# United States v. Paul G. Sczubelek

> Court of Appeals for the Third Circuit · March 21, 2005 · 402 F.3d 175

URL: https://www.frixlaw.com/law-library/cases/9497858

## Case

- **Full name:** UNITED STATES of America v. Paul G. SCZUBELEK, Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** March 21, 2005
- **Citations:** 402 F.3d 175; 2005 WL 638158
- **Precedential status:** Published
- **Opinion:** Dissent by McKee
- **Judges:** Scirica, Roth, McKee
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9497858

## How later opinions describe it (automated extraction)

- concluding that the taking of a DNA sample of a convicted felon on supervised release, under the federal DNA Act, was not unreasonable under the Fourth Amendment, in part because “individuals on supervised release are associated with higher recidivism rates [and the] collec *2…
- explaining that, “[e]ven though this is the first opportunity we have had to address this issue in the context of an individual on supervised release, we have addressed similar challenges in the context of parole and probation,” and following those previous rulings
- stating that DNA Act clearly delineates from whom the sample must be taken, who may take the sample, the permissible uses of the sample, the punishment for unauthorized disbursement of samples, and the expungement of the DNA information upon reversal of conviction
- reasoning that, because convicted offenders cannot assert a privacy interest in photographs and fingerprints as "means of identification" they also must forfeit their interests in the "identifying information" provided by their DNA
- stating that it believes "that it is appropriate to examine the reasonableness of the taking of the sample under the more rigorous Knights totality of the circumstances test rather than the Griffin special needs exception"

## Opinion text

MCKEE, Circuit Judge,
Dissenting.
I must respectfully dissent from the majority’s analysis insofar as my colleagues conclude that the coerced collection of Sczubelek’s blood for DNA analysis “is not an unreasonable search in violation of the Fourth Amendment.” See Maj. Op. at 187. 7 “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.” Skinner v. Railway Labor Executives’ Assoc., 489 U.S. 602, 635 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989) (Marshall, J. dissenting). 8 As I shall explain, the rights guaranteed under the Fourth Amendment can not be jettisoned *190 as easily as the majority’s analysis of the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. §§ 14135 -14135e (2001 Supp) (“DNA Act”), suggests.
I. Introduction.
“Chemical analysis of ... blood[ ] can reveal a host of private medical facts ... including whether [someone] is epileptic, pregnant, or diabetic.” Skinner, 489 U.S. at 617 , 109 S.Ct. 1402 . The Supreme Court recognized that before science had unlocked the mystery of the DNA molecule. Today we may be just beginning to appreciate the wealth of personal information that may be encoded inside our blood. Under the DNA Act, the government can seize that information and store it in the Combined DNA Index System (“CODIS” or “DNA database”), for as long as the government wishes. The search occurs even though the government may concede that the person searched has become a law abiding citizen who is a productive and contributing member of his/her community-
II. Discussion.
My colleagues believe that this DNA analysis is only minimally invasive. Nevertheless, “it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy ...”. Skinner, 489 U.S. at 616 , 109 S.Ct. 1402 (internal quotation marks omitted). Furthermore, the “physical intrusion, penetrating beneath the skin,” is only part of the intrusion that we sanction today. “The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested [individual’s] privacy interests.” Id. 9
The Supreme Court has never struck the Fourth Amendment balance in favor of a law enforcement intrusion that was not based on some level of individualized suspicion. Chandler v. Miller, 520 U.S. 305, 313 , 117 S.Ct. 1295 , 137 L.Ed.2d 513 (1997) (“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.”). “In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.” Skinner, 489 U.S. at 624 , 109 S.Ct. 1402 . However, none of those circumstances are present here, and an examination of the Supreme Court’s Fourth Amendment jurisprudence establishes that the professed governmental interest in Sczubelek’s identity does not (without more) justify the intrusion ordained by the DNA Act.
A. The Supreme Court Precedent.
1. Griffin v. Wisconsin.
In Griffin v. Wisconsin, 483 U.S. 868 , 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987), the Court upheld a probation officer’s warrant-less search of a probationer’s apartment after police informed the probation office that the probationer may have guns there. The search was conducted pursuant to a state regulation that authorized warrant-less searches of a probationer’s home “as *191 long as [the] supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband — including any item that the probationer cannot possess under the probation conditions.” 483 U.S. at 871 , 107 S.Ct. 3164 . The Court upheld the warrantless search while reaffirming that “[a] probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ ” Id. at 873 , 107 S.Ct. 3164 .
Reasonableness is usually established by satisfying the warrant requirement. A search pursuant to a warrant is “supported by probable cause, as the Constitution says warrants must be.” Id. (parenthesis omitted). However, the Court based its ruling on a limited exception to that general rule that applies when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Id. (internal quotation marks omitted).
The search of Griffin’s apartment did not offend the Fourth Amendment because “[a] State’s operation of a probation system, ... presents ‘special needs’ beyond normal enforcement that may justify departures from the usual warrant and probable-cause requirements.” Id. at 873-74 , 107 S.Ct. 3164 . Probationers, the Court noted, enjoy only a “ ‘conditional liberty properly dependent on the observance of special [probation] restrictions.’ ” Id. at 874 , 107 S.Ct. 3164 (brackets in original). The restrictions the Court alluded to, like the restrictions relied upon by my colleagues here, “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. at 875 , 107 S.Ct. 3164 . As noted above, the regulation in Griffin authorized warrantless searches to insure that a probationer was complying with the terms of his/her probation. Thus, although the probation officer entered based upon information Griffin had a gun, the entry was nevertheless consistent with Griffin’s probationary supervision. It therefore served a supervisory function sufficiently removed from a law enforcement purpose to survive Fourth Amendment scrutiny.
