferrero, 294 F.Supp.2d 1338, 1343-44 (N.D.Ga.2003); United States v. Meier, No. CR97-72HA, 2002 U.S. Dist. LEXIS 25755 (D.Or.2002); United States v. Lujan, No. CR98-480-02HA, 2002 U.S. Dist. LEXIS 25754 (D.Or.2002); Shelton v. Gudmanson, 934 F.Supp. 1048 (W.D.Wis.1996); Kruger v. Erickson, 875 F.Supp. 583 (D.Minn.1995); Vanderlinden v. Kansas, 874 F.Supp. 1210 (D.Kan.1995); Sanders v. Coman, 864 F.Supp. 496 (E.D.N.C.1994); Ryncarz v. Eikenberry, 824 F.Supp. 1493 (E.D.Wash.1993); Landry v. Attorney General, 429 Mass. 336, 343-48 , 709 N.E.2d 1085 (1999); Gaines v. State, 116 Nev. 359 , 998 P.2d 166, 171-73 (2000); Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 779 (2000); Doles v. State, 994 P.2d 315, 317-20 (Wyo.1999); In re Maricopa County Juvenile Action, 187 Ariz. 419 , 930 P.2d 496, 500-01 (1996); People v. Adams, 115 Cal.App.4th 243 , 9 Cal.Rptr.3d 170, 180-84 (2004); L.S. v. State, 805 So.2d 1004 , 1006-07 (2001); People v. Calahan, 272 Ill.App.3d 293 , 208 Ill.Dec. 532 , 649 N.E.2d 588, 591-92 (1995); Cooper v. Gammon, 943 S.W.2d 699, 704-05 (Mo.Ct.App.1997); Surge, 94 P.3d 345 , 2004 WL 1551561 , *7 (Wash.Ct.App. July 12, 2004); cf. also United States v. Lifshitz, 363 F.3d 158 , 164 & 165 (2d Cir.2004), as amended, 369 F.3d 173 , 180 & 181 (explaining that Knights "[d]ispens[ed] with [the Court's] previous distinction between searches undertaken for probationary and for investigative purposes, and, with that distinction, the `special needs' justification articulated in Griffin for reducing the level of suspicion required for probationary searches," and concluding that "[p]robationary searches — whether for law enforcement or probationary purposes — are acceptable under Knights if based upon reasonable suspicion (or potentially a lesser standard)"). 25
58
Finally, we observe that our own 1995 decision in Rise v. Oregon, 59 F.3d 1556 (9th Cir.1995), upheld the constitutionality of a state DNA collection statute by applying a pure totality of the circumstances analysis. Our resolution of the methodological question, left open by Knights , therefore squarely implicates the legitimacy of our own precedent and its method.
III
59
While not precluding the possibility that the federal DNA Act could satisfy a special needs analysis, we today reaffirm the continuing vitality of Rise — and hold that its reliance on a totality of the circumstances analysis to uphold compulsory DNA profiling of convicted offenders both comports with the Supreme Court's recent precedents and resolves this appeal in concert with the requirements of the Fourth Amendment.
60
* As we have stressed, neither Edmond nor Ferguson condemns suspicionless searches of conditional releasees in the absence of a demonstrable "special need" apart from law enforcement. Indeed, Ferguson explicitly distinguished itself from cases addressing the constitutionality of parole and probation searches-thus recognizing a constitutionally significant distinction between searches of conditional releasees and searches of the general public, and laying the framework for a jurisprudentially sound analytic division between these two classes of suspicionless searches. See Ferguson, 532 U.S. at 79 n. 15, 121 S.Ct. 1281 ("[W]e agree with petitioners that Griffin is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large.") (citing Griffin, 483 U.S. at 874-75 , 107 S.Ct. 3164 ). 26 And Knights , of course, affirmed the post- Edmond, post- Ferguson possibility that conditional releasees' diminished expectations of privacy may be sufficient to justify the judicial assessment of a parole or probation search's reasonableness outside the strictures of special needs analysis. Knights, 534 U.S. 117 -18, 119-20 & n. 6, 122 S.Ct. 587 . 27
61
Of course, the mere possibility that suspicionless searches of conditional releasees may be sustainable under a pure totality of the circumstances analysis is insufficient to establish that such searches actually are sustainable under such analysis. We begin our resolution of the issue by taking note of the well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public. Quite to the contrary, the Court has recognized that "those who have suffered a lawful conviction" are properly subject to a "broad range of [restrictions] that might infringe constitutional rights in free society," McKune v. Lile, 536 U.S. 24, 36 , 122 S.Ct. 2017 , 153 L.Ed.2d 47 (2002), 28 in no small part due to the extraordinary rate of recidivism among offenders. See, e.g., Pa. Bd. of Prob. & Parole v. Scott , 524 U.S. 357, 365 , 118 S.Ct. 2014 , 141 L.Ed.2d 344 (1998); Knights, 534 U.S. at 120 , 122 S.Ct. 587 ; Griffin, 483 U.S. at 875 , 107 S.Ct. 3164 ; Crawford, 372 F.3d at 1069-71 (Trott, J., concurring); see also Ewing v. California, 538 U.S. 11, 25-27 , 123 S.Ct. 1179 , 155 L.Ed.2d 108 (2003); Parke v. Raley, 506 U.S. 20, 27 , 113 S.Ct. 517 , 121 L.Ed.2d 391 (1992) ("States have a valid interest in deterring and segregating habitual criminals."). Thus, conditional releasees may claim "only... conditional liberty properly dependent on observance of special parole restrictions" that extend "substantially beyond the ordinary restrictions imposed by law on an individual citizen." Morrissey, 408 U.S. at 478 & 480, 92 S.Ct. 2593 (1972); Scott, 524 U.S. at 365 , 118 S.Ct. 2014 ("[T]he State accords a limited degree of freedom in return for the parolee's assurance that he will comply with the often strict terms and conditions of his release. In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.").
62
These restrictions generally "are meant to assure that the [conditional release term] serves as a period of genuine rehabilitation and that the community is not harmed by the [releasee]'s being at large. These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed." Griffin, 483 U.S. at 875 , 107 S.Ct. 3164 (internal citations omitted). And whether they are initially legitimated as furthering a "special need," id. at 873-74, 107 S.Ct. 3164 , or recognized merely as serving the government's "`overwhelming interest' in ensuring that a [releasee] complies with those requirements and is returned to prison if he fails to do so," Scott, 524 U.S. at 365 , 118 S.Ct. 2014 (quoting Morrissey, 408 U.S. at 477 , 92 S.Ct. 2593 ), once such strictures are imposed and clearly noticed, they dramatically alter the relationship between the releasee and the government. For at bottom, they render all kinds of individual choices-choices that otherwise would be privately considered, privately determined, and privately undertaken-matters of legitimate government concern and investigation. As we recognized nearly thirty years ago:
63
The purposes of the parole system give the parole authorities a special and unique interest in invading the privacy of parolees under their supervision. In order to fulfill his dual responsibilities for helping the parolee to reintegrate into society and evaluating his progress, and for preventing possible further anti-social or criminal conduct by the parolee, it is essential that the parole officer have a thorough understanding of the parolee and his environment, including his personal habits, his relationships with other persons, and what he is doing, both at home and outside it. It is equally important that this information be kept up to date.... Many of the [accompanying] restrictions relate to matters which the [releasee] might otherwise be entitled to preserve as private.
64
Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir.1975) (en banc) (plurality opinion).
65
These transformative changes wrought by a lawful conviction and accompanying term of conditional release are well-recognized by the Supreme Court, which often has noted that conditional releasees enjoy severely constricted expectations of privacy relative to the general citizenry — and that the government has a far more substantial interest in invading their privacy than it does in interfering with the liberty of law-abiding citizens. See, e.g., Knights, 534 U.S. at 119-20 , 122 S.Ct. 587 ; Ferguson, 532 U.S. at 79 n. 15, 121 S.Ct. 1281 ; Griffin, 483 U.S. at 874-75 , 107 S.Ct. 3164 ; see also Crawford, 372 F.3d at 1071 (Trott, J., concurring) ("Parolees ... are a discrete group that are a demonstrable menace to the safety of the communities into which they are discharged. Parolees have demonstrated by their adjudicated criminal conduct a capacity and willingness to commit crimes serious enough to deprive them of liberty. They have not yet finished serving their sentences in connection with which they do not enjoy a presumption of innocence. Moreover, their collective behavior while on parole demonstrates the truth of the axiom that past behavior is the best predictor of future behavior.").
