United States v. Kriesel

BETTY B. FLETCHER, Circuit Judge,

dissenting:

The majority holds, with an air of shrugging inevitability, that without a warrant, without probable cause, indeed without any suspicion whatsoever, the federal government may seize and repeatedly search the DNA of all federal felons on supervised release, regardless of their offense or their likelihood to re-offend. They sanction the inclusion of that DNA in a massive and permanent computer database, the sole purpose of which is to aid generalized criminal investigation. This offends not only the Fourth Amendment but our precedents. I respectfully dissent. 1

I. Factual Background and Statutory Framework

In March of 1999, Kriesel was convicted of a non-violent drug offense, conspiracy to possess methamphetamine with intent to distribute. He was sentenced to thirty *951 months imprisonment and placed on supervised release. After his release in February 2008, Kriesel failed three urinalyses, testing positive once for morphine and twice for marijuana. In light of his steady employment and established ties to the community, however, the court nonetheless allowed Kriesel to remain on supervised release. Since early 2005, he has consistently passed drug and alcohol tests and has remained fully employed. No specific requirement that Kriesel submit to DNA testing was included in the terms of his release. It did include language that he must “follow the instructions of the probation officer” and that he “submit his person ... to a search upon request by the U.S. Probation Office.” When requested by the probation officer to submit to DNA testing, he refused based on his objection on principle to invasion of his privacy interest without cause. This resulted in revocation of his probation, stayed, however, pending appeal.

Non-violent drug offenders like Kriesel fall within a category of federal offenders that, according to government-conducted studies, have one of the lowest rates of recidivism. U.S. Sentencing Commission, Measuring Recidivism: The Criminal History and Computation of the Federal Sentencing Guidelines 13 (May 2004), available at http://www.ussc.gov/research. htm (Commission Report) (drug trafficking offenders within the group of offenders that “are overall the least likely to recidi-vate”); U.S. Dept. of Justice, Bureau of Justice Statistics, Offenders Returning to Federal Prison, 1986-97 1, 3 (Sept.2000) (persons convicted of drug offenses were the least likely to return to prison, with lower recidivism rate than property and public-order offenses). The government does not dispute the accuracy of these studies, nor did the government come forward with any contrary evidence to suggest that nonviolent drug offenders present a high risk of recidivism.

The statute the court approves today is a revision, and significant extension, of the predecessor version of the 2000 DNA Act. Under the 2000 DNA Act, a limited number of crimes were categorized as a “qualifying ... offense,” and only supervised releasees convicted of those qualifying offenses were required to submit to DNA sampling as a condition of their release. See DNA Analysis Backlog Elimination Act, Pub.L. No. 106-546, § 3 , 114 Stat. 2726 , 2729-30 (2000) (hereinafter “2000 DNA Act”). The DNA obtained from those samples are placed within “CODIS,” the FBI’s Combined DNA Index System. CODIS is a database that acts as a clearinghouse for DNA information taken from state and federal DNA collection programs, as well as crime scenes. The offenses enumerated in the 2000 DNA Act were primarily violent crimes and crimes related to illegal sexual activity. Id.

The Justice for All Act in 2004, however, amended the DNA Act so that “any felony” now serves as a qualifying offense. Pub.L. No. 108-405, § 203 (b), 118 Stat. 2260 , 2270 (2004) (hereinafter “2004 DNA Act”). As before, that DNA is filed in the CODIS database. Notably, although the 2004 amendment brought the entire universe of non-violent federal felonies within the Act’s purview, the House Report that accompanied the amendment does not suggest that DNA evidence has any utility in solving non-violent crimes. See H.R. Rep. 108-711 (2004), reprinted in 2005 U.S.C.C.A.N. 2274. To the contrary, the clearest statement on this point is that, “When used to its full potential, DNA evidence will help solve and may even prevent some of the most serious violent crime.” 2005 U.S.C.C.A.N. at 2277 (emphasis added).

