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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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No. 02-50380
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379 F.3d 813, 2004.C09.0000616 <http://www.versuslaw.com>, 2004
Daily Journal D.A.R. 10,196, 4 Cal. Daily Op. Serv. 7542
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August 18, 2004
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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THOMAS
CAMERON KINCADE,
DEFENDANT-APPELLANT.
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Appeal from the United States District Court for the Central District
of California Dickran M. Tevrizian, District Judge, Presiding D.C. No.
CR-93-00714-RAG-01
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Counsel
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Maria E. Stratton, Monica Knox, and Michael Tanaka, Federal Public
Defender, Los Angeles, California, for the appellant.
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Debra W. Yang, Steven D. Clymer, Ronald L. Cheng, Jacqueline
Chooljian, John B. Owens, U.S. Attorney's Office, Los Angeles, California,
and Jonathan L. Marcus, U.S. Department of Justice, Washington, D.C., for
the appellee.
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Marc Rotenberg and Marcia Hofmann, Electronic Privacy Information
Center, Washington, D.C., for amicus curiae Electronic Information Privacy
Center, in support of the appellant.
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Melinda Bird and Michelle Uzeta, Protection & Advocacy, Inc., Los
Angeles, California, for amicus curiae Protection & Advocacy, Inc., in
support of the appellant.
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Timothy P. O'Toole, Todd Cox, Alison Flaum, and Jennifer Di Toro,
Public Defender Service for the District of Columbia, Washington, D.C.,
for amicus curiae Public Defender Service for the District of Columbia, in
support of the appellant.
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Bill Lockyer, Robert R. Anderson, Jo Graves, Gerald A. Engler, George
F. Hindall, III, and Enid A. Camps, California Office of the Attorney
General, San Francisco, California, Gregg D. Renkes, Alaska Department of
Law, Juneau, Alaska, Mark J. Bennett, Hawaii Department of the Attorney
General, Idaho Office of Attorney General, Mike McGrath, Montana
Department of Justice, Helena, Montana, Hardy Myers, Oregon Department of
Justice, Salem, Oregon, Christine O. Gregoire, Washington Office of the
Attorney General, Olympia, Washington, for amici curiae States of
California, Alaska, Hawaii, Idaho, Montana, Oregon, and Washington, in
support of the appellee.
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Before: Mary M. Schroeder, Chief Judge, Harry Pregerson, Stephen R.
Reinhardt, Alex Kozinski, Diarmuid F. O'Scannlain, Michael D. Hawkins,
Barry G. Silverman, Kim M. Wardlaw, Ronald M. Gould, Richard R. Clifton,
and Consuelo M. Callahan, Circuit Judges.
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The opinion of the court was delivered by: O'scannlain, Circuit
Judge
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FOR PUBLICATION
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Argued and Submitted March 23, 2004-San Francisco,
California
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Opinion by Judge O'Scannlain; Concurrence by Judge Gould; Dissent by
Judge Reinhardt; Dissent by Judge Kozinski; Dissent by Judge
Hawkins
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OPINION
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We must decide whether the Fourth Amendment permits compulsory DNA
profiling of certain conditionally-released federal offenders in the
absence of individualized suspicion that they have committed additional
crimes.
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I.
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A.
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Pursuant to the DNA Analysis Backlog Elimination Act of 2000 ("DNA
Act"), Pub. L. No. 106-546, 114 Stat. 2726 (2000), individuals who have
been convicted of certain federal crimes*fn1 and who are incarcerated, or on parole, probation, or
supervised release*fn2 must provide federal authorities with "a tissue,
fluid, or other bodily sample . . . on which a[n] . . . analysis of th[at
sample's] deoxyribonucleic acid (DNA) identification information" can be
performed. 42 U.S.C. §§ 14135a(c)(1)-(2); id. at §§ 14135a(a)(1)-(2).
Because the Federal Bureau of Investigation ("the Bureau") considers DNA
information derived from blood samples to be more reliable than that
obtained from other sources (in part because blood is easier to test and
to preserve than hair, saliva, or skin cells), Bureau guidelines require
those in federal custody and subject to the DNA Act ("qualified federal
offenders") to submit to compulsory blood sampling. See Nancy Beatty
Gregoire, Federal Probation Joins the World of DNA Collection, 66 Fed.
Probation 30, 31 (2002). Failure "to cooperate in the collection of that
sample [is] . . . a class A misdemeanor," punishable by up to one year's
imprisonment and a fine of as much as $100,000. 42 U.S.C. § 14135a(a)(5);
18 U.S.C. §§ 3571 & 3581.*fn3
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Once collected by a phlebotomist, qualified federal offenders' blood
samples are turned over to the Bureau for DNA analysis-the identification
and recording of an individual's "genetic fingerprint."*fn4 Through the use of short tandem repeat technology
("STR"), the Bureau analyzes the presence of various alleles*fn5 located at 13 markers (or loci) on DNA present in the
specimen. These STR loci are each found on so-called "junk DNA"-that is,
non-genic stretches of DNA not presently recognized as being responsible
for trait coding*fn6 -and "were purposely selected because they are not
associated with any known physical or medical characteristics." H.R. Rep.
No. 106-900(I) at *27. Because there are observed group variances in the
representation of various alleles at the STR loci, however, DNA profiles
derived by STR may yield probabilistic evidence of the contributor's race
or sex. Future of Forensic DNA Testing 35, 39-42.*fn7 Even so, DNA profiles generated by STR are highly
individuated: Due to the substantial number of alleles present at each of
the 13 STR loci (between 7 and 20, see Future of Forensic DNA Testing 41)
and widespread variances in their representation among human beings, the
chance that two randomly selected individuals will share the same profile
are infinitesimal-as are the chances that a person randomly selected from
the population at large will present the same DNA profile as that drawn
from crime-scene evidence. See Future of Forensic DNA Testing 19-22,
39-42.
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Once STR has been used to produce an individual's DNA profile, the
resulting record*fn8 is loaded into the Bureau's Combined DNA Index System
("CODIS")-a massive centrally-managed database linking DNA profiles culled
from federal, state, and territorial DNA collection programs, as well as
profiles drawn from crime-scene evidence, unidentified remains, and
genetic samples voluntarily provided by relatives of missing persons. 42
U.S.C. §§ 14132(a)-(b).*fn9 As of March 2004, CODIS contained DNA profiles drawn
from 1,641,076 offenders and 78,475 crime scenes. Fed. Bureau of
Investigation,
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NDIS Statistics, available at http://www.fbi.gov/hq/lab/
codis/clickmap.htm (last visited May 11, 2004). Of those profiles, 298,767
offender records and 10,270 forensic samples originated in the states
comprising the Ninth Circuit. See id.
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CODIS can be used in two different ways. First, law enforcement can
match one forensic crime scene sample to another forensic crime scene
sample, thereby allowing officers to connect unsolved crimes through a
common perpetrator. Second, and of perhaps greater significance, CODIS
enables officials to match evidence obtained at the scene of a crime to a
particular offender's profile. In this latter capacity, CODIS serves as a
potent tool for monitoring the criminal activity of known offenders.
Through March 2004, Bureau data indicated that CODIS has aided some 16,160
investigations nationwide-1,710 within the Ninth Circuit. Fed. Bureau of
Investigation, Investigations Aided, available at
http://www.fbi.gov/hq/lab/codis/aidedmap.htm (last visited May 11,
2004).
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B.
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On July 20, 1993, driven by escalating personal and financial
troubles, decorated Navy seaman Thomas Cameron Kincade robbed a bank using
a firearm in violation of 18 U.S.C. §§ 2113(a) & (d) and 18 U.S.C. §
924(c)(1). He soon pleaded guilty to those charges and was sentenced to 97
months' imprisonment, followed by three years' supervised release. Among
others, terms of his release required him to participate in an outpatient
substance abuse program; not to commit another federal, state, or local
crime; and to follow the instructions of his probation
officer.
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Shortly after his August 2000 release from federal prison, Kincade
submitted a urine sample which tested positive for cocaine. A warrant was
issued for his arrest in early October, and on November 13, the district
court reinstated Kincade's original term of supervision. In April 2001,
Kincade admitted relapsing into cocaine abuse and requested placement in a
residential drug treatment program. No action was taken on his request,
and on May 21 and May 28, 2001, Kincade again submitted cocaine-positive
urine samples. As a result, the district court modified the terms of
Kincade's supervised release on June 7, 2001 to include treatment in a
residential drug program. Thereafter, Kincade appears to have begun making
progress in reforming his life.*fn10
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On March 25, 2002, Kincade's probation officer asked him to submit a
blood sample pursuant to the DNA Act.*fn11 He refused, eventually explaining that his
objections were purely a matter of personal preference-in his words, "not
a religious conviction."*fn12 Kincade's probation officer suggested he contact his
attorney for advice, and also explained that if he changed his mind he
could submit a blood sample on April 16, 2002. On April 4, 2002, Kincade
notified the Probation Office of his intention not to comply and, as
promised, he refused to appear for DNA profiling on April 16. On May 7,
2002, Kincade's probation officer again contacted him in an effort to
determine whether there was some way they could work through the issue.