66
We believe that such a severe and fundamental disruption in the relationship between the offender and society, along with the government's concomitantly greater interest in closely monitoring and supervising conditional releasees, is in turn sufficient to sustain suspicionless searches of his person and property even in the absence of some non-law enforcement "special need" — at least where such searches meet the Fourth Amendment touchstone of reasonableness as gauged by the totality of the circumstances.
67
Let us be clear: Our holding in no way intimates that conditional releasees' diminished expectations of privacy serve to extinguish their ability to invoke the protections of the Fourth Amendment's guarantee against unreasonable searches and seizures. Where a given search or class of searches cannot satisfy the traditional totality of the circumstances test, a conditional releasee may lay claim to constitutional relief-just like any other citizen. Further, and without regard to the outcome of any such analysis, we reiterate Judge Trott's recent observation that conditional releasees likewise "retain [ ] a right of privacy against government searches and seizures that are arbitrary, a right of privacy against searches and seizures that are capricious, and a right of privacy against searches and seizures that are harassing." Crawford, 372 F.3d at 1072 (Trott, J., concurring); cf. Skinner, 489 U.S. at 621-22 , 109 S.Ct. 1402 (noting that "[a]n essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents," and explaining that no warrant was required in the case at bar in part due to "the standardized nature of the tests and the minimal discretion vested in those charged with administering the [m]"). 29 These safeguards amply shelter the conditional releasee's residual expectation of, and entitlement to, privacy.
68
We also wish to emphasize the limited nature of our holding. With its alarmist tone and obligatory reference to George Orwell's 1984, Judge Reinhardt's dissent repeatedly asserts that our decision renders every person in America subject to DNA sampling for CODIS purposes, including "attendees of public high schools or universities, persons seeking to obtain drivers' licenses, applicants for federal employment, or persons requiring any form of federal identification, and those who desire to travel by airplane," post at 843-844, "political opponents," "disfavored minorities," post at 848, 30 "all newborns," post at 849, "passengers of vehicles," "arrestees," post at 864 — no, really, "the entire population." Post at 849. Nothing could be further from the truth — and we respectfully suggest that our dissenting colleague ought to recognize the obvious and significant distinction between the DNA profiling of law-abiding citizens who are passing through some transient status ( e.g., newborns, students, passengers in a car or on a plane) and lawfully adjudicated criminals whose proven conduct substantially heightens the government's interest in monitoring them and quite properly carries lasting consequences that simply do not attach from the simple fact of having been born, or going to public school, or riding in a car. See also Green, 354 F.3d at 679-81 (Easterbrook, J., concurring). 31
B
69
With this framework in mind, we can now appraise the reasonableness of the federal DNA Act's compulsory DNA profiling of qualified federal offenders. In evaluating the totality of the circumstances, we must balance the degree to which DNA profiling interferes with the privacy interests of qualified federal offenders against the significance of the public interests served by such profiling. See Brown v. Texas, 443 U.S. 47, 50-51 , 99 S.Ct. 2637 , 61 L.Ed.2d 357 (1979).
70
* As we have recognized, supra at 821 n. 15, compulsory blood tests implicate the individual's interest in bodily integrity — "a cherished value of our society." Schmerber v. California, 384 U.S. 757, 772 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966). Nonetheless, it is firmly established that "the intrusion occasioned by a blood test is not significant, since such `tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.' " Skinner, 489 U.S. at 625 , 109 S.Ct. 1402 (quoting Schmerber, 384 U.S. at 771 , 86 S.Ct. 1826 ); see also Winston, 470 U.S. at 762, 105 S.Ct. 1611 (observing "society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity"); Yin v. California, 95 F.3d 864, 870 (9th Cir.1996) (Reinhardt, J.) ("In today's world, a medical examination that does not include either a blood test or urinalysis would be unusual."). Indeed, the Supreme Court observed nearly 50 years ago that"[t]he blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same ... routine in becoming blood donors." Breithaupt v. Abram, 352 U.S. 432, 436 , 77 S.Ct. 408 , 1 L.Ed.2d 448 (1957). For parolees and supervised releasees especially — individuals who while in custody have been lawfully subject to much more severe intrusions of their corporeal privacy than a sterile blood draw conducted by a trained medical professional, and who therefore leave prison with substantially reduced sensitivities to such exposure-the DNA Act's compelled breach of their bodily integrity is all the less offensive. See Bell v. Wolfish, 441 U.S. 520 , 558-60 & n. 39, 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979) (upholding suspicionless body cavity searches of inmates during which male inmates "must lift [their] genitals and bend over to spread [their] buttocks for visual inspection [and wherein t]he vaginal and anal cavities of female inmates also are visually inspected").
71
At the same time, the 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). For, as we recognized in Rise , "[o]nce a person is convicted of one of the felonies included as predicate offenses under [the DNA Act], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling." 59 F.3d at 1560 ; see also Groceman, 354 F.3d at 413-14 ; Jones, 962 F.2d at 306-07. 32
72
Both Kincade and his supporting amici passionately protest that because the government does not destroy blood samples drawn for DNA profiling and because such samples therefore conceivably could be mined for more private information or otherwise misused in the future, any presently legitimate generation of DNA profiles is irretrievably tainted by the prospect of far more consequential future invasions of personal privacy. 33 Judge Reinhardt's dissent likewise maintains that in light of the "nightmarish" possibilities CODIS portends, post at 851, we must act immediately to halt the program-before the wolf enters the fold, rather than after. Post at 844.
73
The concerns raised by amici and by Judge Reinhardt in his dissent are indeed weighty ones, and we do not dismiss them lightly. But beyond the fact that the DNA Act itself provides protections against such misuse, 34 our job is limited to resolving the constitutionality of the program before us, as it is designed and as it has been implemented. 35 In our system of government, courts base decisions not on dramatic Hollywood fantasies, cf. post at 851, but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an assessable record. If, as Kincade's aligned amici and Judge Reinhardt's dissent insist, and when, some future program permits the parade of horribles the DNA Act's opponents fear — unregulated disclosure of CODIS profiles to private parties, genetic discrimination, state-sponsored eugenics, and (whatever it means) the use of CODIS somehow "quite literally, to eliminate political opposition," post at 847 — we have every confidence that courts will respond appropriately. As currently structured and implemented, however, the DNA Act's compulsory profiling of qualified federal offenders can only be described as minimally invasive — both in terms of the bodily intrusion it occasions, and the information it lawfully produces. 36
2
74
In contrast, the interests furthered by the federal DNA Act are undeniably compelling. By establishing a means of identification that can be used to link conditional releasees to crimes committed while they are at large, compulsory DNA profiling serves society's" `overwhelming interest' in ensuring that a parolee complies with th[ ]e requirements [of his release] and is returned to prison if he fails to do so." Scott, 524 U.S. at 365 , 118 S.Ct. 2014 (quoting Morrissey, 408 U.S. at 483 , 92 S.Ct. 2593 ). The deterrent effect of such profiling, 37 see, e.g., Roe, 193 F.3d at 79 ; Rise, 59 F.3d at 1561 & n. 4; Jones, 962 F.2d at 311, similarly fosters society's enormous interest in reducing recidivism. As Judge Trott highlighted in his Crawford concurrence, rates of re-arrest among parolees and probationers are astounding, 372 F.3d at 1069-70 (Trott, J., concurring); the Supreme Court, too, has frequently stressed the pressing need to reduce recidivism among the offender population. See, e.g., Ewing, 538 U.S. at 25-27 , 123 S.Ct. 1179 ; Smith v. Doe, 538 U.S. 84, 103 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003); McKune, 536 U.S. at 32-33 , 122 S.Ct. 2017 ; Knights, 534 U.S. at 120 , 122 S.Ct. 587 ; Griffin, 483 U.S. at 875, 876, 878, 880 , 107 S.Ct. 3164 . Finally, by contributing to the solution of past crimes, DNA profiling of qualified federal offenders helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large. Together, the weight of these interests is monumental. 38
75
These interests also are intimately related to the core purposes of conditional release: rehabilitating convicted offenders and sheltering society from future victimization. See Knights, 534 U.S. at 119 , 122 S.Ct. 587 ; Scott, 524 U.S. at 365 , 118 S.Ct. 2014 ; Griffin, 483 U.S. at 875 & 880, 107 S.Ct. 3164 ; see also United States v. Jackson, 189 F.3d 820, 824 (9th Cir.1999). As a deterrent, DNA profiling can help to steer conditional releasees toward law-abiding lives as productive members of our society, fostering the rehabilitative goal of our systems of conditional release. Such profiling likewise helps protect the society into which offenders are conditionally released by reducing crime attributable to the operation of limited release programs like probation and parole. Rise, 59 F.3d at 1561 . And by laying a foundation for solving those crimes that are not successfully deterred by the collection of DNA profiles, the DNA Act both provides a means to monitor such individuals' compliance with the terms of their release — see supra at 817-818 n.3 — and helps minimize the pain and suffering recidivist offenders sow in our communities.