*952 In order to obtain his DNA, blood will be extracted from Kriesel while he is on supervised release, but the 2004 DNA Act contains no provision that requires the destruction or return of that biological sample (or the DNA analysis derived from it) once his period of supervised release ends. Indeed, the statute provides only for the destruction of the DNA analysis of a person included in CODIS in very limited circumstances. The burden to remove DNA from CODIS that was collected as a result of a conviction for a qualifying offense falls on the felon. Only by providing a “certified copy of a final court order establishing that such conviction has been overturned” will a person’s DNA analysis be expunged. 42 U.S.C. § 14132 (d)(l)(A)(i). Thus, once Kriesel’s DNA is placed within CODIS, it will remain there permanently and can be continually accessed and searched so long as the search is conducted by Federal, State or local “criminal justice agencies for law enforcement identification purposes.... ” 42 U.S.C. § 14132 (b)(3)(A). Simply put, once they have his DNA, police at any level of government with a general criminal investigative interest in Kriesel can tap into that DNA without any consent, suspicion, or warrant, long after his period of supervised release ends.

Although it is easy enough to conceive of the hypothetical risks to civil liberties invited by approving this kind of regime, here, there is no need to speculate. The most recent version of the DNA Act permits extraction of DNA from “individuals who are arrested, facing charges, or convicted [of qualifying felonies] or from non-United States persons who are detained under the authority of the United States.” 42 U.S.C. § 14135a(a)(l)(A) (2006). 2

II. Discussion

In our fractured opinion in United States v. Kincade, a plurality of the court reasoned that the 2000 DNA Act was properly analyzed under “a traditional assessment of reasonableness gauged by the totality of the circumstances.” 379 F.3d 813, 831 (9th Cir.2004) (en banc). That view did not, however, command a majority of the court. Judge Gould separately concurred in Kincade, arguing that the DNA Act’s regime of suspicionless searches was subject to a “special needs” analysis. Id. at 840 . Thus, although in Kincade the court ultimately upheld the constitutionality of the 2000 DNA Act, the opinion failed to produce any cohesive view on the appropriate analytical construct.

How analytically to approach the constitutionality was effectively answered by the Supreme Court in Samson v. California, 547 U.S. 843 , 126 S.Ct. 2193 , 165 L.Ed.2d 250 (2006). In Samson, the Supreme Court held that the totality-of-the-cireum-stances test was the proper mode of analysis to examine a California statute (Cal.Penal Code § 3067(a) (West 2000)) that permits suspicionless and warrantless searches of California parolees while they remain on parole. Id. at 2197. Samson, however, merely clarifies that “totality of the circumstances” is the proper analytical construct when confronted with a statute that authorizes warrantless and suspicion-less searches of parolees. Samson does not dictate, or give any support to, the outcome reached by the majority in this case.

Samson re-stated the now familiar totality-of-the-circumstances test used to *953 determine whether or not a. search is “reasonable” by “assessing, on one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. (quoting United States v. Knights, 534 U.S. 112, 118-119 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001)). In Samson, the California statute under consideration survived Fourth Amendment scrutiny based on two premises. First, Samson, by virtue of his status as a parolee, had a “severely diminished expectation ] of privacy.” Id. at 2199. Second, the Court acknowledged California’s legitimate interest in “supervising parolees” as a means to deter recidivism present in the parolee population. Id. at 2200. But, as the Court repeatedly emphasized, the governmental interest was inextricably linked to the need to supervise a parolee while he remained on parole. See id. at 2200-01 (“Thus, most parolees require intense supervision ... individualized suspicion would undermine the State’s ability to effectively supervise parolees ... the incentive-to-conceal concern justified an ‘intensive’ system for supervising probationers in Griffin. ... That concern applies with even greater force to a system of supervising parolees ... [individualized suspicion required by other State parole systems of little relevance] to our determination whether California’s supervisory system is drawn to meet its needs and is reasonable.”) (emphases added). Thus, Samson does not lend constitutional support to a statute that sanctions warrant-less and suspicionless searches untethered from an immediate supervisory need. See United States v. Weikert, 504 F.3d 1, 19 (1st Cir.2007) (Stahl, J., dissenting) (“[T]he Supreme Court [in Samson ] has now identified three limited circumstances in which a suspicionless search will survive Fourth Amendment review: (1) programmatic searches; (2) special needs searches; and (3) searches conducted as part of a state’s conditional release program. This last category is limited by the Court’s language to a state search program that is genuinely designed to improve the monitoring and reintegration of conditional releasees.”). With this framework and guidance from the Court in mind, I turn to the 2004 DNA Act.