Kincade indicated that he would comply with the requirements of the DNA
Act only if threatened with imposition of a significant term of
incarceration. Lacking any alternative, Kincade's probation officer
informed the district court that Kincade had refused to submit the blood
sample required by the DNA Act. He also recommended revocation of
Kincade's supervised release, and reincarceration.
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In briefing to the district court prior to a scheduled revocation
hearing, Kincade challenged the constitutionality of the DNA Act on
grounds that it violated the Ex Post Facto Clause, the Fourth Amendment,
and separation of powers principles embodied in Article III and the Due
Process Clause.*fn13
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On July 15, 2002, Kincade appeared at a revocation hearing before U.S.
District Judge Dickran Tevrizian. After stating on the record that he was
inclined to hold the DNA Act constitutional, Judge Tevrizian offered
Kincade another opportunity to submit to DNA profiling in lieu of
proceeding with the revocation hearing. Kincade consulted with counsel,
who quickly informed the court that Kincade had again declined to
reconsider his refusal to submit to DNA profiling.
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Following argument, Judge Tevrizian rejected Kincade's constitutional
challenges to the DNA Act. Concluding that Kincade had violated the terms
of his supervised release by refusing to follow his Probation officer's
lawful instruction to provide a blood sample, Judge Tevrizian sentenced
Kincade to four months' imprisonment and two years' supervised release.
Judge Tevrizian immediately stayed Kincade's sentence of imprisonment, and
we expedited review of his appeal. On April 14, 2003-while this appeal was
pending, and while Kincade was serving his additional supervised
release-Kincade again tested positive for drug use. Consequently, Judge
Tevrizian lifted his stay of Kincade's sentence and, once in custody,
Kincade finally was forced to submit to DNA profiling. He persists in his
challenge to the Act.
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II.
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While "[i]t would be foolish to contend that the degree of privacy
secured to citizens by the Fourth Amendment has been entirely unaffected
by the advance of technology," Kyllo v. United States, 533 U.S. 27, 33-34
(2001), we begin-as always-with first principles.*fn14
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A.
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[1] Pursuant to the Fourth Amendment, "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized." U.S. Const. amend. IV. "The touchstone of our
analysis under the Fourth Amendment is always 'the reasonableness in all
the circumstances of the particular governmental invasion of a citizen's
personal security.' " Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977)
(quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).*fn15
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Ordinarily, the reasonableness of a search depends on governmental
compliance with the Warrant Clause, which requires authorities to
demonstrate probable cause to a neutral magistrate and thereby convince
him to provide formal authorization to proceed with a search by issuance
of a particularized warrant. United States v. United States Dist. Ct., 407
U.S. 297, 315-16 (1972); see also Groh v. Ramirez, 540 U.S. __, __, 124 S.
Ct. 1284, 1290-91 (2004). However, the general rule of the Warrant Clause
is not unyielding. Under a variety of conditions, law enforcement may
execute a search without first complying with its dictates. For instance,
police may execute warrantless searches incident to a lawful arrest: It is
reasonable for authorities to search an arrestee for weapons that might
threaten their safety, or for evidence which might be destroyed. See,
e.g., Chimel v. California, 395 U.S. 752, 762-63 (1969); see also Thornton
v. United States, 541 U.S. __, 124 S. Ct. 2127, 2132 (2004). And even
outside the context of a lawful arrest supported by probable cause,
officers are likewise authorized to conduct a warrantless protective
pat-down of individuals they encounter in the field so long as their
concerns are justified by reasonable suspicion of possible danger. See,
e.g., Terry, 392 U.S. at 27.
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[2] The Court has also sanctioned several general search regimes that
are free from the usual warrant-and-probable cause requirements. Though
not necessarily mutually-exclusive, three categories of searches help
organize the jurisprudence. The first can be called "exempted areas."
Included here are searches conducted at the border,*fn16 in prisons,*fn17 and at airports and entrances to government
buildings.*fn18
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The second category is typically labeled "administrative" searches,
though it has not always been given that label.*fn19 This class includes inspections of closely-regulated
businesses, see, e.g., Burger, 482 U.S. at 702-04 ("[W]here the privacy
interests of the owner are weakened and the government interests in
regulating particular businesses are concomitantly heightened, a
warrantless inspection of commercial premises may well be reasonable
within the meaning of the Fourth Amendment."); United States v. Biswell,
406 U.S. 311, 317 (1972), and extends to other routine regulatory
investigations. See, e.g., Camara v. Mun. Ct. of S.F., 387 U.S. 523,
535-539 (1967) (authorizing municipal "area inspections" designed to
monitor compliance with building safety codes).
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[3] A final category of suspicionless searches is referred to as
"special needs," and in recent years, the Court has devoted increasing
attention to the development of the accompanying analytical doctrine. See
Illinois v. Lidster, 540 U.S. __, 124 S. Ct. 885 (2004) (upholding a
highway checkpoint designed to enable police to question citizens about a
recent crime); Bd. of Educ. v. Earls, 536 U.S. 822 (2002) (upholding a
program that subjected all students participating in extracurricular
activities to submit to random, suspicionless drug testing); Ferguson v.
City of Charleston, 532 U.S. 67 (2001) (invalidating a public hospital's
non-consensual drug testing of maternity patients); Edmond, 531 U.S. at 48
(invalidating a roadside checkpoint designed to discover and interdict
illegal drugs); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)
(upholding a program subjecting student athletes to random, suspicionless
drug testing); see also Nat'l Treasury Employees Union v. Von Raab, 489
U.S. 656 (1989) (upholding suspicionless drug testing of certain U.S.
Customs officials); Skinner, 489 U.S. at 634 (upholding compulsory blood
and urine tests of railroad employees involved in certain train
accidents); Griffin, 483 U.S. at 879-80 (upholding a warrantless search of
a probationer's residence).
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[4] For the most part, these cases involve searches conducted for
important non-law enforcement purposes in contexts where adherence to the
warrant-and-probable cause requirement would be impracticable. Thus, the
Court explained in New Jersey v. T.L.O. that "preservation of order and a
proper educational environment requires close supervision of
schoolchildren, as well as the enforcement of rules against conduct that
would be perfectly permissible if undertaken by an adult." 469 U.S. at
339. At the same time, the Court explained, the warrant and probable cause
requirements are ill-suited to the pressing needs of public schools. Id.
at 339-40. The Justices therefore found "that the school setting requires
some easing of the restrictions to which searches by public authorities
are ordinarily subject," and held that "legality of a search of a student
should depend simply on the reasonableness, under all the circumstances,
of the search." Id. at 340-41. As Justice Blackmun described the Court's
rationale in his concurring opinion, it was the school environ-ment's
"special needs, beyond the normal need for law enforcement, [that] ma[d]e
the warrant and probable-cause requirement impracticable."Id. at 351
(Blackmun, J., concurring).
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1.
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Almost as soon as the "special needs" rationale was articulated,
however, the Court applied special needs analysis in what seemed-at least
on the surface-to be a clear law enforcement context. At issue in Griffin
was a warrantless search of a probationer's home, instigated and carried
out under the direction of law enforcement officials acting with what
appeared to be pure law enforcement motives. The facts of the search are
particularly illuminating. In early 1983, a detective in the Beloit,
Wisconsin police department contacted Griffin's probation officer's
supervisor with information that Griffin might have weapons in his
apartment. Unable to secure the cooperation of Griffin's own probation
officer in the execution of a search, the supervisor enlisted another
probation officer for assistance and promptly accompanied three
plainclothes policemen to Griffin's apartment. The ensuing search
uncovered a weapon, Griffin, 483 U.S. at 871, and Griffin was arrested and
charged with possession of a firearm by a felon. He eventually moved to
suppress the evidence uncovered during the warrantless search of his
residence. Id. at 872.
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On eventual appeal to the Supreme Court, the Justices
explained:
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A State's operation of a probation system, like its operation of a
school, government office or prison, or its supervision of a regulated
industry, likewise presents 'special needs' beyond normal law enforcement
that may justify departures from the usual warrant and probable-cause
requirements. Probation, like incarceration, is a form of criminal
sanction imposed by a court upon an offender after verdict, finding, or
plea of guilty. . . . [I]t is always true of probationers (as we have said
it to be true of parolees) that they do not enjoy the absolute liberty to
which every citizen is entitled, but only conditional liberty properly
dependent on observance of special probation restrictions. These
restrictions are meant to assure that the probation serves as a period of
genuine rehabilitation and that the community is not harmed by the
probationer's being at large. These same goals require and justify the
exercise of supervision to assure that the restrictions are in fact
observed.
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Id. at 873-75 (citations, quotations, and alterations omitted).
Carefully noting that these "special needs"-operation of a system of
conditional release characterized by close supervision of convicted
offenders-did not operate wholly to eliminate the Fourth Amendment rights
of those subject to its strictures, the Court observed that the probation
context nonetheless necessitated a relaxation of the usual
warrant-and-probable cause requirement. Id. at 876-79.
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In such circumstances it is both unrealistic and destructive of the
whole object of the continuing probation relationship to insist upon the
same degree of demonstrable reliability of particular items of supporting
data, and upon the same degree of certainty of violation, as is required
in other contexts. In some cases-especially those involving drugs or
illegal weapons-the probation agency must be able to act based upon a
lesser degree of certainty than the Fourth Amendment would otherwise
require in order to intervene before a probationer does damage to himself
or society.