3
76
In light of conditional releasees' substantially diminished expectations of privacy, the minimal intrusion occasioned by blood sampling, and the overwhelming societal interests so clearly furthered by the collection of DNA information from convicted offenders, we must conclude that compulsory DNA profiling of qualified federal offenders is reasonable under the totality of the circumstances. 39 Therefore, we today realign ourselves with every other state and federal appellate court to have considered these issues-squarely holding that the DNA Act satisfies the requirements of the Fourth Amendment.
IV
77
Because compulsory DNA profiling conducted pursuant to the federal DNA Act would have occasioned no violation of Kincade's Fourth Amendment rights, the judgment and accompanying sentence of the district court are
78
AFFIRMED.
Notes:
1
As enumerated by the initial terms of the DNA Act, these "qualifying federal offenses" included murder, voluntary manslaughter, aggravated assault, sexual abuse, child abuse, kidnapping, robbery, burglary, arson, and any attempt or conspiracy to commit such crimes See 42 U.S.C. § 14135a(d)(1). With passage of the PATRIOT Act, Pub.L. No. 107-56, § 503 , 115 Stat. 272 , 364 (2001), acts of terrorism (as defined in 18 U.S.C. 2332b(g)(5)(B)) and additional crimes of violence (as defined in 18 U.S.C. § 16 ) have been added to the ranks of qualifying federal offenses. See 42 U.S.C. § 14135a(d)(2). A complete list of qualifying federal offenses can be found at 28 C.F.R. § 28.2 .
Although the federal offender provisions of the DNA Act are most relevant here, we note that the Act reaches beyond the federal arena. Subsidiary provisions provide for collection and storage of DNA information from offenders subject to the jurisdiction of the District of Columbia, 42 U.S.C. § 14135b, and the Armed Forces, 10 U.S.C. § 1565 . The Act also appropriates $170 million to support state efforts to collect and to store DNA profiles from state offenders and crime scene evidence. 42 U.S.C. §§ 14135 (a) & (j). Partially as a result, every state in the Union now operates a DNA collection program. A regularly-updated summary of state DNA legislation can be found at .
2
Federal "parole" was largely abolished and replaced with "supervised release" by the Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 212 (a)(2), 98 Stat. 1837 , 1999 (1984) See 18 U.S.C. § 3583 ; see also Johnson v. United States, 529 U.S. 694, 696-97 , 120 S.Ct. 1795 , 146 L.Ed.2d 727 (2000) (citing Gozlon-Peretz v. United States, 498 U.S. 395, 400-01 , 111 S.Ct. 840 , 112 L.Ed.2d 919 (1991)). However, because ex post facto concerns would arise if the statutory framework governing supervised release were retroactively applied to persons sentenced under the prior sentencing-and-parole scheme, cf. United States v. Paskow, 11 F.3d 873, 883 (1993), Congress has thrice extended the federal parole system for individuals sentenced for offenses committed before November 1, 1987. See 18 U.S.C. § 3551 note (documenting extensions). The primary difference between these types of conditional release is that the former follows a term of imprisonment rather than shortening one.
Our cases have not distinguished between parolees, probationers, and supervised releasees for Fourth Amendment purposes. United States v. Harper, 928 F.2d 894 , 896 n. 1 (9th Cir.1991) (Kozinski, J.); see also Griffin v. Wisconsin, 483 U.S. 868, 873-74 , 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987); Green v. Berge, 354 F.3d 675, 680 (7th Cir.2004) (Easterbrook, J., concurring); United States v. Hill, 967 F.2d 902, 909 (3d Cir.1992); cf. United States v. Woodrup, 86 F.3d 359 , 361-62 & n. 4 (4th Cir.1996) (analogizing parole, probation, and supervised release); United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993) (treating parole and probation search conditions alike and applying them to pre-sentence release conditions); United States v. Marmolejo, 915 F.2d 981, 982 (5th Cir.1990) (describing revocations of parole, probation, and supervised release as "constitutionally indistinguishable"); but see United States v. Crawford, 372 F.3d 1048, 1076-1077 (9th Cir.2004) (en banc) (Kleinfeld, J., concurring) (proposing a distinction).
3
Accordingly, qualified federal offenders on probation or supervised release who refuse to submit to DNA sampling under the Act also breach two mandatory conditions of their probation or parole: that they shall not commit an additional federal, state, or local offense, see 18 U.S.C. §§ 3563 (a)(1) & 3583(d); see also U.S.S.G. §§ 5B1.3(a)(1) & 5D1.3(a)(1), and, of course, that they submit to DNA sampling. See 18 U.S.C. §§ 3563 (a)(9) & 3583(d); see also U.S.S.G. §§ 5B1.3(a)(10) & 5D1.3(a)(8). In turn, violation of the terms of one's probation or supervised release authorizes the sentencing court to revoke or to extend the conditions of his or her release. See 18 U.S.C. §§ 3564 (d)-(e), 3565(a) & 3583(e)(2)-(3).
4
While this common figurative phrase conjures a useful image of DNA profiling to the extent that it evokes the biological uniqueness of human beings, it is technically misleading in the present context: DNA profiling for these purposes records non-genic variations coded into the building blocks of life. See Nat'l Comm. for the Future of DNA Evidence, Nat'l Inst. of Justice, U.S. Dep't of Justice, The Future of Forensic DNA Testing 35, Nov. 2000, available at http:// www.ncjrs.org/pdffiles1/nij/183697.pdf (last visited May 14, 2004) [hereinafter Future of Forensic DNA Testing ].
5
The term allele often is used to refer to a genic variant responsible for producing a particular trait. The National Commission on the Future of DNA Evidence provides the following illustrative example:
[A] specific allele of a particular gene is responsible for the enzyme that converts the amino acid phenylalanine into tyrosine. When this enzyme is missing or abnormal, the child develops the disease, phenylketonuria, or PKU. The result is severe mental retardation unless the child is treated; happily, with a specific diet the child develops normally. A child will develop PKU only if both representatives of the appropriate chromosome pair carry the abnormal allele. If there is only one PKU allele and the other is normal, the child will be normal; the amount of enzyme produced by a single normal allele is enough.
Future of Forensic DNA Testing 11. Because nearly 97 percent of DNA is non-genic, and because those "regions show the same genetic variability that genes do, in fact usually more[,]... the words commonly used for describing genes (e.g., allele...) are carried over to [non-genic] DNA regions...." Id. at 12 .
6
Recent studies have begun to question the notion that junk DNA does not contain useful genetic programming material. W. Wayt Gibbs, The Unseen Genome: Gems Among the Junk, Sci. Am., Nov. 2003, at 29.
7
In addition, because DNA characteristics are transmitted intergenerationally, it is "quite [possible to] identify a person who is a relative of the person contributing the [DNA] sample." Id. at 35 . Indeed, shortly after this en banc case was taken under submission, police in Grand Rapids, Michigan discovered that DNA evidence taken from a rape kit matched that of an incarcerated prisoner previously convicted of sexual assault — only to discover that the apparent DNA contributor had a twin brother who also was previously convicted of sexual assault and who was present in the area of the rape in question at the time of its commission. Assoc. Press, DNA of Suspect's Twin Key in Rape Case, May 14, 2004. Authorities are currently seeking to determine whether the twins are identical, in which case their DNA would be indistinguishable, or fraternal, in which case police could clear the late-discovered twin. Id.