That “supervision” was a special need “permitting the [state] a degree of impingement upon privacy that would not be constitutional if applied to the public at large.” Id. The Court’s analysis did not stop there, however, because the Court still had to determine if the search, though permissible, exceeded the “permissible degree” of intrusion consistent with the supervisory need. Id. (“The permissible degree is not unlimited.”). The Court concluded that the warrantless search did not exceed the permissible limits.
A warrant requirement would interfere ... with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires. Moreover, the delay ... would make it more difficult for probation officials to respond quickly to evidence of misconduct, and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create ...
Id. at 876 , 107 S.Ct. 3164 (internal citations omitted). The Court also stressed the unique role of a probation officer:
Although a probation officer is not an impartial magistrate, neither is he the police officer who normally conducts searches against the ordinary citizen. He is an employee of the State Department of Health and Social Services who, while assuredly charged with protecting the public interest, is also supposed to have in mind the welfare of the probationer.
*192 Id. Citing the applicable probation regulations, the Court noted that probation officers “ ‘[p]rovid[e] individualized counseling designed to foster growth and development of the client as necessary,’ ... and ‘[m]onito[r] the client’s progress where services are provided by another agency and evaluate] the need for continuation of the services.’ ” Id. at 876-77 , 107 S.Ct. 3164 (internal citations omitted). That is hardly the dynamic driving the intrusion here.
Two years after deciding Griffin , the Supreme Court decided Skinner . There, the Court explained that, notwithstanding any suggestion in Griffin to the contrary, the special needs doctrine does not extend to intrusions that are intended to further the need of law enforcement.
2. Skinner v. Railway Labor Executives, Assoc.
In Skinner v. Railway Labor Executives’ Assoc., 489 U.S. 602 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989), labor unions representing railroad employees challenged regulations promulgated by the Federal Railroad Administration (“FRA”) requiring certain railroad employees to provide blood and urine specimens for drug and alcohol analysis following rail accidents. The unions alleged that the warrantless seizure of blood and urine violated the Fourth Amendment. The Supreme Court agreed that the “compelled intrusio[n] into the body for blood to be analyzed ...” constituted a search under the Fourth Amendment. 489 U.S. at 616 , 109 S.Ct. 1402 (citing Schmerber v. California, 384 U.S. 757, 767-768 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966)). The Court nevertheless concluded that the searches were permissible under the “special needs” doctrine. The Court explained: “[w]hen faced with such special needs [as railroad safety]) 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.” 489 U.S. at 619 , 109 S.Ct. 1402 . The Court balanced the need for rail safety against the intrusion resulting from the blood and urine analysis, and concluded the need justified the suspicion-less intrusion.
The Government’s interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, likewise presents special needs beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.
489 U.S. at 620 , 109 S.Ct. 1402 (quoting Griffin, 483 U.S. at 873-874 , 107 S.Ct. 3164 ) (emphasis added) (internal quotation marks omitted).
The blood and urine analysis there was intended “not to assist in the prosecution of employees, but rather ‘to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.’ ” Id. at 621, 107 S.Ct. 3164 (citing 49 C.F.R. § 219.1 (a) (1987)). The Court also reaffirmed the importance of the warrant requirement and individualized suspicion in other contexts.
Our cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. When the balance ... precludes insistence on a showing of probable cause, we have usually required some quantum of individualized suspicion.
Id. at 624 , 107 S.Ct. 3164 (internal quotations and citations omitted).
*193 The requirement of “individualized suspicion” has only yielded “where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion ... ”. Id. at 624, 107 S.Ct. 3164 . However, that interest must be real and it must be other than the general need of enforcing the law. Chandler v. Miller, 520 U.S. 305 , 117 S.Ct. 1295 , 137 L.Ed.2d 513 (1997).
3. Chandler v. Miller.
In Chandler , candidates for state office challenged a Georgia statute that required certain candidates to certify that they had undergone urine analysis and tested negative for controlled substances prior to qualifying for the election. The state sought to justify the requirement by asserting a special need to insure the integrity and judgment of its elected officials even though it could not point to a history of its elected officials being impaired or abusing controlled substances while in office.
Despite the absence of a demonstrable problem, the Court of Appeals for the Eleventh Circuit upheld the intrusion based upon candidates’ diminished expectation of privacy, the importance of the public trust, and the extent to which “the perils of drug use” could interfere with an elected official’s duties and the public’s confidence in government. 520 U.S. at 312 , 117 S.Ct. 1295 (“candidates for high office must expect the voters to demand some disclosures about their physical, emotional, and mental fitness for the position.”). 10
The intrusion was relatively minor compared to the intrusion that had been approved in Skinner because, under the Georgia statute, a candidate could provide a urine specimen taken in the privacy of his/her own office and submit it to any certified testing facility. The candidate also retained the right to refuse to disclose the results of the analysis and could instead terminate his/her candidacy. In addition, unlike here, the “drug test ... would reveal only the presence or absence of indicia of the use of particular drugs, and not any other information about the health of the candidate.” Id. at 312, 117 S.Ct. 1295 (emphasis added).