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Id. at 879. Thus, the Court concluded, the Constitution permits the
execution of probation and parole searches based on no more than
reasonable suspicion-even where the search at issue is triggered by law
enforcement information and motivated by apparent law enforcement
purposes. Id. at 880.
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2.
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[5] Notwithstanding Griffin's apparent focus on the crucial law
enforcement goals of probation and parole,*fn20 however, the Court's more recent "special needs"
cases have emphasized the absence of any law enforcement motive underlying
the challenged search and seizure. Two cases are particularly noteworthy.
In Edmond, the Court addressed whether the Indianapolis, Indiana police
department lawfully could operate a program of random vehicle checkpoints
in an effort to interdict illegal drugs. Under the program, officers
randomly would stop passing vehicles at several locations throughout the
city. Once a vehicle was detained, officers would request its driver's
license and registration, conduct a non-invasive visual inspection of the
car's interior, and lead a narcotics-detention dog around the vehicle's
exterior. Edmond, 531 U.S. at 35. During the program's operation, police
temporarily detained more than 1100 vehicles and arrested approximately
100 individuals (approximately half for drug violations and half for other
offenses). Two of the detained motorists eventually sued, alleging that
such suspicionless law enforcement detentions violated the Fourth
Amendment.
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Siding with the motorists, the Court explained that it had never
approved a checkpoint program "whose primary purpose was to detect
evidence of ordinary criminal wrongdoing." Id. at 38. To reach that
conclusion, the Court had to distinguish two precedents: United States v.
Martinez-Fuerte, 428 U.S. 543 (1976), which upheld suspicionless border
checkpoints designed to intercept illegal aliens, and Mich. Dep't of State
Police v. Sitz, 496 U.S. 444 (1990), which upheld suspicionless roadside
sobriety checkpoints. To do so, the Court explained that the former was
justified by a unique government interest in border control, id. at 37-39,
41, and the latter by "the type of immediate, vehicle-bound threat to life
and limb" posed by drunk drivers. Id. at 39, 43. In contrast,
Indianapolis's program was justified "only by the generalized and
ever-present possibility that interrogation and inspection may reveal that
any given motorist has committed some crime." Id. at 44. In such
circumstances, the Court flatly "decline[d] to suspend the usual
requirement of individualized suspicion." Id.
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3.
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Edmond's emphasis on the non-law enforcement focus of sustainable
suspicionless searches was soon strengthened in Ferguson. There, the Court
addressed whether a public hospital lawfully could share pregnant women's
positive drug tests with law enforcement in an effort to help solve the
epidemic of "crack babies." Ten mothers arrested because of the hospital's
collaboration with the police eventually sued the hospital and the City of
Charleston, South Carolina, alleging that the Fourth Amendment forbids
suspicionless drug screening of their urine for law enforcement purposes.
Ferguson, 532 U.S. at 71-73.
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As in Edmond, the Court again sided with the plaintiffs. It began by
observing that the infringement occasioned by the hospital's sharing
private medical data with law enforcement constituted a far more egregious
intrusion into patients' privacy rights than the suspicionless urinalyses
upheld in the Court's prior drug testing cases:
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In the previous four cases, there was no misunderstanding about the
purpose of the test or the potential use of the test results, and there
were protections against the dissemination of the results to third
parties. The use of an adverse test result to disqualify one from
eligibility for a particular benefit, such as a promotion or an
opportunity to participate in an extracurricular activity, involves a less
serious intrusion on privacy than the unauthorized dissemination of such
results to third parties. The reasonable expectation of privacy enjoyed by
the typical patient undergoing diagnostic tests in a hospital is that the
results of those tests will not be shared with non-medical personnel
without her consent. In none of our prior cases was there any intrusion
upon that kind of expectation.
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Id. at 78.
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Crucially, the Court continued, the hospital's program also had
purposes clearly distinguishable from those of the Court's other
urinalysis cases:
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In each of those earlier cases, the 'special need' that was advanced
as a justification for the absence of a warrant or individualized
suspicion was one divorced from the State's general interest in law
enforcement. . . . In this case, however, the central and indispensable
feature of the policy from its inception was the use of law enforcement to
coerce the patients into substance abuse treatment.
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Id. At bottom, because "the immediate objective of the searches was to
generate evidence for law enforcement purposes," id. at 83 (emphasis in
original),*fn21 and in light of "the extensive involvement of law
enforcement officials at every stage of the policy," id. at 84, the Court
concluded that "this case simply does not fit within the closely guarded
category of 'special needs.' " Id.
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4.
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While these recent cases may seem to be moving toward requiring that
any search conducted primarily for law enforcement purposes must be
accompanied by at least some quantum of individualized suspicion, the
Court signaled the existence of possible limitations in United States v.
Knights, 534 U.S. 112 (2001). At issue there was a warrantless search of a
probationer long suspected of having committed crimes targeting Pacific
Gas & Electric ("PG&E;) facilities. Shortly after Knights was
placed on probation for an unrelated drug offense, an arson targeting a
PG&E;electrical transformer caused approximately $1.5 million in
damage. Id. at 114-15.
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On a hunch that Knights may have been involved (some prior crimes
against PG&E;had coincided with Knights's court appearances), a
sheriff's deputy established surveillance of Knights's apartment. In the
wee hours, he observed Knights's suspected accomplice leave the apartment
carrying three cylindrical items-potential pipe bombs-toward a nearby
waterway. Shortly thereafter, the deputy heard three splashes, and watched
Knights's compatriot return empty-handed to the residence before driving
away. Id. at 115. The deputy followed, and after seeing the suspected
accomplice park nearby, approached his vehicle-observing "a Molotov
cocktail and explosive materials, a gasoline can, and two brass padlocks
that fit the description of those removed from the PG&E;transformer
vault." Id.
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Aware that conditions of Knights's probation required him to submit to
warrantless, suspicionless searches of his person and residence at any
time, the deputy promptly executed a warrantless search of Knights's home.
In the process, he uncovered "a detonation cord, ammunition, liquid
chemicals, instruction manuals on chemistry and electrical circuitry, bolt
cutters, telephone pole-climbing spurs, drug paraphernalia, and a brass
padlock stamped 'PG&E;' " Id. Knights soon was arrested and charged,
and he ultimately sought to suppress the evidence obtained during the
deputy's search. Id. at 116.
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Characterizing Griffin as having sanctioned only purely probationary
searches undertaken with non-law enforcement motivations, Knights argued
that the search of his residence was impermissible because it had been
motivated solely by law enforcement objectives and was executed entirely
by law enforcement officials. The Court, however, cursorily rejected his
argument:
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This dubious logic-that an opinion upholding the constitutionality of
a particular search implicitly holds unconstitutional any search that is
not like it- runs contrary to Griffin's express statement that its
'special needs' holding made it 'unnecessary to consider whether'
warrantless searches of probationers were otherwise reasonable within the
meaning of the Fourth Amendment.
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Id. at 117-18 (quoting Griffin, 483 U.S. at 880). Rather than analyze
the warrantless search of Knights's apartment within the special needs
framework, the Court instead opted to "consider th[e] question [left open
by Griffin] in assessing the constitutionality of the search of Knights's
apartment." Id. at 118.
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To do so, it turned to the traditional totality of the circumstances
test-balancing the invasion of Knights's interest in privacy against the
State's interest in searching his home without a warrant supported by
probable cause. Of central importance to our decision today, the Court
explained that "Knights's status as a probationer subject to a search
condition informs both sides of that balance." Id. at 119. With regard to
Knights's interest in privacy, the Court observed:
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Inherent in the very nature of probation is that probationers do not
enjoy the absolute liberty to which every citizen is entitled. Just as
other punishments for criminal convictions curtail an offender's freedoms,
a court granting probation may impose reasonable conditions that deprive
the offender of some freedoms enjoyed by law-abiding citizens. The judge
who sentenced Knights to probation determined that it was necessary to
condition the probation on Knights's acceptance of the search provision.
It was reasonable to conclude that the search condition would further the
two primary goals of probationrehabilitation and protecting society from
future criminal violations. The probation order clearly expressed the
search condition and Knights was unambiguously informed of it. The
probation condition thus significantly diminished Knights's reasonable
expectation of privacy.
|
| [71] |
Id. at 119-20 (citations and quotations omitted).
|
| [72] |
Assessing the government's interest in applying the search condition
to Knights, the Court similarly explained:
|
| [73] |
[T]he very assumption of the institution of probation is that the
probationer is more likely than the ordinary citizen to violate the law.