8
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 personnel associated with the analysis. H.R.Rep. No. 106-900(I) at *27
9
Currently, 49 states, the U.S. Army, the Bureau, and Puerto Rico share DNA profiles through CODIS. The lone exception among the states is Mississippi See Federal Bureau of Investigation, NDIS Participants, available at http://www.fbi.gov/hq/lab/codis/partstates.htm (last visited May 11, 2004). One noteworthy consequence of linking these independently-developed databases is that CODIS currently stores DNA profiles taken from individuals who have been convicted of a substantially broader array of offenses than the qualifying federal offenses enumerated in 42 U.S.C. § 14135a(d) and 28 C.F.R. § 28.2 . Indeed, many state programs reach well beyond the federal model-some collecting information from non-violent drug offenders, and others requiring samples from persons convicted of simple misdemeanors. At least three states-Louisiana, Texas, and Virginia-currently collect DNA samples from certain arrestees, and a pending California initiative would require the immediate, prospective collection of DNA information from adults arrested for enumerated felonies, and within five years of enactment, any felony. La.Rev.Stat. § 15:602 (2004); Tex. Gov't Code § 411.1471(a)(2) (2004); Va.Code Ann. § 19.2-310.2:1 (2004); see also State of Cal., Office of the Attorney Gen., Active Measures, available at http:// www.caag.state.ca.us/initiatives/pdf/sa2003rf0065.pdf (last visited May 11, 2004).
In light of these widely varying measures, it is therefore particularly important to observe that we deal here solely with the legality of requiring compulsory DNA profiling of qualified federal offenders on conditional release. We express no opinion on the authority of the federal government or the states to pass less narrowly tailored legislation. Cf. Green, 354 F.3d at 679-81 (Easterbrook, J., concurring) (explaining that the DNA profiling of convicted offenders in custody and on conditional release "does not present the question whether DNA could be collected forcibly from the general population").
10
Based on apparent suspicions that he had been involved in illegal activity, Kincade was discharged from the treatment program on October 19, 2001. But subsequent investigation by his probation officer revealed no evidence that Kincade had actually engaged in any illegal conduct, and the district court approved the Officer's recommendation that no action be taken
11
Both 18 U.S.C. § 2113 and 18 U.S.C. § 924 are qualifying federal offenses for DNA Act purposes See C.F.R. § 28.2(a).
12
Therefore, we need not address the free exercise issues potentially raised by an application of the DNA Act to persons holding sincere religious objections. Likewise, because Kincade makes no such claim-and although the answer seems fairly obvious to us-we need not address whether use of CODIS "to repress dissent or, quite literally, to eliminate political opposition," post at 848, or "to monitor, intimidate, and incarcerate political opponents and disfavored minorities," post at 848, would comport with other constitutional limitations on governmental authority, such as the First, Fifth, and Fourteenth Amendments.
13
On appeal, Kincade raises only Fourth Amendment objections to the Act
14
Our review of a federal statute's constitutionality is de novo. See, e.g., United States v. McCoy, 323 F.3d 1114, 1117 (9th Cir.2003); United States v. Cortes, 299 F.3d 1030, 1032 (9th Cir.2002).
15
The compulsory extraction of blood for DNA profiling unquestionably implicates the right to personal security embodied in the Fourth Amendment, and thus constitutes a "search" within the meaning of the Constitution See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989) ("We have long recognized that a compelled intrusion into the body for blood to be analyzed for alcohol content must be deemed a Fourth Amendment search.") (quotation omitted); see also Winston v. Lee, 470 U.S. 753, 760 , 105 S.Ct. 1611 , 84 L.Ed.2d 662 (1985); Schmerber v. California, 384 U.S. 757, 767-68 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966). Of course, the fact that such extraction constitutes a search is hardly dispositive, as "the Fourth Amendment does not proscribe all searches and seizures...." Skinner, 489 U.S. at 619 , 109 S.Ct. 1402 .
16
See United States v. Ramsey, 431 U.S. 606, 616 , 97 S.Ct. 1972 , 52 L.Ed.2d 617 (1977) ("[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border."); see also United States v. Flores-Montano, 540 U.S. ___ , 124 S.Ct. 1582 , 158 L.Ed.2d 311 (2004); United States v. Montoya de Hernandez, 473 U.S. 531 , 105 S.Ct. 3304 , 87 L.Ed.2d 381 (1985).
17
See Hudson v. Palmer, 468 U.S. 517, 526 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1983) ("[S]ociety is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell.... [A]ccordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.").
18
See, e.g., Chandler v. Miller, 520 U.S. 305, 323 , 117 S.Ct. 1295 , 137 L.Ed.2d 513 (1997) ("[W]herethe risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as `reasonable' — for example, searches now routine at airports and at entrances to courts and other official buildings."); see also United States v. Edwards, 498 F.2d 496, 500 (2d Cir.1974) ("When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.") (quoting United States v. Bell, 464 F.2d 667, 675 (2d Cir.1972) (Friendly, C.J., concurring)).
19
Compare City of Indianapolis v. Edmond, 531 U.S. 32, 37 , 121 S.Ct. 447 , 148 L.Ed.2d 333 (2000) ("We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct...."), with New York v. Burger, 482 U.S. 691, 702 , 107 S.Ct. 2636 , 96 L.Ed.2d 601 (1987) (grouping inspections of closely-regulated businesses with "other situations of `special need'") (quoting New Jersey v. T.L.O., 469 U.S. 325, 353 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring)).
20
At various points, Griffin explained that the focus of conditional release is controlling criminal recidivism-that is, the ordinary commission of ordinary crimes by ordinary criminals. See, e.g., 483 U.S. at 875 , 107 S.Ct. 3164 ("[R]estrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large."); id. ("[M]ore intensive supervision can reduce recidivism...."); id. at 876, 107 S.Ct. 3164 ("[T]he delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct...."); id. at 878, 107 S.Ct. 3164 ("[A] probable-cause requirement would reduce the deterrent effect of the supervisory arrangement. The probationer would be assured that so long as his illegal (and perhaps socially dangerous) activities were sufficiently concealed as to give rise to no more than reasonable suspicion, they would go undetected and uncorrected."); id. at 880, 107 S.Ct. 3164 ("[T]he probationer is in need of rehabilitation and is more likely than the ordinary citizen to violate the law....").
21
In a footnote, the Court explained: "We italicize those words lest our reasoning be misunderstood. In none of our previous special needs cases have we upheld the collection of evidence for criminal law enforcement purposes. Our essential point is [that] the extensive entanglement of law enforcement cannot be justified by reference to legitimate needs." Id. at 83 n. 20, 121 S.Ct. 1281 (citations omitted).
22
As a matter of fact, Knights does not even mention Ferguson , and it references Edmond only once-and purely in passing. Id. at 122, 122 S.Ct. 587 .
23
Judge Reinhardt's dissent claims we confuse the result of a special needs analysis with its trigger: "The departure from the warrant-and-probable cause regime of the Fourth Amendment is not what triggers a special needs analysis; that departure is the result of a special needs analysis in which the Court finds a valid programmatic purpose to the search regime-a purpose apart from law enforcement needs." Post at 863 n.23. The problem with this view is that courts look for a special need apart from law enforcement needs only after the government has executed some challenged search without first obtaining a warrant supported by probable cause. The Court's resort to special needs analysis in such cases is the product of that failure, and it has applied such analysis even in warrantless search cases where there was reasonable suspicion, like Griffin and T.L.O.
Contrary to Judge Reinhardt's charge, this understanding is compatible with the Court's decisions in Maryland v. Buie, 494 U.S. 325 , 110 S.Ct. 1093 , 108 L.Ed.2d 276 (1990) ("protective sweeps"), Chimel, 395 U.S. at 752 , 89 S.Ct. 2034 (searches incident to arrest), and Terry, 392 U.S. at 1 , 88 S.Ct. 1868 (pat-down searches). Cf. post at 863 n.23. As we already have explained, the Court has justified each of those searches with reference to non-law enforcement goals-primarily officer safety. See supra at 822-823; see also Buie, 494 U.S. at 327 , 110 S.Ct. 1093 ("A `protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. ") (emphasis added). Given its eagerness to eschew "manufactur[ing] neat categories with clever names," post at 853, and preference for grouping all warrantless searches "into one large category of cases involving `special needs,'" id., it is odd that Judge Reinhardt's dissent does not recognize that these searches — which generally are conducted with some level of suspicion, but ultimately are justified by reference to a non-law enforcement goal — are easily reconciled with our understanding of the special needs doctrine.