The Supreme Court reversed the decision of the Court of Appeals. The Supreme Court held that, notwithstanding the state’s professed “special need,” the candidates’ diminished expectation of privacy, or the limited nature of the intrusion, the requirement was nevertheless inconsistent with the Fourth Amendment. The Court reiterated the importance of “individualized suspicion of wrongdoing,” and the limits of the “special needs” doctrine. Id. at 312-313 , 117 S.Ct. 1295 . Rather than relying upon the state’s assertion of a special need, the Court undertook “a context-specific inquiry, examining closely the competing private and public interests advanced by the parties! ]” id. at 314 , 117 S.Ct. 1295 , to independently determine whether the force of the state’s need justified the intrusive statute.
The Court reasoned that “the proffered special need for drug testing must be substantial — important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement for individualized suspicion.” Id. at 318 , 117 S.Ct. 1295 . Since the record there did not indi *194 cate “any ... concrete danger demanding departure from the Fourth Amendment’s main rule,” the Court held that the balance of interests tipped against the state notwithstanding a candidates’ diminished expectation of privacy. Id. at 319 , 117 S.Ct. 1295 . 11
Given the teachings of Chandler, we are far too quick to allow the government’s professed interest here to trump the need for individualized suspicion. Moreover, the Court’s subsequent analysis in City of Indianapolis v. Edmond, 531 U.S. 32 , 121 S.Ct. 447 , 148 L.Ed.2d 333 (2000), teaches that the Fourth Amendment will not tolerate a “special need” that is intended to further the government’s interest in law enforcement.
4. City of Indianapolis v. Edmond.
In Edmond , the City of Indianapolis initiated a program of vehicle checkpoints “in an effort to interdict unlawful drugs.” 531 U.S. at 34 , 121 S.Ct. 447 . Officers stopped vehicles at roadblocks and asked for the driver’s license and registration while looking to see if the driver might be impaired. The officer would conduct a very brief visual examination of the interi- or while remaining outside the vehicle and speaking with the driver. During this brief detention, another officer would walk a narcotics-detection dog around the outside of the vehicle to see if the dog alerted for the presence of a controlled substance. Police only conducted a more involved search if the driver consented or if they had reasonable suspicion based upon their initial observations or the behavior of the dog. Id. at 35 , 121 S.Ct. 447 . Otherwise, file stops only lasted two to three minutes. Id. at 36 , 121 S.Ct. 447 .
Motorists challenged the checkpoint inspections in a class action in which they argued that the roadblocks violated the Fourth Amendment. The Supreme Court agreed. Although the Court had previously suggested that a brief stop of motor vehicles
with the purpose of verifying drivers’ licenses and vehicle registrations would be permissible!,] [it had never] approved] ... a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing ... Rather, [the Court’s] checkpoint cases ... recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion.
Id. at 38, 41 , 121 S.Ct. 447 . In reviewing the challenge to the Indianapolis program, the Court stressed that it had recognized “only limited circumstances in which the usual rule does not apply.” Id. at 37 , 121 S.Ct. 447 . Those limited circumstances include “certain regimes of suspicionless searches where the program was designed to serve ‘special needs, beyond the normal need for law enforcement^]’ ” Id.
Although the Indianapolis checkpoints improved highway safety by removing impaired drivers from the highway, the Court “would not credit the general interest in crime control as justification for a regime of suspicionless stops.” Id. The Court had distinguished earlier suspicion-less searches that had been upheld despite their law enforcement objective as follows:
*195 [s]ecuring the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. If we were to rest the case at this high level of generality, there would be little check on the ability of authorities to construct roadblocks for almost any conceivable law enforcement purpose.
Id. at 42 , 121 S.Ct. 447 (internal citations omitted). 12
My colleagues err because, contrary to the teachings of Edmond , they rest the governmental need here on too high a level of generality. This is evident from the Supreme Court’s holding in Ferguson v. City of Charleston, 532 U.S. 67 , 121 S.Ct. 1281 , 149 L.Ed.2d 205 (2001).
5. Ferguson v. City of Charleston.
In Ferguson , the Court was called upon to decide if the Fourth Amendment could tolerate a state hospital’s policy of informing police when blood or urine specimens of pregnant mothers tested positive for cocaine. The Court defined the issue as follows: “whether the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine can justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.” 532 U.S. at 70 , 121 S.Ct. 1281 .
The state argued that safeguarding the health and life of the newborn was a “special need” and that the warrantless intrusion therefore did not offend the Fourth Amendment. The Court rejected that argument because the “special need” was driven by a law enforcement objective, thus requiring individualized suspicion. Id. The Court explained: “[t]he fact that positive test results were turned over to the police does not merely provide a basis for distinguishing ... prior cases applying the ‘special needs’ balancing approach.... It also provides an affirmative reason for enforcing the strictures of the Fourth Amendment.” Id. at 84 , 121 S.Ct. 1281 . Although the state “repeatedly insisted [ ][its] motive was benign rather than punitive[,] ... [the] motive ... [did not] justify a departure from Fourth Amendment protections, given the pervasive involvement of law enforcement ... [The policy] was designed to obtain evidence of criminal conduct ...”. Id. at 85-86 , 121 S.Ct. 1281 . In Ferguson , unlike in Chandler , the Court did not dispute the gravity of the need. It recognized the seriousness of cocaine abuse and its impact on fetal health as well as the health of the mother. However, the Court concluded, as it had in Edmond , that “ ‘the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.’ ” Id. at 86 , 121 S.Ct. 1281 (quoting Edmond, 531 U.S. at 42-43 , 121 S.Ct. 447 .).