A. Totality-of-the-Circumstances and Kincade

The most apposite precedents in this Circuit to pass on the constitutionality of the 2004 DNA Act are Samson and the plurality decision from Kincade. As noted, three years ago the far more limited 2000 DNA Act was upheld by a plurality in Kincade, relying on a totality-of-the-eir-cumstances analysis. 379 F.3d at 838-40 . The plurality, however, was careful to note that their decision was limited to the version of the Act before the court, a version that targeted violent criminals. Distinguishing state programs that collected information from “non-violent drug offenders,” the plurality emphasized that “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.” Id. at 819 n. 9. The plurality made clear that their decision therefore did not concern “the authority of the federal government ... to pass less narrowly tailored legislation.” Id. (emphasis added). Thus, while Kincade provides some guidance, by its own terms it does not purport to decide whether or not the “less narrowly tailored legislation” before us today passes Fourth Amendment scrutiny. See id.

Although none are controlling, the majority places great weight on recent decisions from other circuits that have upheld *954 the 2004 DNA Act against a Fourth Amendment challenge. Maj. Op. at 945-47, 950. A closer look at those cases reveals that the precise issues before us today have been treated with more breadth than depth. Two of those decisions relied on a “special needs” test which, in light of Samson, is the improper analytical method for analysis of the 2004 DNA Act. See United States v. Amerson, 483 F.3d 73, 78 (2d Cir.2007); United States v. Hook, 471 F.3d 766, 772-74 (7th Cir.2006). 3

The decisions of the Eighth and Eleventh Circuits contain little to no analysis of the interests at stake when the government subjects all non-violent felony offenders to compulsory DNA sampling. In United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir.2006), the court’s discussion is devoted almost entirely to choosing between a special needs or totality-of-the-circumstances analysis. Once the totality-of-the circumstances test is chosen, Kraklio summarily concludes with a one-sentence determination that the 2004 DNA Act is constitutional under that standard. Id. at 925 . Similarly, in an unpublished opinion the Eleventh Circuit upholds the 2004 DNA Act based on circuit precedent concerning a staterbased DNA collection statute, without engaging in any analysis whatsoever as to the government’s interests in permanently maintaining the DNA of non-violent federal felons. United States v. Castillo-Lagos, 147 Fed.Appx. 71, 75 (11th Cir.2005). In Weikert , the First Circuit engages in a more substantial totality-of-the-eircumstances analysis than the other decisions, but it does not consider how lowered recidivism rates among non-violent offenders would affect the government’s interests under that analysis. 504 F.3d at 12-13 .

In United States v. Conley, in order to justify the 2004 DNA Act under a special needs analysis, the Sixth Circuit discussed with approval government data that suggested that white-collar crime had recidivism rates “in certain groups,” close to recidivism rates for firearms and robbery offenses. 453 F.3d 674, 679 (6th Cir.2006). 4 Conley, however, is silent on recidivism rates for non-violent drug offenders like Kriesel, and the court in Conley does not cite to any recidivism argument advanced by the government when trying to justify the 2004 DNA Act under the totality of the circumstances. Id. at 680-81 .

Only Banks v. United States, 490 F.3d 1178 (10th Cir.2007), genuinely addresses whether the government’s interests in maintaining a permanent DNA collection of felons on supervised release are diminished in the case of non-violent offenders. The Tenth Circuit in Banks concedes that, “[t]o be sure, DNA might prove less valuable in solving non-violent crimes than violent crimes, making the Government’s interest in testing more compelling with respect to felons convicted of violent crimes.” 490 F.3d at 1189-90 . The court goes on to explain away this distinction, however, by characterizing a supervised releasee’s privacy interests as virtually non-existent and contending that “the ef *955 fectiveness of the Government’s plan need not be high where the objective is significant and the privacy intrusion is minimal.” Id. at 1190 .