24
We recently were presented with an opportunity to address the question left open by Knights. At issue in United States v. Crawford, 372 F.3d 1048 (9th Cir.2004) (en banc), was the constitutionality of a suspicionless search conducted pursuant to a standard California probation and parole term almost identical to the one at issue in Knights. However, we did not resolve whether the search was constitutional. Over the objection of five judges, see id. at 1062 (Trott, J., concurring), we instead "assume[d] for purposes of our decision, but need[ed] not and d[id] not decide, that the parole search was unlawful," id. at 1053 (majority opinion), and resolved the case based solely on an attenuation analysis pursuant to New York v. Harris, 495 U.S. 14 , 110 S.Ct. 1640 , 109 L.Ed.2d 13 (1990). Id. at 1054-59.
25
To our knowledge, only two judges — besides, of course, the majority of the three-judge panel that first heard this case, see United States v. Kincade, 345 F.3d 1095 , vacated and reh'g en banc granted, 354 F.3d 1000 (9th Cir.2004) — have invalidated DNA collection statutes. United States v. Miles, 228 F.Supp.2d 1130, 1135-40 (E.D.Cal.2002); Maryland v. Raines , Montgomery County Circuit Court Criminal Case No. 98303 (January 28, 2004), summarily vacated with published opinion to follow, — 853 A.2d 784 , 2004 WL 1558114 (Md. July 13, 2004).
26
In his Ferguson dissent, Justice Scalia cited Griffin (a decision he authored) — pointedly observing that the search in that case was spurred by information provided to Griffin's probation officer by the police and that the probation officers who conducted the search of Griffin's residence were accompanied by police officers — in support of the proposition that "special-needs doctrine was developed, and is ordinarily employed, precisely to enable searches by law enforcement officials who, of course, ordinarily have a law enforcement objective." 532 U.S. at 100 , 121 S.Ct. 1281 (Scalia, J., dissenting) (emphasis in original). The Ferguson majority's identification of a constitutionally significant distinction between the expectations of privacy enjoyed by probationers and those of ordinary citizens was thus the crucial feature of its response to Justice Scalia's claim-that the presence of a law enforcement objective is not fatal to a search assessed under a special needs analysis. Compare id. at 79 n. 15, 121 S.Ct. 1281 with id. at 100-02 , 121 S.Ct. 1281 (Scalia, J., dissenting).
Judge Reinhardt's dissent, post at 859-60 n. 20, misreads this exchange between the Ferguson majority and dissent — in no small part because it overlooks the facts of Griffin , where (to reiterate), police had initiated contact with the probation office, encouraged probation officers to search Griffin's residence, accompanied them during the search, and processed the evidence produced by the search, where it then was used not merely to revoke Griffin's probation, but was turned over to the district attorney's office in order to prosecute Griffin on new charges. See Griffin, 483 U.S. at 870-72 , 107 S.Ct. 3164 . Perhaps we are missing something, but this seems to be precisely the kind of "entangl[ing] probation officers with normal law enforcement officers in a collective effort to investigate, solve, and prosecute crimes" that Judge Reinhardt's dissent claims is forbidden by Ferguson. Post at 859-60 n. 20. Yet the whole point of Ferguson's having explicitly distinguished Griffin was to harmonize the two cases — not overrule the latter: " Griffin is properly read as limited...." Ferguson, 532 U.S. at 79 n. 15, 121 S.Ct. 1281 .
27
A substantial portion of Judge Reinhardt's dissent is devoted simply to establishing that the Supreme Court has never expressly authorized suspicionless, arguably law enforcement-oriented searches of conditional releasees. As we have demonstrated, the Court also has expressly declined to condemn such searches. This common occurrence — the Supreme Court's not yet having squarely resolved a legal question — is why we have a case to decide, and we are heartened by Judge Reinhardt's recognition that there is a good reason why we are sitting en banc
To the extent Judge Reinhardt's dissent's refrain of "never," post at 843, 854, 855, 862, 869-70, is intended to support its challenge to the DNA Act's constitutionality, we note again that the Supreme Court rejected that peculiar logic in Knights — while reversing, incidentally, a decision Judge Reinhardt had joined, see United States v. Knights, 219 F.3d 1138 (9th Cir.2000). See supra at 827 (discussing and quoting Knights, 534 U.S. at 117-18 , 122 S.Ct. 587 ). In the spirit of Knights, we note that Judge Reinhardt's suggestion — that the Court's failure as yet explicitly to sanction suspicion-less searches of conditional releasees somehow implicitly holds such searches unconstitutional — is as logically dubious as it is contrary to Knights's express statement that the Court needed "not decide whether the probation condition so diminished, or completely eliminated, Knights's reasonable expectation of privacy ... that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment." Id. at 120 n. 6, 122 S.Ct. 587 .
28
In Morrissey v. Brewer, the Supreme Court observed:
Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to the parole officer to whom they are assigned and sometimes they must make periodic written reports of their activities.
408 U.S. 471, 478 , 92 S.Ct. 2593 (1972) (citing Arluke, A Summary of Parole Rules-Thirteen Years Later, 15 Crime & Delinq. 267, 272-273 (1969)). More contemporary parole and probation restrictions can be found in U.S.S.G. §§ 5B1.3 & 5D1.3.
Beyond these restrictions, parolees and probationers convicted of serious crimes are denied the right to vote by most states. See The Sentencing Project, Felony Disenfranchisement Laws in the United States 1, 3, avail able at http://www.sentencingproject.org/pdfs/1046.pdf (last visited May 24, 2004) (noting that 31 states deny the franchise to felons on probation and that 35 states deny the franchise to felons on parole). In addition, their Second Amendment rights are severely limited. See, e.g., 18 U.S.C. § 922 (g)(1) ("It shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.") (enumeration omitted).
29
We also note, as Judge Trott has, that conditional releasees remain entitled to other basic protections:
Should the manner in which such a search or seizure[i]s conducted shock the conscience of our community's sense of decency and fairness, or [be] so brutal and offensive that it d[oes] not comport with traditional ideas of fair play and decency, then the exclusionary rule [and] 28 U.S.C. § 1983 would provide both remedy and redress.
Id. at 1072 (quotations and enumeration omitted).
30
But see supra at 819 n. 9.
31
Indeed, our cases already recognize such distinctions. As we noted in Rise:
The gathering of fingerprint evidence from "free persons" constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. Nevertheless, everyday "booking" procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.
Rise, 59 F.3d at 1559-60 (citations and parentheticals omitted). Of course, the distinction Rise identified is even greater in this case, as the DNA Act implicates only the rights of convicted felons — not "free persons or even mere arrestees." Id. at 1560 .
32
Kincade's response to this argument — that virtually all free persons have been required to give up evidence of their identity at some point in time, yet may still legitimately claim exemption from compulsory DNA testing — misses the mark. Those who have suffered a lawful conviction lose an interest in their identity to a degree well-recognized as sufficient to entitle the government permanently to maintain a verifiable record of their identity; not merely sporadically to demand its production under independently lawful conditions
33
Amicus Public Defender for the District of Columbia, for instance, starkly warns that the government's storage of samples allows it to "retain[ ] the personal medical information of thousands of its citizens, potentially retaining access to those citizens' biological secrets for however long, and to whatever end, state authorities see fit." Amicus Protection & Advocacy, Inc., cautions "it is inevitable that as technology advances, at some point, [DNA samples] will be used for other purposes without the consent or knowledge of the individual tested." And amicus Electronic Privacy Information Center predicts that "soon, if not already, scientists will request access to what would serve as [a] preexisting goldmine of DNA data for their research."
34
See 42 U.S.C. §§ 14132 (b)(3) (strictly limiting the permissible uses of DNA profiles and stored samples) & 14135e (providing criminal penalties for those who improperly disclose or receive DNA profiles or stored samples).