Finally, my colleagues’ rely heavily on United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001), in arguing that the governmental “interests” here are sufficient to sustain intrusive blood *196 testing under the DNA Act. However, when Knights is considered in context with Griffin, Edmond, Ferguson, and Chandler , the constitutional infirmity of the DNA Act’s intrusion becomes evident.
6. United States v. Knights.
Knight was a probationer. One of the terms of his probation required him to K[s]ubmit his ... person, [and] property ... to search at anytime, with or without a search warrant, ... or reasonable cause by any probation officer or law enforcement officer.” Knights, 534 U.S. at 114 , 122 S.Ct. 587 (brackets in original).
Knights had been placed on probation after a power company filed a criminal complaint against him for theft of services. Shortly after that complaint had been filed, a fire broke out on the company’s property, and suspicion immediately focused on Knights and a friend of his named “Simoneau.” The suspicion was based on the timing of the fire as well as the fact that prior acts of vandalism coincided with Knights’ court appearances on the theft of services complaint. In addition, a week before the fire, police had stopped Knights and Simoneau near one of the power company’s gas lines and noticed pipes and gasoline in Simoneau’s truck. During a visual inspection of the truck after the fire, police observed Molotov cocktails, gasoline, and two brass padlocks matching the description of padlocks that had been taken from the power plant the night of the fire.
Knowing that Knight’s probation included the aforementioned condition allowing searches, police conducted a warrantless search of Knights’ apartment and discovered several items connecting Knights to the fire. He was arrested and subsequently convicted of conspiracy to commit arson. The conviction was eventually appealed to the Supreme Court where Knights argued that the evidence seized during the war-rantless search should have been suppressed.
The Supreme Court disagreed. The Court reasoned that the condition of Knights’ probation was valid because it furthered the dual goals of rehabilitation and protecting society from future criminal violations. Id. at 120 , 122 S.Ct. 587 . That condition “significantly diminished Knights’ expectation of privacy.” Id.
As is apparent from the evidence I have briefly summarized, there was no real issue about whether the search was justified by a reasonable suspicion of Knights’ involvement. Rather, the issue was whether the warrantless search of Knights’ private residence, “pursuant to his probation condition, and supported by reasonable suspicion, satisfied the Fourth Amendment,” given whatever expectation of privacy Knights retained. Id. at 114 , 122 S.Ct. 587 . The Court held that it did. Id. at 122 , 122 S.Ct. 587 .
As my colleagues note, the Court reasoned that concerns for a probationer’s successful completion of probation, and the fact that probationers are more likely to commit crimes “than an ordinary member of the community,” allowed the state to “justifiably focus on probationers in a way that it does not on the ordinary citizen.” Id. at 121 , 122 S.Ct. 587 . However, my colleagues ignore that the Court’s Fourth Amendment balance tilted in favor of the government because, under the circumstances there, the Fourth Amendment “require[d] no more than reasonable suspicion ... ”. Id. As I shall explain in more detail below, absent individualized suspicion, the majority’s attempt to balance interests and determine reasonableness is as unworkable as it is meaningless.
In his concurring opinion, Justice Souter summarized the Court’s holding in Knights *197 as follows: “We ... hold that law-enforcement searches of probationers who have been informed of a search condition are permissible upon individualized suspicion of criminal behavior committed during the probationary period, thus removing any issue of the subjective intention of the investigating officers from the case.” Id. at 122-23 , 122 S.Ct. 587 (Souter, J. concurring) (emphasis added).
Although I disagree with the majority’s reading of Knights , I agree that the case is central to our inquiry. Unlike Griffin, Knights was not decided on the basis of a “special need.” Rather, the Court used the reasonableness test the majority purports to adopt here. The majority does appear to rest its analysis upon Knights’ traditional reasonableness inquiry. However, I believe that an examination of the competing interests here establishes that my colleagues are actually employing the “special need” doctrine while ignoring the restrictions the Court has so carefully tried to place around it.
B. Sczubelek’s Privacy Interest.
The majority opines that “the intrusion of a blood test is minimal,” and concludes that Sczubelek, as an individual on supervised release, does “not enjoy the absolute liberty to which every citizen is entitled.” Maj. Op. at 184. Under the majority’s view, once Sczubelek was convicted of a felony, he could “no longer assert a privacy interest” in his identity, which includes his fingerprints, his photograph, and the “more reliable” means of identification— his DNA. Id. at 184 . 13
However, while Sczubelek may enjoy lesser Fourth Amendment privacy rights than other citizens, his Fourth Amendment rights are not extinguished. See United States v. Hill, 967 F.2d 902, 910 (3d Cir.1992) (“while a parolee’s reasonable expectation of privacy is greater than a prisoner’s, it is still less than the average citizen’s.”). Even prisoners and parolees maintain a reasonable expectation of privacy in their own bodies. See Tribble v. Gardner, 860 F.2d 321, 325 (9th Cir.1988) (stating that digital rectal searches of prisoners must be justified by legitimate peno-logical need). 14
The majority likens the extraction of Sczubelek’s blood to his being fingerprinted and photographed at the time of his arrest. Of course, neither procedure “requires production of evidence below the *198 body surface which is not subject to public view.” In re Mills, 686 F.2d 135, 139 (3d Cir.1982). Although Sezubelek may have a lesser expectation of privacy in those physical attributes exposed to public view such as his fingerprints and face, his privacy interests in the information science can extract from his blood is much greater. “Even a limited search of the outer clothing ... constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, 392 U.S. 1, 24-25 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).