The recidivism rate of probationers is significantly higher than the
general crime rate. And probationers have even more of an incentive to
conceal their criminal activities and quickly dispose of incriminating
evidence than the ordinary criminal because probationers are aware that
they may be subject to supervision and face revocation of probation, and
possible incarceration.
|
| [74] |
The State has a dual concern with a probationer. On the one hand is
the hope that he will successfully . . . be integrated back into the
community. On the other is the concern, quite justified, that he will be
more likely to engage in criminal conduct than an ordinary member of the
community. The . . . [State's] interest in apprehending violators of the
criminal law, thereby protecting potential victims of criminal enterprise,
may therefore justifiably focus on probationers in a way that it does not
on the ordinary citizen.
|
| [75] |
Id. at 120-21. As a result, the Court held, the government needs "no
more than reasonable suspicion to conduct a search of [a] probationer's
house." Id. at 121.
|
| [76] |
5.
|
| [77] |
Having thus upheld a warrantless probation search designed purely to
further law enforcement purposes, and having done so wholly outside the
confines of special needs analysis, Knights suggests something of a
departure from Edmond and Ferguson (and to a more limited extent Griffin).
After all, each of those cases had assessed warrantless searches under a
special needs rubric that demands some underlying motivation apart from
the government's general interest in law enforcement. Yet even beyond
declining to apply such analysis, Knights almost wholly ignored the
Court's previous decisions in Edmond and Ferguson.*fn22
|
| [78] |
One possible distinction between Knights, on one hand, and Edmond and
Ferguson, on the other, suggests a possible reconciliation: The search
conducted in Knights was supported by reasonable suspicion, while the
Court's most recent special needs cases have focused on suspicionless
searches and seizures, such as the DNA profiling at issue here. See, e.g.,
Lidster, 540 U.S. at __, 124 S. Ct. at 889; Ferguson, 532 U.S. at 76-77;
Edmond, 531 U.S. at 37-38. One might therefore be tempted to conclude that
the quantum of suspicion supporting the search of Knights's apartment was
what pushed the Court beyond special needs analysis. See, e.g., post at
11510-11.
|
| [79] |
We do not think so. The Court has long understood special needs
analysis to be triggered not by a complete absence of suspicion, but by a
departure from the Fourth Amendment's warrant-and-probable cause
requirements. In Griffin, after all, the search upheld by the Court under
special needs analysis was also supported by "reasonable grounds," 483
U.S. at 875-76, and Justice Scalia opened the analysis of his opinion for
the Court by observing:
|
| [80] |
Although we usually require that a search be undertaken only pursuant
to a warrant (and thus supported by probable cause, as the Constitution
says warrants must be), we have permitted exceptions when "special needs,
beyond the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable."
|
| [81] |
Id. at 873 (quoting T.L.O., 469 U.S. at 351 (Blackmun, J.,
concurring)); see also Von Raab, 489 U.S. at 666 (noting that the special
needs present in that case "justify departure from the ordinary warrant
and probable-cause requirements"); Skinner, 489 U.S. at 619 ("Except in
certain well-defined circumstances, a search or seizure in such a case is
not reasonable unless it is accomplished pursuant to a judicial warrant
issued upon probable cause. We have recognized exceptions to this rule,
however, "when special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable." When faced
with such special needs, we have not hesitated to balance the governmental
and privacy interests to assess the practicality of the warrant and
probable-cause requirements in the particular context.") (quoting Griffin,
483 U.S. at 873) (citations and additional internal quotation omitted);
T.L.O., 469 U.S. at 340-42 & n.8 (describing the special needs
justifying a departure from the warrant-and-probable cause standard in
schools and expressly declining to "decide whether individualized
suspicion is an essential element of the reasonableness standard we adopt
for searches by school authorities.").*fn23
|
| [82] |
[6] Moreover, Knights made clear the Court was not prepared to draw
the line at a reasonable suspicion threshold-at least not when it comes to
conditional releasees. To the contrary, it expressly left unresolved the
question whether special needs analysis controlled suspicionless searches
of probationers at all:
|
| [83] |
We do not decide whether the probation condition so diminished, or
completely eliminated, Knights's reasonable expectation of privacy . . .
that a search by a law enforcement officer without any individualized
suspicion would have satisfied the reasonableness requirement of the
Fourth Amendment. The terms of the probation condition permit such a
search, but we need not address the constitutionality of a suspicionless
search because the search in this case was supported by reasonable
suspicion.
|
| [84] |
Id. at 120 n.6. The only rational interpretation of Knights's express
reservation is that-without regard to the Court's prior decisions in
Edmond and Ferguson-it remains entirely an open question whether
suspicionless searches of conditional releasees pass constitutional muster
when such searches are conducted for law enforcement purposes.*fn24
|
| [85] |
B.
|
| [86] |
[7] We are not the first court called upon to address this
unresolved issue. Confronted with challenges to the federal DNA Act and
its state law analogues, our sister circuits and peers in the states
have divided in their analytical approaches -both before and after the
Supreme Court's recent special needs decisions. On one hand, the Second,
Seventh, and Tenth Circuits, along with a variety of federal district
courts and at least two state Supreme Courts, have upheld DNA collection
statutes under a special needs analysis (though not always ruling out
the possibility that the totality of the circumstances might validate
the search absent some special need). See Green v. Berge, 354 F.3d 675,
679 (7th Cir. 2004); United States v. Kimler, 335 F.3d 1132, 1146 (10th
Cir. 2003); Roe v. Marcotte, 193 F.3d 72, 79-82 (2d Cir. 1999); Vore v.
U.S. Dep't of Justice, 281 F. Supp. 2d 1129, 1133-35 (D. Ariz. 2003);
Miller v. U.S. Parole Comm'n, 259 F. Supp. 2d 1166, 1175-78 (D. Kan.
2003); United States v. Sczubelek, 255 F. Supp. 2d 315, 319-23 (D. Del.
2003); United States v. Reynard, 220 F. Supp. 2d 1142, 1165-69 (S.D.
Cal. 2002); State v. Martinez, 78 P.3d 769, 771-75 (Kan. 2003); State v.
Olivas, 856 P.2d 1076, 1085-86 (Wash. 1993); State v. Steele, 802 N.E.2d
1127, 1132-37 (Ohio Ct. App. 2003); In re D.L.C., 124 S.W.3d 354, 370-73
(Tex. App. 2003); State v. Surge, __ P.3d __, __, 2004 WL 1551561, *7
(Wash. Ct. App. July 12, 2004).
|
| [87] |
[8] By contrast, the Fourth and Fifth Circuits, a Seventh Circuit
Judge, numerous federal district courts, and a variety of state courts
have approved compulsory DNA profiling under a traditional assessment of
reasonableness gauged by the totality of the circumstances. See Green, 354
F.3d at 680-81 (Easterbrook, J., concurring); Groceman v. U.S. Dep't of
Justice, 354 F.3d 411, 413-14 (5th Cir. 2004) (per curiam); Velasquez v.
Woods, 329 F.3d 420, 421 (5th Cir. 2003) (per curiam); Jones v. Murray,
962 F.2d 302, 306-07 (4th Cir. 1992); Nicholas v. Goord, No. 01Civ.7891,
2004 WL 1432533, *2-*6 (S.D.N.Y. Jun 24, 2004); United States v. Stegman,
295 F. Supp. 2d 542, 548-50 (D. Md. 2003); Padgett v. Ferrero, 294 F.
Supp. 2d 1338, 1343-44 (N.D. Ga. 2003); United States v. Meier, No.
CR97-72HA, 2002 U.S. Dist. LEXIS 25755 (D. Or. 2002); United States v.
Lujan, No. CR98-480-02HA, 2002 U.S. Dist. LEXIS 25754 (D. Or. 2002);
Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis. 1996); Kruger v.
Erickson, 875 F. Supp. 583 (D. Minn. 1995); Vanderlinden v. Kansas, 874 F.
Supp. 1210 (D. Kan. 1995); Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C.
1994); Ryncarz v. Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993); Landry
v. Attorney General, 429 Mass. 336, 343-48 (1999); Gaines v. State, 998
P.2d 166, 171-73 (Nev. 2000); Johnson v. Commonwealth, 529 S.E.2d 769, 779
(Va. 2000); Doles v. States, 994 P.2d 315, 317-20 (Wyo. 1999); In re
Maricopa County Juvenile Actions, 930 P.2d 496, 500-01 (Ariz. Ct. App.
1996); People v. Adams, 9 Cal. Rptr. 3d 170, 180-84 (Cal. Ct. App. 2004);
L.S. v. State, 805 So. 2d 1004, 1006-07 (Fl. Dist. Ct. App. 2001); People
v. Calahan, 649 N.E.2d 588, 591-92 (Ill. App. Ct. 1995); Cooper v. Gammon,
943 S.W.2d 699, 704-05 (Mo. Ct. App. 1997); Surge, __ P.3d at __, 2004 WL
1551561, *7 (Wash. Ct. App. July 12, 2004); cf. also United States v.
