# 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/9497284 ## 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:** Concurrence by Gould - **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/9497284 ## 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 GOULD, Circuit Judge, concurring: I agree with the majority that Thomas Kineade’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. I 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 ease. 1 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 *841 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). Finding these authorities most persuasive, I reach the same conclusion as the majority, and I concur in the judgment. II 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 *842 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 Brandéis, 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 Privar cy 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. . 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 . . 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 pur *841 pose 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. . 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. . 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497284. Public record. Not legal advice.