Lastly, the forced extraction of Sczube-lek’s blood pursuant to the DNA Act “constitutes far more of an intrusion than the mere insertion of a needle into [Sczube-lek’s] body and the consequent extraction of a blood sample.” United States v. Kincade, 379 F.3d 813, 867 (9th Cir.2004) (en banc) (“Kincade II”) (Reinhardt, J., dissenting) As Judge Reinhardt so aptly stated in his dissent in Kincade II:
prior cases dealing with the level of intrusion authorized by the taking of blood samples ... did not confront a regime in which the samples were turned into profiles capable of being searched time and time again throughout the course of an individual’s life ... The startling advance of technology has magnified the power of the initial search authorized by the DNA Act, such that the invasion of privacy is vastly more significant that [sic] we might have previously assumed ... To reduce searches authorized by the DNA Act to the physical act of taking blood would be to ignore the “totality of the circumstances” surrounding the search and to ignore the manner in which “the advance of technology” has affected “the degree of privacy secured to citizens by the Fourth Amendment.” Kyllo v. United States, 533 U.S. 27, 33-34 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001).
Id.
C. The Government’s Interests.
The majority contends that “the government has a compelling interest in the collection of identifying information of criminal offenders.” Maj. Op. at 185. The interests cited by the majority include: (1) increased accuracy in the investigation and prosecution of criminal cases; (2) aiding in solving crimes that occur in the future; (3) exculpating individuals who have been wrongly convicted and sentenced for a crime and eliminating individuals from suspect lists when crimes occur; and (4) promoting the two primary goals of probation — rehabilitation and protecting society from future criminal violations. Id. at 185.
I can no more argue with the legitimacy of such interests than the Supreme Court could argue with the validity of the interests of fetal and maternal health in Ferguson . However, here, as there, the government’s interest in law enforcement can not justify this intrusion.
My colleagues are convinced that Sezu-belek can have no legitimate interest in his identity and that the government has a strong interest in it. Even assuming the validity of that assessment, the government can not ignore the restraints of the Fourth Amendment in order to achieve that “interest.” “[T]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” Ferguson, 532 U.S. at 86 , 121 S.Ct. 1281 .
The Supreme Court has identified many other groups of people who have a reduced expectation of privacy. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 830-31 , 122 S.Ct. 2559 , 153 L.Ed.2d 735 (students who *199 attend public schools and who participate in extracurricular activities have significantly diminished expectations of privacy); Wyoming v. Houghton, 526 U.S. 295, 303 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999) (drivers and passengers of vehicles have reduced expectations of privacy). One wonders if, under the majority’s approach, given a compelling interest for doing so, the government could extract the blood and catalogue the DNA of these individuals as well. The CODIS databank would certainly be far more effective it if contained identifying information from a greater segment of the population than just those who had previously committed certain crimes. Allowing police to cata-logue the identity of certain people before they commit a crime would deter persons who would otherwise become first offenders. This would make us all safer than an Act that is only aimed at the Sczubeleks of the world.
Moreover, any attempt to justify CODIS as a means of “protecting the innocent” would appear to be more subterfuge than analysis. Although the identifying information on file with the government may occasionally exculpate the falsely accused, that is certainly not a justification for the Act’s intrusiveness. As Judge Reinhardt argued in Kincade II, “[t]he Act provides no option for DNA testing to those who seek to prove their innocence, and no funding to states or localities to help provide DNA sampling when requested by those who contend that [they] were wrongfully arrested or convicted.” 379 F.3d at 869 . In addition, anyone who wanted his/her DNA analyzed to provide exculpatory evidence could voluntarily do so without any DNA Act if it was affordable. Not surprisingly, the Act makes no provision for assisting with the costs of such voluntary analysis even though it may exonerate someone who is incorrectly accused of a crime.
The majority also looks to the government’s interest in promoting the goals of probation — rehabilitation and protecting society from future criminal violations. My colleagues argue: “[a]s with individuals on probation, individuals on supervised release are associated with higher recidivism rates.” Maj. Op. at 186. However, that argument would justify coerced DNA from others who, like probationers or persons on supervised release, share demographic characteristics that suggest a higher likelihood of criminal behavior than some cohort group.
D. The Majority’s Analysis Is Not Based Upon Knights .
The majority states that it is not deciding this case within the “special needs” framework, and that it is instead using the totality of the circumstances test found in Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 . 15 However, neither of the two pillars of the Knights analysis are present here. There, Knights had accepted the terms of the search condition when he was sentenced to probation, and the Court reasoned that he therefore had a “significantly diminished ... reasonable expectation of privacy.” Id. at 119-120 , 122 S.Ct. 587 . However, Sczubelek did not consent to DNA analysis as the Act was enacted after he was sentenced. In a footnote, the majority explains “the fact that the giving of a DNA sample was not originally an express condition of Sczube-lek’s supervised release is not significant.” Maj. Op. at 185 n. 4. I cannot agree. It is *200 relevant to any analysis of his expectation of privacy.
The majority attempts to find support in Skinner , Maj. Op. at 186, where the Court held that in “limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.” Skinner, 489 U.S. at 624 , 109 S.Ct. 1402 . However, as I have already explained, Skinner is a “special needs” case requiring a “special need beyond the normal need for law enforcement.” Id. at 621 , 109 S.Ct. 1402 .