I have two problems with this analysis. First, Banks places such little weight on a releasee’s privacy interest as to make it a meaningless consideration. Second, the argument that a “significant” government objective is sufficient even if the statute under consideration does not actually promote that objective is sophistry — and is shockingly wrong. Knights instructs that evaluating the reasonableness of a search for Fourth Amendment purposes should be grounded in the “degree to which it is needed for the promotion of legitimate governmental interests.” 534 U.S. at 118—119, 122 S.Ct. 587 (emphasis added) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999)). It simply cannot be correct that a statute authorizing warrantless searches can pass Fourth Amendment scrutiny with nothing more than a hypothetical interest advanced by the government but not actually promoted by the statute.

The Tenth Circuit in Banks also cited statistical data collected from state prisons in 1994 indicating that “non-violent offenders have higher recidivism rates than the general population.” Id. at 1191 (citing U.S. Dept, of Justice, Bureau of Justice Statistics, Profile of Nonviolent Offenders Exiting State Prison (2004), http: //www. ojp.usdoj.gov/bjs/pub/pdfipnoesp.pdf). 5 Working with these statistics, the court in Banks goes on to argue without authority or empirical evidence that non-violent offenders who recidivate are “committing crimes that DNA might solve (for example, violent offenses, drug offenses, and property offenses.).” Id. This unsupported leap is remarkable, given that just two pages earlier the court concedes that “DNA might prove less valuable in solving nonviolent crimes[.]” Id. at 1189 . 6

Because of the substantial erosion of Fourth Amendment protection posed by the 2004 DNA Act, we should not uncritically adopt decisions from other Circuits where controlling law in this Circuit does not dictate the same outcome. Thus, with the limitations from Kincade and Samson as a guide, we should consider Kriesel’s privacy interests as affected by the 2004 DNA Act on the one hand, balanced against the interests advanced by the government on the other.

B. Kriesel’s Privacy Interests

It is true that conditional releasees like Kriesel have diminished privacy expectations. Samson, 126 S.Ct. at 2199 ; Kincade, 379 F.3d at 833 . But as the plurality observed in Kincade, diminished does not mean extinguished. 379 F.3d at 835 (“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.”). Thus, while Kriesel cannot claim the level *956 of protection afforded ordinary citizens under the Fourth Amendment, his privacy interests cannot be treated as weightless in the reasonableness balance.

In considering that privacy interest, I also cannot overlook that the search here is not limited to the initial extraction of a biological sample from Kriesel, and with it, his DNA. Rather, the warrantless “search” permitted by the 2004 DNA Act extends to repeated searches of his DNA whenever the government has some minimal investigative interest. Kincade, 379 F.3d at 873 (Kozinski, J., dissenting) (“[I]t is important to recognize that the Fourth Amendment intrusion here is not primarily the taking of the blood, but seizure of the DNA fingerprint and its inclusion in a searchable database.”). Thus, I look to the interests advanced by the government, mindful of the fact that the Act permits this ongoing search of Kriesel’s DNA for his lifetime. 7

C. Government’s Interests

In Kincade, the plurality pointed to three interests it deemed “monumental” in balancing the government’s interests under the 2000 DNA Act. 379 F.3d at 839 . First, it relied on the use of DNA to provide “a means of identification that can be used to link conditional releasees to crimes committed while they are at large,” in order to ensure that a releasee complies with the terms of his or her release. Id. at 838 . Second, DNA profiling was claimed to provide a deterrent effect that “fosters society’s enormous interest in reducing recidivism.” Id. at 839 . Last, the plurality pointed to the use of DNA to solve past crime. Id. As the majority notes, these same interests are advanced by the government once again to defend the 2004 DNA Act.