Lifshitz, 363 F.3d 158, 164 & 165 (2d Cir. 2004), as amended, 369 F.3d
173, 180 & 181 (explaining that Knights "[d]ispens[ed] with [the
Court's] previous distinction between searches undertaken for probationary
and for investigative purposes, and, with that distinction, the 'special
needs' justification articulated in Griffin for reducing the level of
suspicion required for probationary searches," and concluding that
"[p]robationary searches-whether for law enforcement or probationary
purposes-are acceptable under Knights if based upon reasonable suspicion
(or potentially a lesser standard)").*fn25
|
| [88] |
[9] Finally, we observe that our own 1995 decision in Rise v. Oregon,
59 F.3d 1556 (9th Cir. 1995), upheld the constitutionality of a state DNA
collection statute by applying a pure totality of the circumstances
analysis. Our resolution of the methodological question, left open by
Knights, therefore squarely implicates the legitimacy of our own precedent
and its method.
|
| [89] |
III.
|
| [90] |
While not precluding the possibility that the federal DNA Act could
satisfy a special needs analysis, we today reaffirm the continuing
vitality of Rise-and hold that its reliance on a totality of the
circumstances analysis to uphold compulsory DNA profiling of convicted
offenders both comports with the Supreme Court's recent precedents and
resolves this appeal in concert with the requirements of the Fourth
Amendment.
|
| [91] |
A.
|
| [92] |
[10] As we have stressed, neither Edmond nor Ferguson condemns
suspicionless searches of conditional releasees in the absence of a
demonstrable "special need" apart from law enforcement. Indeed, Ferguson
explicitly distinguished itself from cases addressing the
constitutionality of parole and probation searches-thus recognizing a
constitutionally significant distinction between searches of conditional
releasees and searches of the general public, and laying the framework for
a jurisprudentially sound analytic division between these two classes of
suspicionless searches. See Ferguson, 532 U.S. at 79 n.15 ("[W]e agree
with petitioners that Griffin is properly read as limited by the fact that
probationers have a lesser expectation of privacy than the public at
large.") (citing Griffin, 483 U.S. at 874-75).*fn26 And Knights, of course, affirmed the post-Edmond,
post-Ferguson possibility that conditional releasees' diminished
expectations of privacy may be sufficient to justify the judicial
assessment of a parole or probation search's reasonableness outside the
strictures of special needs analysis. Knights, 524 U.S. 117-18, 119-20
& n.6.*fn27
|
| [93] |
[11] Of course, the mere possibility that suspicionless searches of
conditional releasees may be sustainable under a pure totality of the
circumstances analysis is insufficient to establish that such searches
actually are sustainable under such analysis. We begin our resolution of
the issue by taking note of the well-established principle that parolees
and other conditional releasees are not entitled to the full panoply of
rights and protections possessed by the general public. Quite to the
contrary, the Court has recognized that "those who have suffered a lawful
conviction" are properly subject to a "broad range of [restrictions] that
might infringe constitutional rights in free society," McKune v. Lile, 536
U.S. 24, 36 (2002),*fn28 in no small part due to the extraordinary rate of
recidivism among offenders. See, e.g., Pa. Bd. of Prob. & Parole v.
Scott, 524 U.S. 357, 365 (1998); Knights, 534 U.S. at 120; Griffin, 483
U.S. at 875; Crawford, 372 F.3d at 1069-71 (Trott, J., concurring); see
also Ewing v. California, 538 U.S. 11, 25-27 (2003); Parke v. Raley, 506
U.S. 20, 27 (1992) ("States have a valid interest in deterring and
segregating habitual criminals."). Thus, conditional releasees may claim
"only . . . conditional liberty properly dependent on observance of
special parole restrictions" that extend "substantially beyond the
ordinary restrictions imposed by law on an individual citizen." Morrissey,
408 U.S. at 478 & 480 (1972); Scott, 524 U.S. at 365 ("[T]he State
accords a limited degree of freedom in return for the parolee's assurance
that he will comply with the often strict terms and conditions of his
release. In most cases, the State is willing to extend parole only because
it is able to condition it upon compliance with certain
requirements.").
|
| [94] |
These restrictions generally "are meant to assure that the
[conditional release term] serves as a period of genuine rehabilitation
and that the community is not harmed by the [releasee]'s being at large.
These same goals require and justify the exercise of supervision to assure
that the restrictions are in fact observed." Griffin, 483 U.S. at 875
(internal citations omitted). And whether they are initially legitimated
as furthering a "special need," id. at 873-74, or recognized merely as
serving the government's " 'overwhelming interest' in ensuring that a
[releasee] complies with those requirements and is returned to prison if
he fails to do so," Scott, 524 U.S. at 365 (quoting Morrissey, 408 U.S. at
477), once such strictures are imposed and clearly noticed, they
dramatically alter the relationship between the releasee and the
government. For at bottom, they render all kinds of individual choices-
choices that otherwise would be privately considered, privately
determined, and privately undertaken-matters of legitimate government
concern and investigation. As we recognized nearly thirty years
ago:
|
| [95] |
The purposes of the parole system give the parole authorities a
special and unique interest in invading the privacy of parolees under
their supervision. In order to fulfill his dual responsibilities for
helping the parolee to reintegrate into society and evaluating his
progress, and for preventing possible further antisocial or criminal
conduct by the parolee, it is essential that the parole officer have a
thorough understanding of the parolee and his environment, including his
personal habits, his relationships with other persons, and what he is
doing, both at home and outside it. It is equally important that this
information be kept up to date. . . . Many of the[ accompanying]
restrictions relate to matters which the [releasee] might otherwise be
entitled to preserve as private.
|
| [96] |
Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir. 1975) (en banc)
(plurality opinion).
|
| [97] |
These transformative changes wrought by a lawful conviction and
accompanying term of conditional release are well-recognized by the
Supreme Court, which often has noted that conditional releasees enjoy
severely constricted expectations of privacy relative to the general
citizenry-and that the government has a far more substantial interest in
invading their privacy than it does in interfering with the liberty of
law-abiding citizens. See, e.g., Knights, 534 U.S. at 119-20; Ferguson,
532 U.S. at 79 n.15; Griffin, 483 U.S. at 874-75; see also Crawford, 372
F.3d at 1071 (Trott, J., concurring) ("Parolees . . . are a discrete group
that are a demonstrable menace to the safety of the communities into which
they are discharged. Parolees have demonstrated by their adjudicated
criminal conduct a capacity and willingness to commit crimes serious
enough to deprive them of liberty. They have not yet finished serving
their sentences in connection with which they do not enjoy a presumption
of innocence. Moreover, their collective behavior while on parole
demonstrates the truth of the axiom that past behavior is the best
predictor of future behavior.").
|
| [98] |
[12] We believe that such a severe and fundamental disruption in the
relationship between the offender and society, along with the government's
concomitantly greater interest in closely monitoring and supervising
conditional releasees, is in turn sufficient to sustain suspicionless
searches of his person and property even in the absence of some non-law
enforcement "special need"-at least where such searches meet the Fourth
Amendment touchstone of reasonableness as gauged by the totality of the
circumstances.
|
| [99] |
Let us be clear: Our holding in no way intimates that conditional
releasees' diminished expectations of privacy serve to extinguish their
ability to invoke the protections of the Fourth Amendment's guarantee
against unreasonable searches and seizures. Where a given search or class
of searches cannot satisfy the traditional totality of the circumstances
test, a conditional releasee may lay claim to constitutional relief-just
like any other citizen. Further, and without regard to the outcome of any
such analysis, we reiterate Judge Trott's recent observation that
conditional releasees likewise "retain[ ] a right of privacy against
government searches and seizures that are arbitrary, a right of privacy
against searches and seizures that are capricious, and a right of privacy
against searches and seizures that are harassing." Crawford, 372 F.3d at
1072 (Trott, J., concurring); cf. Skinner, 489 U.S. at 621-22 (noting that
"[a]n essential purpose of a warrant requirement is to protect privacy
interests by assuring citizens subject to a search or seizure that such
intrusions are not the random or arbitrary acts of government agents," and
explaining that no warrant was required in the case at bar in part due to
"the standardized nature of the tests and the minimal discretion vested in
those charged with administering the[m]").*fn29 These safeguards amply shelter the conditional
releasee's residual expectation of, and entitlement to,
privacy.
|
| [100] |
We also wish to emphasize the limited nature of our holding. With its
alarmist tone and obligatory reference to George Orwell's 1984, Judge
Reinhardt's dissent repeatedly asserts that our decision renders every
person in America subject to DNA sampling for CODIS purposes, including
"attendees of public high schools or universities, persons seeking to
obtain drivers' licenses, applicants for federal employment, or persons
requiring any form of federal identification, and those who desire to
travel by airplane," post at 11480-81, "political opponents," "disfavored
minorities," post at 11487,*fn30 "all newborns," post at 11489, "passengers of
vehicles," "arrestees," post at 11515-no, really, "the entire population."
Post at 11489. Nothing could be further from the truth-and we respectfully
suggest that our dissenting colleague ought to recognize the obvious and
significant distinction between the DNA profiling of law-abiding citizens
who are passing through some transient status (e.g., newborns, students,
passengers in a car or on a plane) and lawfully adjudicated criminals
whose proven conduct substantially heightens the government's interest in
monitoring them and quite properly carries lasting consequences that
simply do not attach from the simple fact of having been born, or going to
public school, or riding in a car. See also Green, 354 F.3d at 679-81
(Easter-brook, J., concurring).*fn31
|
| [101] |
B.
|
| [102] |
[13] With this framework in mind, we can now appraise the
reasonableness of the federal DNA Act's compulsory DNA profiling of
qualified federal offenders. In evaluating the totality of the
circumstances, we must balance the degree to which DNA profiling
interferes with the privacy interests of qualified federal offenders
against the significance of the public interests served by such profiling.