Griffin was also a special needs case, despite its law enforcement ramifications, because it involved “a search conducted by a probation officer monitoring whether the probationer is complying with probation restrictions.” Knights, 534 U.S. at 117 , 122 S.Ct. 587 . Knights explained that Griffin “held that a State’s operation of its probation system presented a special need for the exercise of supervision to assure that [probation] restrictions are in fact observed.” Id. at 117, 122 S.Ct. 587 (internal quotation marks omitted). Despite my colleagues’ disclaimer, that is precisely what the majority is arguing here.
The majority’s analysis rests upon the same special need as that found in Griffin as it substitutes the demands of probation and court supervision for the requirement of individualized suspicion. In doing so, my colleagues refer to the government’s “needs” as “interests.” The majority argues: “[a]n additional government interest is promotion of the two primary goals of probation — rehabilitation and protecting society from future criminal violations.” Maj. Op. at 186 (internal quotation marks omitted). The majority notes the higher recidivism rates of probationers, and cites Griffin in arguing that persons on supervised release also have a higher incidence of crime. My colleagues reason that the DNA Act therefore furthers a rehabilitative interest/need: “collection of identifying information will indirectly promote the rehabilitation of criminal offenders by deterring them from committing crimes in the future. ” Id. at 186 (emphasis added).
However, this is nothing more than arguing that DNA analysis is justified by a special need while ignoring that the “need” relied upon is law enforcement. My colleagues take this approach even though the Supreme Court has “decline[d] to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.” Edmond, 531 U.S. at 44 , 121 S.Ct. 447 .
As I have already explained, the special needs exception must be sustained by interests “beyond the normal need for law enforcement Id. 16 In each of the Court’s special needs 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.” Ferguson, 532 U.S. at 79 , 121 S.Ct. 1281 . Knights can not justify broadening the special needs doctrine to accommodate the DNA Act. If that doctrine is to remain “closely guarded,” Chandler, 520 U.S. at 309 , 117 S.Ct. 1295 , it is important to properly identify the purpose of the intrusion. See Edmond, supra. (“If we were to rest the case at this high level of generality, there would be little check on the ability of authorities to construct road *201 blocks for almost any conceivable law enforcement purpose.”). “Law enforcement ... always serves some broader social purpose or objective ... virtually any noncon-sensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate purpose.” Ferguson, 532 U.S. at 84 , 121 S.Ct. 1281 .
Furthermore, even assuming arguendo that we can ignore the law enforcement objectives here, and apply a Knights analysis, the Fourth Amendment balance would still not tip in favor of the government. 17
E. The Majority’s Reasonableness Inquiry.
The reasonableness inquiry the majority attempts to apply is simply too amorphous and standardless to have any real Fourth Amendment meaning in the absence of individualized suspicion. See Skinner, 489 U.S. at 624 , 109 S.Ct. 1402 (“When the balance of interests precludes insistence on a showing of probable cause, we have usually required ‘some quantum of individualized suspicion’ before concluding that a search is reasonable.”).
When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s diminished privacy interests is reasonable.
Knights, 534 U.S. at 121 , 122 S.Ct. 587 . 18 “The degree of individualized suspicion required ... is a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual’s privacy interest reasonable.” Id. “In determining whether individualized suspicion is required, [we] must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue.” Edmond, 531 U.S. at 33 , 121 S.Ct. 447 . In order to sustain the DNA search of Sczubelek, we must conclude that it is reasonable to catalogue his DNA even though he has committed no new crimes because of the possibility, however remote or theoretical, that he may one day commit another crime. We must further conclude that the likelihood of his apprehension is so slight that the identifying information inside his DNA will be necessary to his apprehension even though his fingerprints, photograph, and other personal information is already in law enforcement files, and even though he has heretofore not demonstrated any particular prowess for avoiding arrest and conviction. The unreasonableness of upholding the DNA Act based upon such a set of assumptions is why it is so important that we not allow such intrusions in the absence of some level of individualized suspicion.
As the Court explained in Edmond , “our cases dealing with intrusions that occur *202 pursuant to a general scheme absent, individualized suspicion have often required an inquiry into purpose at the programmatic level.” Id. at 46 , 121 S.Ct. 447 . That is precisely why a suspicionless search is only valid when it meets a “special need” other than law enforcement. Only in such a special case can the intrusion be deemed “reasonable” given the limitations of the Fourth Amendment. Id. at 47 , 121 S.Ct. 447 (“While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspi-cionless intrusions pursuant to a general scheme are at issue.”). Individualized suspicion is required for a law enforcement search because “[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that ... evidence might be obtained.” Skinner, 489 U.S. at 644 , 109 S.Ct. 1402 (Marshall, J. dissenting) (quoting Schmerber v. California, 384 U.S. 757, 769-770 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966)). Thus, it is not surprising that “[njever once in over two hundred years of history has the Supreme Court approved a suspicionless search designed to produce ordinary evidence of criminal wrongdoing for use by the police.” Kincade II, 379 F.3d at 853 (Reinhardt, J dissenting.). 19
My colleagues suggest that the intrusion here is no more invasive than the blood drawing most of us willingly submit to as part of a regular physical examination or diagnostic procedure. See Maj. Op. at 184. The two situations are not analogous. Voluntarily submitting to a diagnostic blood test in the office of one’s personal physician in order to evaluate such things as cholesterol levels, blood sugar, or the existence of some disease that the doctor will then treat, does not abrogate a patient’s expectation of privacy in the personal information locked up in his/her DNA. Indeed, I think it obvious that most patients would not only be quite surprised, they would be outraged, to discover that their physician turned their blood specimens over to the FBI for inclusion in a searcha-ble DNA database rather than discarding the blood that remained after testing. 20
However, one need not go this far to appreciate that this intrusion into Sezube-lek’s retained privacy is unreasonable. Sczubelek has completed every facet of his supervised release except for providing the DNA blood sample, and he is challenging that in court. He has not been rearrested or convicted of any new offenses. Therefore, even assuming that permanently storing a supervised releasee’s DNA for the rest of his life will somehow aid the “rehabilitation” process — a dubious proposition offered by my colleagues without supporting authority — the record does not establish that Sczubelek needs any such deterrence. Permanently storing the information inside his DNA will neither help *203 his rehabilitation, nor assist with his supervision.