The interest in ensuring compliance with terms of release, while obviously legitimate, must be viewed in light of the Court’s decision in Samson. As Samson explained, warrantless and suspicionless searches of parolees are sometimes justified under a totality-of-the-circumstances analysis provided that they are based on a legitimate supervisory need. 126 S.Ct. at 2200-01 . But, unlike the California statute under consideration in Samson, the 2004 DNA Act permits those searches to continue once the period of supervised release has ended, enabling searches divorced from the government’s supervisory interests. On its face, the 2004 DNA Act allows only a releasee’s DNA profile to be removed if his or her underlying conviction is later overturned. 42 U.S.C. § 14132 (d)(1)(A)(i). Thus, while ensuring compliance with the terms of supervised release stands as a credible government objective, the 2004 DNA Act is far broader than necessary to achieve that objective.

The majority disingenuously refuses to confront the fact that the 2004 DNA Act clearly permits the retention of Kriesel’s DNA once his term of supervised release is over. Apparently, it defines “the precise circumstances before us” as the rights of a parolee while on parole, with no consideration of the fact that his DNA will be retained in CODIS and be searchable for the rest of Kriesel’s lifetime. Maj. Op. at 949; see also Kincade, 379 F.3d at 841 (Gould, J., concurring in the judgment) (“Once those previously on supervised release have wholly cleared their debt to society, the question may be raised, *957 ‘Should the CODIS entry be erased?’”). But we have previously found statutes not “limited by appropriate regulations so as to preclude general searches,” unconstitutionally overbroad without waiting for the discrete violation of the Fourth Amendment enabled by that statute. Rush v. Obledo, 756 F.2d 713, 723 (9th Cir.1985) (invalidating portion of California statute that allowed warrantless searches of family day care centers without appropriate narrowing regulations). Without reaching whether the 2004 DNA Act is independently invalid under the Fourth Amendment for that reason, the fact that a DNA entry is permanently lodged in CODIS at the very least detracts from the weight afforded the government’s claim that the statute is truly designed as a supervisory tool.

Next, the deterrent effect advanced by the government is seriously undermined here because Kriesel has offered unrebut-ted data demonstrating that rates of recidivism are among the lowest for non-violent drug offenders. Measuring Recidivism: The Criminal History and Computation of the Federal Sentencing Guidelines at 13; Offenders Returning to Federal Prison, 1986-97 at 1 and 3. The majority excuses the government’s failure to rebut Kriesel’s evidence of low recidivism rates by asserting that he “is already a recidivist, as he violated the terms of his release when he tested positive for controlled substances.” Op. at 949-50. Ironically, the authorities had all the tools they needed to detect the recidivism without resort to DNA, nor was his conduct a crime except as it violated parole.

The majority reasons that a statute permitting suspicionless extraction of DNA from all persons within a population that has low rates of recidivism is permissible because there is a basis to conclude that Kriesel himself will re-offend. Thus, the majority allows the government to escape its failure to justify a program that requires participants to submit their DNA without any suspicion, because it has suspicion in this particular case. 8 This syllogism does not help the government do what it must — make some showing that extracting DNA from non-violent drug offenders discourages those persons from re-offending.

Finally, the majority reasons that creating a DNA profile of non-violent felons like Kriesel will “contribute] to the solution of past crimes.” Maj. Op. at 950. I agree in principle that a DNA program with some demonstrable effect on solving crime within the population profiled may satisfy the Fourth Amendment. Rise v. Oregon, 59 F.3d 1556, 1561 (9th Cir.1995) (“The defendants produced uncontroverted evidence documenting the high rates of recidivism among certain types of murderers and sexual offenders. Moreover, investigations of murders and sexual offenses are more likely to yield the types of evidence from which DNA information can be derived, such as blood, semen, saliva, and hair evidence, than property crimes or other offenses committed without substantial personal contact.”). But the totality-of-the-cireumstances test is not so standardless that the court may invent speculative justifications when the government offers none of its own. The majority’s suggestion that non-violent crimes have victims is true as far as it goes, but it does not go far enough. Kincade exhorted the closure brought to victims of violent crimes, but *958 that is only half of the analysis. It justified the 2000 DNA Act on the grounds that the statute actually contributes “to the solution of past crimes.” 379 F.3d at 839 . Thus, it is not enough for the majority or the government to simply argue that nonviolent crimes have victims; rather, there must be some .basis to believe that DNA profiling actually aids those victims. The government placed nothing before the court to speak to that aspect of the inquiry.