35
In particular, we pause to note here that we express no opinion on the legality — constitutional or otherwise — of the so-called "DNA dragnets" cited by Kincade, his aligned amici, and Judge Reinhardt's dissent
36
Beyond these factors, we note that conditional releasees are clearly informed of the condition requiring them to submit to compulsory DNA profiling, thus further reducing any expectation of privacy they otherwise may enjoy and further minimizing the intrusiveness of the search See Knights, 534 U.S. at 119-20 , 122 S.Ct. 587 ("The probation order clearly expressed the search condition and Knights was unambiguously informed of it. The probation condition thus significantly diminished Knights' reasonable expectation of privacy.").
37
Kincade argues that the deterrent theory of DNA profiling rests on a logical fallacy: that potential criminals will be thinking seriously enough about the implications of DNA profiling for their actions that they might be deterred from committing a crime, but not thinking seriously enough "to realize that they are safe as long as they avoid leaving DNA evidence at the scene." In fact, he claims, the deterrent theory is especially "far fetched" because recidivists' knowledge that the authorities have their fingerprints does not seem to deter them from committing additional crimes
The problem with this suggestion is that, unlike fingerprint evidence (which can be effectively masked by wearing gloves), there is no simple way to avoid leaving DNA evidence at the scene of a crime. Just as DNA permeates blood, semen, and saliva, it is recoverable from hair and epidermal cells — which even the most sophisticated criminals cannot help but leave behind. Techniques first developed in Britain have allowed scientists to generate DNA profiles from just 30-50 cells' worth of genetic material, and a new crime lab planned for New York City expects to generate profiles culled from as little as 6 cells' worth of genetic material collected at the scene of nearly every crime committed in the city-including all-too common non-violent property offenses like home burglaries and auto thefts. See Shaila K. Dewan, As Police Extend Use of DNA, a Smudge Could Trap a Thief, N.Y. Times, May 26, 2004.
38
We might further observe that the CODIS database can help absolve the innocent just as easily as it can inculpate the guilty. For while it undoubtedly is true that the wrongly-accused can voluntarily submit to DNA testing should the need arise, use of CODIS promptly clears thousands of potential suspects — thereby preventing them from ever being put in that position, and "advancing the overwhelming public interest in prosecuting crimes accurately, " Rise, 59 F.3d at 1561 (emphasis in original), and expeditiously.
39
We note that the universal application of DNA profiling to qualified federal offenders precludes any claim that any particular searches carried out pursuant to the Act are arbitrary, capricious, or harassing See supra at 834-835; see also Crawford, 372 F.3d at 1072 (Trott, J., concurring). As we recognized in Rise , this is a case in which "the evenhandedness of [the] statute contributes to its reasonableness," 59 F.3d at 1561 , "by ensuring that blood extractions will not be ordered randomly or for illegitimate purposes." Id. at 1562 .
GOULD, Circuit Judge, concurring:
79
I agree with the majority that Thomas Kincade's conviction should be affirmed. I write separately because I believe that we should affirm under a "special needs" theory rather than the totality of the circumstances theory. I further pose a caveat on the limits of what we can properly decide today.
80
* The majority affirms based on extension of United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001), and does not reach the issue whether the Supreme Court's "special needs" doctrine sustains the search. I would affirm based on the "special needs" of monitoring convicts on supervised release and deterring their possible recidivism. Each method of analysis has support in Supreme Court doctrine and support from our sister circuits. But in my view it would be better to follow the special needs approach because with it extant precedents control. Griffin v. Wisconsin, 483 U.S. 868 , 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987), held that state parolees may be subject to a warrantless search based on a special needs theory. Ferguson v. City of Charleston, 532 U.S. 67 , 81 n. 15, 121 S.Ct. 1281 , 149 L.Ed.2d 205 (2001) harmonized Griffin in the context of a suspicionless search. Thus the Supreme Court has shown that the special needs doctrine permits the search in this case. 1
81
The deterrent felt by a person on supervised release who must participate in the DNA program and the CODIS database serves the special needs of a supervised release system. Stated succinctly, the DNA program is likely to deter future crime of the supervised releasee because it increases the chance that a person on supervised release will be caught if he or she commits a new crime. Stated another way, the Supreme Court's reluctance to apply special needs analysis to endorse warrantless searches aimed at general law enforcement cautions against applying this doctrine to general law enforcement aimed at past crime. It does not mean that special needs analysis cannot be applied to DNA collection from those on supervised release with the purposes to deter future crime, to give a tool to avoid consecutive or repetitive crime on supervised release, and, when such crime occurs, to let law enforcement act to return the releasee to prison custody as soon as practicable. These goals lie at the heart of supervised release, which properly aims at reintegration of the releasee through deterrence. This special need of supervised release looks forward to crime in the future while the felon is on supervised release; any use of the CODIS database to solve past crimes is incidental to the special and forward-looking penalogical need that justifies the program. 2 That such deterrence is a special need permitting suspicionless searches of parolees has been cogently advanced by Judge Trott in his concurring opinion in United States v. Crawford, 372 F.3d 1048, 1066-1077 (9th Cir.2004) (Trott, J., concurring). As applied in the context of DNA extraction, this theory of special need has been adopted by three of our sister circuits. See Green v. Berge, 354 F.3d 675, 679 (7th Cir.2004); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003); Roe v. Marcotte, 193 F.3d 72, 79-82 (2d Cir.1999); see also Opinion of Judge O'Scannlain at 830-831 (listing other courts that have reached this conclusion).
82
Finding these authorities most persuasive, I reach the same conclusion as the majority, and I concur in the judgment.
II
83
I also write to emphasize what we do not decide today. Thomas Kincade is now on supervised release, and was in that status when his DNA was demanded. While he is on supervised release, there is a special need to have his DNA extracted and stored in the CODIS database. This serves the penalogical purpose of deterring him from committing a new crime while on supervised release, and of course it will also aid in catching him if he does so notwithstanding. What we do not have before us is a petitioner who has fully paid his or her debt to society, who has completely served his or her term, and who has left the penal system. In that case, the special need that I identify to maintain the DNA is gone, but the record of the felon's DNA in the CODIS database is not. Once those previously on supervised release have wholly cleared their debt to society, the question may be raised, "Should the CODIS entry be erased?" Although it might seem counter-intuitive to law enforcement that a record once gleaned might be lost, there is a substantial privacy interest at stake. 3 In a proper case where this issue is presented, we would presumably need to weigh society's benefit from retention of the DNA records of a felon against that person's right, in a classical sense, to privacy. See generally Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193 (1890). In our age in which databases can be "mined" in a millisecond using super-fast computers, in which extensive information can, or potentially could, be gleaned from DNA (even the "junk" DNA currently used), and in which this data can easily be stored and shared by governments and private parties worldwide, the threat of a loss of privacy is real, even if we cannot yet discern the full scope of the problem. A related concern was voiced more than two decades ago, long before the advent of DNA profiling. See generally Arthur R. Miller, The Assault on Privacy 24-54 (1971). With monumental increases in technologies, Professor Miller's alarm about technology's assault on privacy must be seriously pondered. A nice question, if and when properly presented, would be whether DNA samples, though lawfully obtained from a felon on supervised release, may properly be retained by the government after the felon has finished his or her term and has paid his or her debt to society. 4 Once the special need for the DNA sample has gone, does the government have sufficient reason to retain the sample in order to overcome the felon's privacy interest? Kincade's case does not call upon us to answer this question. I express no view on the question of the future retention of a felon's DNA after supervised release is terminated, nor do I understand the majority opinion to express any view on this question.
Notes:
1
In Knights, the Supreme Court left open whether a suspicionless search of a parolee was reasonable under the Fourth Amendment's totality of the circumstances analysis. Knights, 534 U.S. at 120 n. 6, 122 S.Ct. 587 .
2
Judge Reinhardt in dissent at footnote 17 argues that even if deterrence of supervised releasees is the ultimate goal, the immediate objective of the search is to get evidence of past crime. I do not agree. Increasing the likelihood of solving future crime, a key purpose of the DNA Act, serves a deterrence goal at the heart of supervised release. The DNA Act was made applicable to those on supervised release, as opposed to the public at large, demonstrating a Congressional intent to ensure successful rehabilitation through deterrence. I do not grasp at a "special needs" straw to justify the search of Kincade; more precisely, I recognize the special need of supervised release that Congress has identified and that the Supreme Court has approved
Judge Reinhardt, with an advocate's flair, reads too much into the point I made, which he quotes, in my article co-authored with Dr. Simon Stern, entitled Catastrophic Threats and the Fourth Amendment, 77 S. Cal. L.Rev. 777, 814 & n. 160 (2004). That article takes a flexible approach to special needs doctrine that I think wholly consistent with my analysis here. While we there noted that the specific deterrence that indirectly arises from the prosecution of an ordinary criminal is not the main aim of a prosecution, our point there has no bearing on determining the controlling purposes of the DNA Act. The DNA Act applies only after a person has been prosecuted. Thus, unlike a prosecution, where the main goal is to vindicate the state's interest in law enforcement, DNA profiling a person on supervised release in my view is best seen as serving a different main goal. That goal, as I see it, is rehabilitation through deterrence.