If we are to conclude that the DNA Act is a reasonable intrusion upon the privacy of an entire population of suspicionless individuals, we must assume that the least likely to reoffend needs the same level of “rehabilitation” as the most likely to reof-fend; and we must do so even though the “least likely to reoffend will commit no new crimes.” 21 This dragnet approach ignores the realities of the recidivism it tries to rely upon. Recidivism rates vary depending largely on the offense of conviction, age at time of first arrest, economic status, and countless other demographics too variable to justify a nondiscriminating search of everyone belonging to the class of persons having criminal records. 22
Moreover, the risk of recidivism on the first day of supervision is clearly not the same as the risk of recidivism 20 years after someone has successfully completed supervised release, yet if we are to sustain the DNA Act we must believe that the expectation of privacy and the risk of recidivism remain unchanged; the majority’s analysis certainly infers as much.
Thus, if we are to accept the majority’s emphasis on rehabilitation, then the seizure of Sczubelek’s DNA is certainly unreasonable. He has all but completed his “rehabilitation.” Yet, the scarlet letters of his DNA remain embroidered into the government’s database long after he finishes his court supervision and “ages out of’ any statistically significant chance of recidivism.
As Judge Reinhardt argues in dissent in Kincade II, history teaches that the DNA database will only grow over time to include new categories of citizens who, it can be argued, have a reduced expectation of privacy. Id. at 846 . (“the most recent list of qualifying offenses, ... includes a laundry list of federal crimes that is vastly more expansive than the list approved by the 2000 DNA Act.”). Id. at 846 . (Reinhardt, J. dissenting). 23
*204 I do not concede that the DNA Act would be a reasonable intrusion under the Fourth Amendment if Congress had restricted the information to the term of an individual's supervision under the criminal justice system. However, the failure to do so only adds to the unreasonableness of the intrusion and further tips the balance toward Sczubelek’s side of the Fourth Amendment scale. The Act’s do-si-do around the historic requirement of individualized suspicion simply can not be reconciled with the Supreme Court’s interpretation of the Fourth Amendment’s guarantees.
III. Conclusion.
In his dissent in Skinner , Justice Marshall cited several instances where courts have been less than vigilant in upholding the liberties in the Constitution and noted that, in each case, the clarity of hindsight brought regret. He cautioned: “[hjistory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.” Skinner, 489 U.S. at 635 , 109 S.Ct. 1402 (Marshall, J., dissenting). More recently, in Chandler , the Court quoted approvingly from a dissent Justice Brandéis wrote nearly 75 years earlier in Olmstead v. United States, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928). The Olmstead dissent was the prevailing view in Chandler , and the Court relied upon it to explain that:
it is ... immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. [Persons] born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
Chandler, 520 U.S. at 322 , 117 S.Ct. 1295 (brackets and ellipsis in original) (quoting Olmstead, 277 U.S. at 479 , 48 S.Ct. 564 (Brandéis, J. dissenting)).
Because I believe the DNA Act is such an encroachment, I must respectfully dissent from the decision of my colleagues.
. I agree with the majority's conclusion that this appeal is not moot and that the DNA Act does not violate the separation of powers doctrine.
. Justice Marshall also noted that, “when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.” Skinner, 489 U.S. at 635 , 109 S.Ct. 1402 .
. My colleagues may conclude that the constitutionality of the analysis is subsumed within, and legitimized by, the governmental interests justifying the drawing of blood in the first instance. However, I do not think we can so easily dismiss the separate intrusion of allowing the government to peer inside someone’s DNA and permanently store the information to be found there. There is a significant distinction between that and the intrusion each of us accepts when we visit our physician and have our blood drawn. See, discussion infra at 191.
. The Court of Appeals had reasoned that ”[c]andidates for public office ... are subject to relentless scrutiny — by their peers, the public, and the press. Their day-to-day conduct attracts attention notably beyond the norm in the ordinary work environments.” Id. at 321, 117 S.Ct. 1295 .
. The Court noted that "[t]he statute was not enacted, ... in response to any fear or suspicion of drug use by state officials! ]” and stated that "[a] demonstrated problem of drug abuse ... would shore up an assertion of special need for a suspicionless general program.” Id. at 319 , 117 S.Ct. 1295 . However, for reasons I shall explain, even though my colleagues assert such a demonstrated need here, I do not believe the need asserted can justify the Orwellian intrusion that is ushered in under the umbrella of the DNA Act.
. The Court has also approved suspicionless searches in cases involving highway checkpoints used to search for illegal immigrants, United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976), and drunk drivers, Michigan Dept. of State Police v. Sitz, 496 U.S. 444 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990). These cases are inapposite, however, as they involve only a "slight” intrusion on the motorists subject to the stops, whereas here, the intrusion on Sczubelek is much greater. See Sitz, 496 U.S. at 451 , 110 S.Ct. 2481 ("the measure of the intrusion on motorists stopped briefly at sobriety checkpoints — is slight.”)