See Brown v. Texas, 443 U.S. 47, 50-51 (1979).
|
| [103] |
1.
|
| [104] |
[14] As we have recognized, supra at 11439 n.15, compulsory blood
tests implicate the individual's interest in bodily integrity-"a cherished
value of our society." Schmerber v. California, 384 U.S. 757, 772 (1966).
Nonetheless, it is firmly established that "the intrusion occasioned by a
blood test is not significant, since such 'tests are a commonplace in
these days of periodic physical examinations and experience with them
teaches that the quantity of blood extracted is minimal, and that for most
people the procedure involves virtually no risk, trauma, or pain.' "
Skinner, 489 U.S. at 625 (quoting Schmerber, 384 U.S. at 771); see also
Winston, 470 U.S. at 762 (observing "society's judgment that blood tests
do not constitute an unduly extensive imposition on an individual's
personal privacy and bodily integrity"); Yin v. California, 95 F.3d 864,
870 (9th Cir. 1996) (Reinhardt, J.) ("In today's world, a medical
examination that does not include either a blood test or urinalysis would
be unusual."). Indeed, the Supreme Court observed nearly 50 years ago that
"[t]he blood test procedure has become routine in our everyday life. It is
a ritual for those going into the military service as well as those
applying for marriage licenses. Many colleges require such tests before
permitting entrance and literally millions of us have voluntarily gone
through the same . . . routine in becoming blood donors." Breithaupt v.
Abram, 352 U.S. 432, 436 (1957). For parolees and supervised releasees
especially -individuals who while in custody have been lawfully subject to
much more severe intrusions of their corporeal privacy than a sterile
blood draw conducted by a trained medical professional, and who therefore
leave prison with substantially reduced sensitivities to such exposure-the
DNA Act's compelled breach of their bodily integrity is all the less
offensive. See Bell v. Wolfish, 441 U.S. 520, 558-60 & n. 39 (1979)
(upholding suspicionless body cavity searches of inmates during which male
inmates "must lift [their] genitals and bend over to spread [their]
buttocks for visual inspection [and wherein t]he vaginal and anal cavities
of female inmates also are visually inspected").
|
| [105] |
[15] At the same time, the DNA profile derived from the defendant's
blood sample establishes only a record of the defendant's
identity-otherwise personal information in which the qualified offender
can claim no right of privacy once lawfully convicted of a qualifying
offense (indeed, once lawfully arrested and booked into state custody).
For, as we recognized in Rise, "[o]nce a person is convicted of one of the
felonies included as predicate offenses under [the DNA Act], his identity
has become a matter of state interest and he has lost any legitimate
expectation of privacy in the identifying information derived from blood
sampling." 59 F.3d at 1560; see also Groceman, 354 F.3d at 413-14; Jones,
962 F.2d at 306-07.*fn32
|
| [106] |
Both Kincade and his supporting amici passionately protest that
because the government does not destroy blood samples drawn for DNA
profiling and because such samples therefore conceivably could be mined
for more private information or otherwise misused in the future, any
presently legitimate generation of DNA profiles is irretrievably tainted
by the prospect of far more consequential future invasions of personal
privacy.*fn33 Judge Reinhardt's dissent likewise maintains that in
light of the "nightmarish" possibilities CODIS portends, post at 11493, we
must act immediately to halt the program- before the wolf enters the fold,
rather than after. Post at 11481.
|
| [107] |
[16] The concerns raised by amici and by Judge Reinhardt in his
dissent are indeed weighty ones, and we do not dismiss them lightly. But
beyond the fact that the DNA Act itself provides protections against such
misuse,*fn34 our job is limited to resolving the
constitutionality of the program before us, as it is designed and as it
has been implemented.*fn35 In our system of government, courts base decisions
not on dramatic Hollywood fantasies, cf. post at 11493, but on concretely
particularized facts developed in the cauldron of the adversary process
and reduced to an assessable record. If, as Kincade's aligned amici and
Judge Reinhardt's dissent insist, and when, some future program permits
the parade of horribles the DNA Act's opponents fear-unregulated
disclosure of CODIS profiles to private parties, genetic discrimination,
state-sponsored eugenics, and (whatever it means) the use of CODIS somehow
"quite literally, to eliminate political opposition," post at 11487-we
have every confidence that courts will respond appropriately. As currently
structured and implemented, however, the DNA Act's compulsory profiling of
qualified federal offenders can only be described as minimally
invasive-both in terms of the bodily intrusion it occasions, and the
information it lawfully produces.*fn36
|
| [108] |
2.
|
| [109] |
[17] In contrast, the interests furthered by the federal DNA Act are
undeniably compelling. By establishing a means of identification that can
be used to link conditional releasees to crimes committed while they are
at large, compulsory DNA profiling serves society's " 'overwhelming
interest' in ensuring that a parolee complies with th[ ]e requirements [of
his release] and is returned to prison if he fails to do so." Scott, 524
U.S. at 365 (quoting Morrissey, 408 U.S. at 483). The deterrent effect of
such profiling,*fn37 see, e.g., Roe, 193 F.3d at 79; Rise, 59 F.3d at
1561 & n.4; Jones, 962 F.2d at 311, similarly fosters society's
enormous interest in reducing recidivism. As Judge Trott highlighted in
his Crawford concurrence, rates of re-arrest among parolees and
probationers are astounding, 372 F.3d at 1069-70 (Trott, J., concurring);
the Supreme Court, too, has frequently stressed the pressing need to
reduce recidivism among the offender population. See, e.g., Ewing, 538
U.S. at 25-27; Smith v. Doe, 538 U.S. 84, 103 (2003); McKune, 536 U.S. at
32-33; Knights, 534 U.S. at 120; Griffin, 483 U.S. at 875, 876, 878, 880.
Finally, by contributing to the solution of past crimes, DNA profiling of
qualified federal offenders helps bring closure to countless victims of
crime who long have languished in the knowledge that perpetrators remain
at large. Together, the weight of these interests is monumental.*fn38
|
| [110] |
These interests also are intimately related to the core purposes of
conditional release: rehabilitating convicted offenders and sheltering
society from future victimization. See Knights, 534 U.S. at 119; Scott,
524 U.S. at 365; Griffin, 483 U.S. at 875 & 880; see also United
States v. Jackson, 189 F.3d 820, 824 (9th Cir. 1999). As a deterrent, DNA
profiling can help to steer conditional releasees toward law-abiding lives
as productive members of our society, fostering the rehabilitative goal of
our systems of conditional release. Such profiling likewise helps protect
the society into which offenders are conditionally released by reducing
crime attributable to the operation of limited release programs like
probation and parole. Rise, 59 F.3d at 1561. And by laying a foundation
for solving those crimes that are not successfully deterred by the
collection of DNA profiles, the DNA Act both provides a means to monitor
such individuals' compliance with the terms of their release-see supra at
11432-33 n.3-and helps minimize the pain and suffering recidivist
offenders sow in our communities.
|
| [111] |
3.
|
| [112] |
[18] In light of conditional releasees' substantially diminished
expectations of privacy, the minimal intrusion occasioned by blood
sampling, and the overwhelming societal interests so clearly furthered by
the collection of DNA information from convicted offenders, we must
conclude that compulsory DNA profiling of qualified federal offenders is
reasonable under the totality of the circumstances.*fn39 There-fore, we today realign ourselves with every
other state and federal appellate court to have considered these issues-
squarely holding that the DNA Act satisfies the requirements of the Fourth
Amendment.
|
| [113] |
IV.
|
| [114] |
[19] Because compulsory DNA profiling conducted pursuant to the
federal DNA Act would have occasioned no violation of Kincade's Fourth
Amendment rights, the judgment and accompanying sentence of the district
court are
|
| [115] |
AFFIRMED.
|
| [116] |
GOULD, Circuit Judge, concurring:
|
| [117] |
I agree with the majority that Thomas Kincade's conviction should be
affirmed. I write separately because I believe that we should affirm under
a "special needs" theory rather than the totality of the circumstances
theory. I further pose a caveat on the limits of what we can properly
decide today.
|
| [118] |
I.
|
| [119] |
The majority affirms based on extension of United States v. Knights,
534 U.S. 112 (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 (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
(2001) harmonized Griffin in the context of a suspicionless search. Thus
the Supreme Court has shown that the special needs doctrine permits the
search in this case.*fn40
|
| [120] |
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.*fn41 That such deterrence is a special need permitting
suspicionless searches of parolees has been cogently advanced by Judge
Trott in his concurring opinion in United States v. Crawford, 372 F.3d
1048, 1066-1077 (9th Cir. 2004) (Trott, J., concurring). As applied in the
context of DNA extraction, this theory of special need has been adopted by
three of our sister circuits. See Green v. Berge, 354 F.3d 675, 679 (7th
Cir. 2004); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir. 2003);
Roe v. Marcotte, 193 F.3d 72, 79-82 (2d Cir. 1999); see also Opinion of
Judge O'Scannlain at 11455-56 (listing other courts that have reached this
conclusion).
|
| [121] |
Finding these authorities most persuasive, I reach the same conclusion
as the majority, and I concur in the judgment.