Because the government interests articulated in Kincade and re-constituted here are not sufficiently weighty to overcome Kriesel’s privacy interests, I would hold that the warrantless searches permitted by the 2004 DNA Act are unreasonable, and that the Act fails to survive review under a totality-of-the-circumstances test.

III. Conclusion

When the 2000 DNA Act narrowly survived Fourth Amendment review in this court just three years ago, we were told to take solace in the “limited nature of[the] holding.” Kincade, 379 F.3d at 835 . Yet, by invoking the analysis from Kincade, the majority approves, without flinching, a statute that effects a far broader and far less justified erosion of the Fourth Amendment, extending Kincade without acknowledging it does so. However well-intentioned it may be, I find cold comfort in the majority’s assurance that its decision today is “confined to the precise circumstances before us.” Maj. Op. at 949.

I do not question the efficacy of the government’s methods. An ever-expanding and unerasable electronic index of DNA profiles, monitored by the government’s unblinking digital eye, may no doubt prove to be an effective law enforcement tool. But our compact with the government requires constitutional means, not just effective ends. Once expediency infects the Fourth Amendment analysis, as it has with the majority’s blessing of the “significant” crime-solving purposes of DNA profiling, there is no limiting principle beyond what the government says it needs. The line should be drawn far short of where the majority puts it. I dissent.

. I concur in Part III of the majority's opinion and analysis of Kriesel’s APA challenge. For reasons explained below, however, that portion of the opinion merely holds that the Attorney General did not violate the APA’s procedural requirements in promulgating regulations to implement an unconstitutional statute.

. There is a parallel provision of the act that allows for an arrestee's DNA to be expunged only if the Attorney General receives "a final court order establishing that [] charge[s] [have] been dismissed or [have] resulted in an acquittal or that no charge was filed within the applicable time period." 42 U.S.C. § 14132 (d)(1)(A)(ii).

. The Supreme Court has considered and rejected the contention that the government’s ever-present generalized interest in criminal law enforcement qualifies as a “special need.” Indianapolis v. Edmond, 531 U.S. 32, 41-42 , 121 S.Ct. 447 , 148 L.Ed.2d 333 (2000). Thus, even if it were the proper method of analysis (and after Samson it is not), the 2004 DNA Act would fail to survive Fourth Amendment review under that rubric. Kincade, 379 F.3d at 854-57 (Reinhardt, J., dissenting) (analyzing 2000 DNA Act under special needs).

. The appellant in Conley had been convicted of bank fraud, committed while she was on probation for a similar fraud offense. 453 F.3d at 674-75 .

. The statistics relied on in Banks are undermined by the government data regarding federal offenders placed in the record by Kriesel here, particularly drug offenders.

. The study of state offenders relied on by the court in Banks does not indicate whether the "violent offenses” are.of a type where DNA evidence could be of assistance. Profile of Nonviolent Offenders Exiting State Prison at 4. The other two categories, "property offenses” and "drug offenses,” are not defined or characterized by the study as violent offenses.

. The penalties for unauthorized disclosure of DNA held in CODIS do nothing to address this, as disclosure of Kriesel’s DNA for general criminal investigation is a “permissive use[]” under the Act. See 42 U.S.C. § 14135e(b); 42 U.S.C. § 14132 (b)(3)(A) (disclosure permitted “to criminal justice agencies for law enforcement identification purposes”).

. Moreover, as noted Kriesel’s prior drug lapses were detected and addressed without the need for his DNA profile — which the government does not yet have. There is nothing in the record to suggest that Kriesel would have been deterred from those lapses if the government had possessed his DNA.