. The majority relies on various cases from other Circuit Courts of Appeals to support the contention that Sczubelek has a diminished privacy interest in his identity — and more specifically, in his DNA. At least two of these cases are not on point. See Maj. Op. at 184-85 (relying on Jones v. Murray, 962 F.2d 302 (4th Cir.1992) and Groceman v. U.S., 354 F.3d 411 (5th Cir.2004)). While Jones and Groce-man upheld the constitutionality of the DNA Act, both cases involved prisoners, whose privacy interests are lessened because of concerns of confinement that include the security of the facility in which they are housed. See Jones, 962 F.2d at 306 ("We have not been made aware of any case, however, establishing a per se Fourth Amendment requirement of probable cause, or even a lesser degree of individualized suspicion, for the purpose of ascertaining and recording the identity of a person who is lawfully confined to prison.”); Groceman, 354 F.3d at 413-14 ("Though ... collection of a DNA sample for purposes of identification implicates the Fourth Amendment, persons incarcerated after conviction retain no constitutional privacy interest against their correct identification ... The DNA Act, accordingly, does not violate the Fourth Amendment.”).
. While the majority seeks to minimize the privacy invasion of this procedure, it is important to note that the extraction of blood involves some risk, including infection and transmission of disease. Although this may be viewed as "minimal,” the risk present for any given extraction is certainly greater than zero.
. See Maj. Op. at 184, "we believe that it is appropriate to examine the reasonableness of the taking of the sample under the more rigorous Knights totality of the circumstances test rather than the Griffin special needs exception.”
. As I have mentioned above, in Edmond , the Court also noted that the intrusion in Skinner revealed “the level of alcohol in the employee's bloodstream and nothing more.” 489 U.S. at 625 , 109 S.Ct. 1402 . DNA, of course, reveals a great deal more.
. Besides Skinner and Knights, the majority also cites to Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656 , 109 S.Ct. 1384 , 103 L.Ed.2d 685 (1989), where the Court stated that "[n]either a warrant nor probable cause, nor, indeed any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Maj. Op. at 182. Von Raab is, however, another example of the majority's attempt to rely upon special needs cases while ignoring that doctrine’s limitation to ''special governmental needs beyond the normal need for law enforcement.” Id. at 665 , 109 S.Ct. 1384 .
. The Court did not decide whether the condition so extinguished that expectation that "a search by a law enforcement officer without any individualized suspicion ...” would have survived constitutional challenge. Id. at n. 6 That is the question before us.
. Judge Reinhardt does note that several Circuit Courts of Appeals have recently done so in upholding the DNA Act. See Kincade II, 379 F.3d at 830 -832 (citing cases).
. For reasons not apparent to me, my colleagues suggest that it is relevant that "law enforcement agencies are not involved with the actual search itself. It is only after the testing facility turns over the test kits to the FBI that law enforcement involvement begins.” Maj. Op. at 188. I do not understand why that makes a difference, and my colleagues do not explain why it should. The blood is initially drawn for no other purpose than turning it over to law enforcement, and the proxy my colleagues rely on can not so easily circumvent the prohibition against law enforcement involvement in suspicionless searches.
. Despite the recidivism rates my colleagues allude to, or how the recidivism of prior offenders compares to crime rates in general, it is nevertheless true that very large numbers of offenders covered by the DNA Act will simply not reoffend. Many of them, having paid their “debt to society,” will go on to lead productive law abiding lives as contributing members of their communities. “In that case, the special need ... to maintain the DNA is gone, but the record of the felon's DNA in the CODIS database is not.” Kincade II, 379 F.3d at 841 (Gould, J., concurring).
. See generally, Bureau of Justice Statistics, "Criminal Offender Statistics,” posted at: http://www.0jp.usd0j.g0v/bjs/crim0ff.h.tm# findings (last viewed February 15, 2005). The majority also finds support in the fact that probation officers have no discretion in deciding which individuals are required to give a DNA sample. While it is true that the statute clearly defines the class of individuals it applies to, “[t]he ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.” Rise v. Oregon, 59 F.3d 1556, 1570 (9th Cir.1995) (Nelson, J., dissenting).
.Judge Kozinski also warns:
[ajnyone who doubts that [the DNA database] will expand, prodded by the voracious appetite of law enforcement, has only to consider the grown of fingerprint databases.... Today, the FBI's Integrated Automated Fingerprint Identification System contains the fingerprints of over 47 million people . Because the great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence ushered in by Katz v. United States [ 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967)] it proceeded unchecked by any judicial balancing against the personal right of privacy.
379 F.3d at 873-74 . Of course, seizing fingerprints involves no penetration of the skin, seizure of body fluids, nor cataloging of the otherwise personal information stored inside our cells.
*204 I understand that the issue before us is arguably limited to certain identifying information that is stored inside our DNA. However, I think we can, and must, look beyond that in determining if this suspicionless seizure and permanent cataloguing is reasonable because it may well give the government access to a great deal of private information. The Office of Technology Assessment of the United States Congress has warned of the "possibility [of testing] DNA acquired specifically for identification purposes for disease information in a database ... This option may become more attractive over time, especially as the number and types of probes for genetic disorders increase.” Office of Technology Assessment, Genetic Witness: Forensic Uses of DNA Tests, July 1990, at 10. (OTA report cited in Kincade II, 379 F.3d at 850-51 (Reinhardt, J., dissenting)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497858. Public record. Not legal advice.