|
| [122] |
II.
|
| [123] |
I also write to emphasize what we do not decide today. Thomas Kincade
is now on supervised release, and was in that status when his DNA was
demanded. While he is on supervised release, there is a special need to
have his DNA extracted and stored in the CODIS database. This serves the
penalogical purpose of deterring him from committing a new crime while on
supervised release, and of course it will also aid in catching him if he
does so notwithstanding. What we do not have before us is a petitioner who
has fully paid his or her debt to society, who has completely served his
or her term, and who has left the penal system. In that case, the special
need that I identify to maintain the DNA is gone, but the record of the
felon's DNA in the CODIS database is not. Once those previously on
supervised release have wholly cleared their debt to society, the question
may be raised, "Should the CODIS entry be erased?" Although it might seem
counter-intuitive to law enforcement that a record once gleaned might be
lost, there is a substantial privacy interest at stake.*fn42 In a proper case where this issue is presented, we
would presumably need to weigh society's benefit from retention of the DNA
records of a felon against that person's right, in a classical sense, to
privacy. See generally Samuel Warren & Louis Brandeis, The Right to
Privacy, 4 Harv. L. Rev. 193 (1890). In our age in which databases can be
"mined" in a millisecond using super-fast computers, in which extensive
information can, or potentially could, be gleaned from DNA (even the
"junk" DNA currently used), and in which this data can easily be stored
and shared by governments and private parties worldwide, the threat of a
loss of privacy is real, even if we cannot yet discern the full scope of
the problem. A related concern was voiced more than two decades ago, long
before the advent of DNA profiling. See generally Arthur R. Miller, The
Assault on Privacy 24-54 (1971). With monumental increases in
technologies, Professor Miller's alarm about technology's assault on
privacy must be seriously pondered. A nice question, if and when properly
presented, would be whether DNA samples, though lawfully obtained from a
felon on supervised release, may properly be retained by the government
after the felon has finished his or her term and has paid his or her debt
to society.*fn43 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.
|
| [124] |
REINHARDT, Circuit Judge, with whom PREGERSON, KOZINSKI, and WARDLAW,
Circuit Judges, join, dissenting:
|
| [125] |
"They that can give up essential liberty to obtain a little safety
deserve neither liberty nor safety." BENJAMIN FRANKLIN, HISTORICAL Review
of PENNSYLVANIA (1759).
|
| [126] |
Today this court approves the latest installment in the federal
government's effort to construct a comprehensive national database into
which basic information concerning American citizens will be entered and
stored for the rest of their lives - although no majority exists with
respect to the legal justification for this conclusion.*fn44 My colleagues claim to authorize merely the
"compulsory DNA profiling of certain conditionally-released federal
offenders," as authorized by the DNA Analysis Backlog Elimination Act of
2000 ("DNA Act"), Pub. L. No. 106-546, 114 Stat. 2726 (2000). We would be
lucky indeed if it were possible to so limit the effect of their opinions.
For, under the rationales they espouse, especially the plurality's, all
Americans will be at risk, sooner rather than later, of having our DNA
samples permanently placed on file in federal cyberspace, and perhaps even
worse, of being subjected to various other governmental programs providing
for suspicionless searches conducted for law enforcement
purposes.
|
| [127] |
Neither Supreme Court precedent nor any established rule of Fourth
Amendment law supports today's plurality or concurring opinion. Never has
the Court approved of a search like the one we confront today: a
programmatic search designed to produce and maintain evidence relating to
ordinary criminal wrongdoing, yet conducted without any level of
individualized suspicion. Never has the Court approved of the government's
construction of a permanent governmental database built from general
suspicionless searches and designed for use in the investigation and
prosecution of criminal offenses.
|
| [128] |
The approval of such a program carries with it all of the dangers
inherent in allowing the government to collect and store information about
its citizens in a centralized place. J. Edgar Hoover terrorized leaders of
the civil rights movement by exploiting the information he collected in
his files. Our government's surveillance and shameful harassment of
suspected communists and alleged communist-sympathizers in the middle of
the twentieth century depended largely on the centralization of
information collected about countless numbers of non-communist members of
our citizenry - often by means that violated the Fourth Amendment. The
same was true of the Palmer Raids a few decades earlier and of our roundup
of Japanese Americans and their placement in internment camps during World
War Two. See generally Daniel J. Solove, Digital Dossiers and the
Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083
(2002).
|
| [129] |
Even governments with benign intentions have proven unable to regulate
or use wisely vast stores of information they collect regarding their
citizens. The problem with allowing the government to collect and maintain
private information about the intimate details of our lives is that the
bureaucracy most often in charge of the information "is poorly regulated
and susceptible to abuse. This [ ] has profound social effects because it
alters the balance of power between the government and the people,
exposing individuals to a series of harms, increasing their vulnerability
and decreasing the degree of power that they exercise over their lives."
Id. at 1105. To allow such information to be collected through the
compulsory extraction of blood from the bodies of non-consenting Americans
runs contrary to the values on which this country was founded. My
colleagues who endorse the judgment do so despite the fact that the search
regime they approve, and the manner in which they approve it, encourages
the very centralization of government authority that has repeatedly
resulted in the sacrifice of our liberties in the name of law enforcement.
Proper attention to constitutional doctrine and history would have led to
a contrary result.
|
| [130] |
To justify the suspicionless searches authorized by the DNA Act, the
plurality sweeps away the traditional Fourth Amendment requirement that
law enforcement officials conduct searches only when predicated on some
level of suspicion that the individual being searched has committed a
crime. In place of this time-honored principle, the plurality has employed
an opaque "totality of the circumstances" test. See ante at 11457. It
should come as no shock that under this malleable standard, my colleagues
have concluded that the forcible extraction of blood samples from
probationers and parolees, and the permanent maintenance of profiles
constructed from those samples in a federal databank, is constitutionally
reasonable. The "totality" of the circumstances relied upon by the
plurality is as follows: Those who commit crimes have reduced expectations
of privacy, ante at 11462-63, and, because the forcible extraction of
blood is a constitutionally insignificant invasion of privacy, ante at
11465-66, and the weight of the government interest in DNA profiling "is
monumental," ante at 11469, suspicionless searches are constitutionally
reasonable.
|
| [131] |
Under the test the plurality employs, any person who experiences a
reduction in his expectation of privacy would be susceptible to having his
blood sample extracted and included in CODIS - attendees of public high
schools or universities, persons seeking to obtain drivers' licenses,
applicants for federal employment, or persons requiring any form of
federal identification, and those who desire to travel by airplane, to
name just a few. Already, all members of the Armed Forces must submit to
the involuntary extraction of blood for the purpose of providing DNA
samples. Indeed, given the "monu-mental" government interest and the
"insignificant" invasion of privacy described by the plurality, it is
difficult to imagine that the balancing of interests it then performs
would not justify the government's including data regarding all Americans
in the system regardless of the level of the expectation of privacy they
might possess. This is not what the Framers of our Constitution
intended.
|
| [132] |
The sixth vote for the judgment is based on a narrower and far
different legal theory - the more respectable "special needs" doctrine.
Unfortunately, my respected colleague who opts for the special needs
standard obliterates the distinction between law enforcement and non-law
enforcement purposes and in so doing undermines the protections the Fourth
Amendment is designed to afford, almost to the same extent as those in the
plurality.
|
| [133] |
Thomas Jefferson once warned that "[t]he time to guard against
corruption and tyranny is before they shall have gotten hold of us. It is
better to keep the wolf out of the fold, than to trust to drawing his
teeth and talons after he shall have entered." THOMAS JEFFERSON, NOTES ON
THE STATE OF VIRGINIA 121 (William Peden ed., 1955). The plurality has
failed to heed this warning, and instead opens the door to multifarious
law enforcement programs involving suspicionless searches by employing a
legal standard that imposes no significant limits on arbitrary and
invasive government actions; in effect, the plurality simply asks us to
trust those in power. The rationale employed in the concurring opinion,
while more obedient to traditional legal concepts, would in the end likely
result in a similar elimination of constitutional restraints on the
excessive exercise of governmental power. Because I cannot join in my
colleagues' willingness to accept so dangerous and drastic a limitation on
our individual liberties, I respectfully dissent.
|
| [134] |
I. The Scope of the DNA Act and the Combined DNA Index
System
|
| [135] |
The federal program which for all practical purposes is approved today
is not nearly as limited as the one initially enacted by Congress. The
federal DNA database at issue in this litigation, the Combined DNA Index
System ("CODIS"),*fn45 contains more information about vastly more
individuals than it did when it was first created. A brief examination of
the origins and development of CODIS helps demonstrate why further
limitless expansion of the scope and reach of this nationwide database is
inevitable, and helps explain why I find it so unlikely that today's
decision is good for "this day and train only." Smith v. Allwright, 321
U.S. 649, 669 (1944) (Roberts, J., dissenting).
|
| [136] |
A. The Expansion of CODIS
|
| [137] |
Even a brief glance at the manner in which the federal government has
developed and expanded CODIS makes plain that the scope of the system is
broad and that future growth is inevitable. CODIS began in 1990 as a pilot
program serving just 14 state and local laboratories. See CODIS Mission
Statement and Background. Its enlargement began shortly thereafter and has
not stopped since. Congress made CODIS a program with nationwide reach in
the 1994 Violent Crime Control and Law Enforcement Act, which authorized
the FBI to create a national database of DNA samples collected from crime
scenes and crime victims, convicted offenders, and unidentified human
remains. See DNA Analysis Backlog Elimination Act of 2000, H.R. Rep. No.