Judge Reinhardt in his dissent also misses the mark in his all-or-nothing approach to the DNA Act in footnote 19. Because circumstances that arise when a releasee has completed supervised release and is no longer in the criminal justice system are not now before us, we cannot definitively discuss the legality of the DNA Act beyond its immediate application to Kincade in the case now presented. Indeed, outside of the First Amendment, we do not lightly entertain facial challenges to Congressional acts. See Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217 , 33 S.Ct. 40 , 57 L.Ed. 193 (1912) (generally precluding consideration of a statute's constitutionality as applied to the facts of other cases); Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and the Federal System 180-84 (5th ed.2003) (noting that the Supreme Court generally refuses to adjudicate facial challenges). The dissent errs by focusing overmuch on facts not here presented.
3
Fingerprints, of course, are routinely maintained in law enforcement files once taken, and perhaps this is an arguable analogy for DNA databases. But, unlike fingerprints, DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only more revealing in time. Like DNA, a fingerprint identifies a person, but unlike DNA, a fingerprint says nothing about the person's health, propensity for particular disease, race and gender characteristics, and perhaps even propensity for certain conduct
4
A similar issue might be raised by former soldiers who had a DNA sample taken for purposes of "identification of human remains," and who might be concerned to know that these DNA samples, though taken for use in identifying remains of fallen soldiers, now are routinely used in law enforcement investigations See Patricia A. Ham, An Army of Suspects: The History and Constitutionality of the U.S. Military's DNA Repository and Its Access for Law Enforcement Purposes, 2003-AUG Army Law. 1; 62 Fed.Reg. 51835, 51835 (Oct. 3, 1997). Possibly such a practice is justifiable under a balancing test, but in a proper case the privacy issues will be confronted. I express no view on the proper resolution of this question.
84
REINHARDT, Circuit Judge, with whom PREGERSON, KOZINSKI, and WARDLAW, Circuit Judges, join, dissenting:
85
"They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety." BENJAMIN FRANKLIN, HISTORICAL REVIEW of PENNSYLVANIA (1759).
86
Today this court approves the latest installment in the federal government's effort to construct a comprehensive national database into which basic information concerning American citizens will be entered and stored for the rest of their lives — although no majority exists with respect to the legal justification for this conclusion. 1 My colleagues claim to authorize merely the "compulsory DNA profiling of certain conditionally-released federal offenders," as authorized by the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), Pub.L. No. 106-546, 114 Stat. 2726 (2000). We would be lucky indeed if it were possible to so limit the effect of their opinions. For, under the rationales they espouse, especially the plurality's, all Americans will be at risk, sooner rather than later, of having our DNA samples permanently placed on file in federal cyberspace, and perhaps even worse, of being subjected to various other governmental programs providing for suspicionless searches conducted for law enforcement purposes.
87
Neither Supreme Court precedent nor any established rule of Fourth Amendment law supports today's plurality or concurring opinion. Never has the Court approved of a search like the one we confront today: a programmatic search designed to produce and maintain evidence relating to ordinary criminal wrongdoing, yet conducted without any level of individualized suspicion. Never has the Court approved of the government's construction of a permanent governmental database built from general suspicionless searches and designed for use in the investigation and prosecution of criminal offenses.
88
The approval of such a program carries with it all of the dangers inherent in allowing the government to collect and store information about its citizens in a centralized place. J. Edgar Hoover terrorized leaders of the civil rights movement by exploiting the information he collected in his files. Our government's surveillance and shameful harassment of suspected communists and alleged communist-sympathizers in the middle of the twentieth century depended largely on the centralization of information collected about countless numbers of non-communist members of our citizenry — often by means that violated the Fourth Amendment. The same was true of the Palmer Raids a few decades earlier and of our roundup of Japanese Americans and their placement in internment camps during World War Two. See generally Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L.Rev. 1083 (2002).
89
Even governments with benign intentions have proven unable to regulate or use wisely vast stores of information they collect regarding their citizens. The problem with allowing the government to collect and maintain private information about the intimate details of our lives is that the bureaucracy most often in charge of the information "is poorly regulated and susceptible to abuse. This [ ] has profound social effects because it alters the balance of power between the government and the people, exposing individuals to a series of harms, increasing their vulnerability and decreasing the degree of power that they exercise over their lives." Id. at 1105 . To allow such information to be collected through the compulsory extraction of blood from the bodies of non-consenting Americans runs contrary to the values on which this country was founded. My colleagues who endorse the judgment do so despite the fact that the search regime they approve, and the manner in which they approve it, encourages the very centralization of government authority that has repeatedly resulted in the sacrifice of our liberties in the name of law enforcement. Proper attention to constitutional doctrine and history would have led to a contrary result.
90
To justify the suspicionless searches authorized by the DNA Act, the plurality sweeps away the traditional Fourth Amendment requirement that law enforcement officials conduct searches only when predicated on some level of suspicion that the individual being searched has committed a crime. In place of this time-honored principle, the plurality has employed an opaque "totality of the circumstances" test. See ante at 832. It should come as no shock that under this malleable standard, my colleagues have concluded that the forcible extraction of blood samples from probationers and parolees, and the permanent maintenance of profiles constructed from those samples in a federal databank, is constitutionally reasonable. The "totality" of the circumstances relied upon by the plurality is as follows: Those who commit crimes have reduced expectations of privacy, ante at 834-835, and, because the forcible extraction of blood is a constitutionally insignificant invasion of privacy, ante at 836-837, and the weight of the government interest in DNA profiling "is monumental," ante at 839, suspicionless searches are constitutionally reasonable.
91
Under the test the plurality employs, any person who experiences a reduction in his expectation of privacy would be susceptible to having his blood sample extracted and included in CODIS — attendees of public high schools or universities, persons seeking to obtain drivers' licenses, applicants for federal employment, or persons requiring any form of federal identification, and those who desire to travel by airplane, to name just a few. Already, all members of the Armed Forces must submit to the involuntary extraction of blood for the purpose of providing DNA samples. Indeed, given the "monumental" government interest and the "insignificant" invasion of privacy described by the plurality, it is difficult to imagine that the balancing of interests it then performs would not justify the government's including data regarding all Americans in the system regardless of the level of the expectation of privacy they might possess. This is not what the Framers of our Constitution intended.
92
The sixth vote for the judgment is based on a narrower and far different legal theory — the more respectable "special needs" doctrine. Unfortunately, my respected colleague who opts for the special needs standard obliterates the distinction between law enforcement and non-law enforcement purposes and in so doing undermines the protections the Fourth Amendment is designed to afford, almost to the same extent as those in the plurality.
93
Thomas Jefferson once warned that "[t]he time to guard against corruption and tyranny is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered." THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 121 (William Peden ed., 1955). The plurality has failed to heed this warning, and instead opens the door to multifarious law enforcement programs involving suspicionless searches by employing a legal standard that imposes no significant limits on arbitrary and invasive government actions; in effect, the plurality simply asks us to trust those in power. The rationale employed in the concurring opinion, while more obedient to traditional legal concepts, would in the end likely result in a similar elimination of constitutional restraints on the excessive exercise of governmental power. Because I cannot join in my colleagues' willingness to accept so dangerous and drastic a limitation on our individual liberties, I respectfully dissent.
I. The Scope of the DNA Act and the Combined DNA Index System
94
The federal program which for all practical purposes is approved today is not nearly as limited as the one initially enacted by Congress. The federal DNA database at issue in this litigation, the Combined DNA Index System ("CODIS"), 2 contains more information about vastly more individuals than it did when it was first created. A brief examination of the origins and development of CODIS helps demonstrate why further limitless expansion of the scope and reach of this nationwide database is inevitable, and helps explain why I find it so unlikely that today's decision is good for "this day and train only." Smith v. Allwright, 321 U.S. 649, 669 , 64 S.Ct. 757 , 88 L.Ed. 987 (1944) (Roberts, J., dissenting).
A. The Expansion of CODIS
95
Even a brief glance at the manner in which the federal government has developed and expanded CODIS makes plain that the scope of the system is broad and that future growth is inevitable. CODIS began in 1990 as a pilot program serving just 14 state and local laboratories. See CODIS Mission Statement and Background. Its enlargement began shortly thereafter and has not stopped since. Congress made CODIS a program with nationwide reach in the 1994 Violent Crime Control and Law Enforcement Act, which authorized the FBI to create a national database of DNA samples collected from crime scenes and crime victims, convicted offenders, and unidentified human remains. See DNA Analysis Backlog Elimination Act of 2000, H.R.Rep. No. 106-900(I), at 8[hereinafter DNA Act House Report]. It was not until passage of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996), however, that Congress authorized the FBI to "expand CODIS to include federal crimes." DNA Act House Report, at 8. Despite this legislation, the Department of Justice concluded that Congress had not yet provided the executive branch with sufficient legal authority to collect DNA samples from federal offenders. Consequently, Congress enacted the DNA Act of 2000, which states that "the probation office responsible for the supervision under Federal law of an individual on probation, parole, or supervised release shall collect a DNA sample from each individual who is, or has been, convicted of a qualifying Federal offense." 42 U.S.C. § 14135a(a)(2).
96
The DNA Act requires samples 3 from all individuals who have been convicted of "certain federal crimes." See ante, at 816 & n. 1. And, as the plurality rightly notes, the DNA Act of 2000 contained a narrow list of qualifying offenses, including crimes such as arson, voluntary manslaughter, and murder. What the plurality and concurring opinion fail to mention, however, is that the most recent list of qualifying offenses, contained at 28 C.F.R. § 28.2 , includes a laundry list of federal crimes that is vastly more expansive than the list approved by the 2000 DNA Act.
4
97
The current list of qualifying crimes is so broad and eclectic that it is difficult to name, absent an intimate familiarity with the intricacies of the federal criminal code, any discernible categories of criminal activities that remain beyond the reach of the DNA Act. The list of qualifying offenses includes crimes compiled from more than 200 separate sections of the United States Code, resulting in countless possible permutations of qualifying crimes. For example, one's DNA could be stored on file with the federal government forever upon a conviction for "willfully injur[ing] or commit[ting] any depredation against any property of the United States," such as spray painting graffiti on a government building or tearing apart a $1 bill in protest against a perceived arbitrary governmental policy. See 18 U.S.C. § 1361 . Similarly, an individual might have a DNA sample forcibly taken if he interferes with a mailman in the course of his duties, or forcibly opposes a federal employee on account of his performance of official duties. See 18 U.S.C. § 111 (a)(1) (making it illegal for any person to, inter alia, oppose or interfere with any officer or employee of the United States "while engaged in or on account of the performance of official duties"); see also 18 U.S.C. § 2116 (criminalizing the interference with any postal clerk in the discharge of his duties in connection with a postal car or steamboat). If an owner of a boat destroys his vessel in order to obtain an insurance payment, he may be forced to provide a DNA sample, see 18 U.S.C. § 2272 , and any non-owner of a boat who "maliciously cuts, spoils, or destroys any cordage, cable, buoys, buoy rope, head fast, or other fast, fixed to the anchor or moorings belonging to any vessel" will suffer a similar fate, 18 U.S.C. § 2276 ; cf. 18 U.S.C. § 2281 (criminalizing violence against maritime fixed platforms).
98
If the above examples do not sufficiently demonstrate that the federal government has not simply chosen to collect DNA samples from the most hardened criminals or most likely recidivists, consider the following non-exhaustive sample of enumerated crimes listed at 28 C.F.R. § 28.2 : resisting arrest, 18 U.S.C. § 2231 ; various forms of "civil disorder," 18 U.S.C. § 231 ; participation, promotion, or incitement of a riot, 18 U.S.C. § 2101 ; advocating the overthrow of the United States government, 18 U.S.C. § 2385 ; interference with access to reproductive health service facilities, 18 U.S.C. § 248 ; interference with an aviation flight crew member or flight attendant, 49 U.S.C. § 46504 ; interference with or intimidation of federal meat, poultry, or poultry products inspectors, 21 U.S.C. § 461 (c), 675; the harming of any animal used by law enforcement officials, 18 U.S.C. § 1368 ; the receipt of kick-backs from public works employees, 18 U.S.C. § 874 ; personal theft and robbery, 18 U.S.C. §§ 2111-12 ; conspiracies "to threaten, or intimidate any person," 18 U.S.C. § 241 ; interference with the right to vote, 18 U.S.C. § 594 ; attempts to intimidate or command any employee of the federal government to engage or not engage in political activity, 18 U.S.C. § 610 ; various forms of extortion and "mailing threatening communications," and "making extortionate extensions of credit" or collecting extensions of credit by "extortionate means," 18 U.S.C. §§ 875-78 , 892, 894; being a felon-or a member of the Armed Forces who has been dishonorably discharged-in possession of a firearm, 18 U.S.C. § 922 (g); computer fraud, 18 U.S.C. § 1030 ; attempted manslaughter, 18 U.S.C. § 1113 ; incest committed by an Indian in Indian country, 18 U.S.C. § 1153 ; the use of a hazardous or injurious device on federal land or an Indian reservation, 18 U.S.C. § 1864 ; tampering with a witness, 18 U.S.C. § 1512 ; piracy under the law of nations, 18 U.S.C. § 1651 ; the obstruction or delay of the movement of any article or commodity in commerce, 18 U.S.C. § 1951 ; various racketeering crimes, 18 U.S.C. §§ 1952 (a)(2), 1958-59, 1962; breaking and entering into a post office, 18 U.S.C. § 2115 ; cruelty to seamen on a vessel in the jurisdiction of the United States, 18 U.S.C. § 2191 ; "Shanghaiing sailors" by force or threat, 18 U.S.C. § 2194 ; misuse of a vessel by a person in command of the vessel within the territorial waters of the United States, 18 U.S.C. § 2274 ; tampering with, or breaking and entering into, another person's vessel, 18 U.S.C. §§ 2275-76 ; destruction or removal of property to prevent seizure, 18 U.S.C. § 2232 (a); any action designed to impair a federal court's continuing in rem jurisdiction over a particular property, 18 U.S.C. § 2232 (b); production of sexually explicit depictions of minors, 18 U.S.C. § 2260 ; the transfer of any obscene material to a minor, 18 U.S.C. § 1470 ; interstate stalking or violation of a protective order, 18 U.S.C. §§ 2261A, 2262; persuading or enticing any individual to travel across state lines to engage in prostitution, 18 U.S.C. § 2422 ; importation of any alien to the United States for any immoral purpose, 8 U.S.C. § 1328 ; and the removal or alteration of the serial number on a firearm, or the receipt of a firearm with a removed or altered serial number, 26 U.S.C. § 5861 . The Act even applies to several sections of the federal criminal code that have long been repealed. See, e.g., 18 U.S.C. §§ 2031 , 2032. And, in case the provided list is insufficient, the DNA Act is also triggered by the catchall "attempt or conspiracy" provision, which covers "[a]ny offense that is an attempt or conspiracy to commit any of the foregoing offenses." 28 C.F.R. § 28.2 (I).
99
The power to assemble a permanent national DNA database of all offenders who have committed any of the crimes listed above has catastrophic potential. If placed in the hands of an administration that chooses to "exalt order at the cost of liberty," Whitney v. California, 274 U.S. 357, 374 , 47 S.Ct. 641 , 71 L.Ed. 1095 (1927) (Brandeis, J., dissenting), the database could be used to repress dissent or, quite literally, to eliminate political opposition. Many of the qualifying offenses in the DNA Act are crimes that involve conduct closely related to the exercise of First Amendment rights to free speech and assembly, such as incitement, civil disorder, and the various forms of "interference" crimes listed above. Other offenses are so vaguely or broadly described that they cover almost any conduct that can be described as unlawful. Even if the list of qualifying offenses in the DNA Act remains static, future governments might use the Act's already wide reach to monitor, intimidate, and incarcerate political opponents and dis

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/787362. Public record. Not legal advice.