106-900 (I), at 8 [hereinafter DNA Act House Report]. It was not until
passage of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"),
Pub. L. 104-132, 110 Stat. 1214 (1996), however, that Congress authorized
the FBI to "expand CODIS to include federal crimes." DNA Act House Report,
at 8. Despite this legislation, the Department of Justice concluded that
Congress had not yet provided the executive branch with sufficient legal
authority to collect DNA samples from federal offenders. Consequently,
Congress enacted the DNA Act of 2000, which states that "the probation
office responsible for the supervision under Federal law of an individual
on probation, parole, or supervised release shall collect a DNA sample
from each individual who is, or has been, convicted of a qualifying
Federal offense." 42 U.S.C. § 14135a(a)(2).
|
| [138] |
The DNA Act requires samples*fn46 from all individuals who have been convicted of
"certain federal crimes." See ante, at 11431 & n.1. And, as the
plurality rightly notes, the DNA Act of 2000 contained a narrow list of
qualifying offenses, including crimes such as arson, voluntary
manslaughter, and murder. What the plurality and concurring opinion fail
to mention, however, is that the most recent list of qualifying offenses,
contained at 28 C.F.R. § 28.2, includes a laundry list of federal crimes
that is vastly more expansive than the list approved by the 2000 DNA
Act.*fn47
|
| [139] |
The current list of qualifying crimes is so broad and eclectic that it
is difficult to name, absent an intimate familiarity with the intricacies
of the federal criminal code, any discernible categories of criminal
activities that remain beyond the reach of the DNA Act. The list of
qualifying offenses includes crimes compiled from more than 200 separate
sections of the United States Code, resulting in countless possible
permutations of qualifying crimes. For example, one's DNA could be stored
on file with the federal government forever upon a conviction for
"willfully injure[ing] or commit[ting] any depredation against any
property of the United States," such as spray painting graffiti on a
government building or tearing apart a $1 bill in protest against a
perceived arbitrary governmental policy. See 18 U.S.C. § 1361. Similarly,
an individual might have a DNA sample forcibly taken if he interferes with
a mailman in the course of his duties, or forcibly opposes a federal
employee on account of his performance of official duties. See 18 U.S.C. §
111(a)(1) (making it illegal for any person to, inter alia, oppose or
interfere with any officer or employee of the United States "while engaged
in or on account of the performance of official duties"); see also 18
U.S.C. § 2116 (criminalizing the interference with any postal clerk in the
discharge of his duties in connection with a postal car or steamboat). If
an owner of a boat destroys his vessel in order to obtain an insurance
payment, he may be forced to provide a DNA sample, see 18 U.S.C. § 2272,
and any non-owner of a boat who "maliciously cuts, spoils, or destroys any
cordage, cable, buoys, buoy rope, head fast, or other fast, fixed to the
anchor or moorings belonging to any vessel" will suffer a similar fate, 18
U.S.C. § 2276; cf. 18 U.S.C. § 2281 (criminalizing violence against
maritime fixed platforms).
|
| [140] |
If the above examples do not sufficiently demonstrate that the federal
government has not simply chosen to collect DNA samples from the most
hardened criminals or most likely recidivists, consider the following
non-exhaustive sample of enumerated crimes listed at 28 C.F.R. § 28.2:
resisting arrest, 18 U.S.C. § 2231; various forms of "civil disorder," 18
U.S.C. § 231; participation, promotion, or incitement of a riot, 18 U.S.C.
§ 2101; advocating the overthrow of the United States government, 18
U.S.C. § 2385; interference with access to reproductive health service
facilities, 18 U.S.C. § 248; interference with an aviation flight crew
member or flight attendant, 49 U.S.C. § 46504; interference with or
intimidation of federal meat, poultry, or poultry products inspectors, 21
U.S.C. § 461(c), 675; the harming of any animal used by law enforcement
officials, 18 U.S.C. § 1368; the receipt of kick-backs from public works
employees, 18 U.S.C. § 874; personal theft and robbery, 18 U.S.C. §§
2111-12; conspiracies "to threaten, or intimidate any person," 18 U.S.C. §
241; interference with the right to vote, 18 U.S.C. § 594; attempts to
intimidate or command any employee of the federal government to engage or
not engage in political activity, 18 U.S.C. § 610; various forms of
extortion and "mailing threatening communications," and "making
extortionate extensions of credit" or collecting extensions of credit by
"extortionate means," 18 U.S.C. §§ 875-78, 892, 894; being a felon - or a
member of the Armed Forces who has been dishonorably discharged - in
possession of a firearm, 18 U.S.C. § 922(g); computer fraud, 18 U.S.C. §
1030; attempted manslaughter, 18 U.S.C. § 1113; incest committed by an
Indian in Indian country, 18 U.S.C. § 1153; the use of a hazardous or
injurious device on federal land or an Indian reservation, 18 U.S.C. §
1864; tampering with a witness, 18 U.S.C. § 1512; piracy under the law of
nations, 18 U.S.C. § 1651; the obstruction or delay of the movement of any
article or commodity in commerce, 18 U.S.C. § 1951; various racketeering
crimes, 18 U.S.C. §§ 1952(a)(2), 1958-59, 1962; breaking and entering into
a post office, 18 U.S.C. § 2115; cruelty to seamen on a vessel in the
jurisdiction of the United States, 18 U.S.C. § 2191; "Shanghaiing sailors"
by force or threat, 18 U.S.C. § 2194; misuse of a vessel by a person in
command of the vessel within the territorial waters of the United States,
18 U.S.C. § 2274; tampering with, or breaking and entering into, another
person's vessel, 18 U.S.C. §§ 2275-76; destruction or removal of property
to prevent seizure, 18 U.S.C. § 2232(a); any action designed to impair a
federal court's continuing in rem jurisdiction over a particular property,
18 U.S.C. § 2232(b); production of sexually explicit depictions of minors,
18 U.S.C. § 2260; the transfer of any obscene material to a minor, 18
U.S.C. § 1470; interstate stalking or violation of a protective order, 18
U.S.C. §§ 2261A, 2262; persuading or enticing any individual to travel
across state lines to engage in prostitution, 18 U.S.C. § 2422;
importation of any alien to the United States for any immoral purpose, 8
U.S.C. § 1328; and the removal or alteration of the serial number on a
firearm, or the receipt of a firearm with a removed or altered serial
number, 26 U.S.C. § 5861. The Act even applies to several sections of the
federal criminal code that have long been repealed. See, e.g., 18 U.S.C.
§§ 2031, 2032. And, in case the provided list is insufficient, the DNA Act
is also triggered by the catchall "attempt or conspiracy" provision, which
covers "[a]ny offense that is an attempt or conspiracy to commit any of
the foregoing offenses." 28 C.F.R. § 28.2(I).
|
| [141] |
The power to assemble a permanent national DNA database of all
offenders who have committed any of the crimes listed above has
catastrophic potential. If placed in the hands of an administration that
chooses to "exalt order at the cost of liberty," Whitney v. California,
274 U.S. 357, 374 (1927) (Brandeis, J., dissenting), the database could be
used to repress dissent or, quite literally, to eliminate political
opposition. Many of the qualifying offenses in the DNA Act are crimes that
involve conduct closely related to the exercise of First Amendment rights
to free speech and assembly, such as incitement, civil disorder, and the
various forms of "interference" crimes listed above. Other offenses are so
vaguely or broadly described that they cover almost any conduct that can
be described as unlawful. Even if the list of qualifying offenses in the
DNA Act remains static, future governments might use the Act's already
wide reach to monitor, intimidate, and incarcerate political opponents and
disfavored minorities.
|
| [142] |
Giving us a concrete sense of how broad the reach of the current Act
is, the plurality opinion notes that CODIS currently contains over 1.6
million DNA profiles drawn from offenders. But that population is certain
to rise even without statutory assistance. With nearly 6.9 million
individuals under some form of correctional supervision in recent years,
see Lauren E. Glaze & Seri Palla, U.S. Dep't of Justice, Bureau of
Justice Statistics, Probation and Parole in the United States, 2003,
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ ppus03.p df, CODIS has
the immediate potential for exponential growth. It is no secret,
incidentally, that minorities are disproportionately represented in this
population and that many whites receive no sentence at all when they
commit offenses for which blacks or Hispanics receive prison time or
probation. See generally MARC MAUER, RACE TO INCARCERATE
(1999).
|
| [143] |
CODIS' potential for expansion, however, is not limited to the
population of convicted federal offenders. Even before passage of the 2000
DNA Act, all fifty states had adopted some form of legislation mandating
the collection of DNA samples for inclusion in CODIS. See Nancy Beatty
Gregoire, Federal Probation Joins the World of DNA Collection, 66 FED.
PROBATION 30, 30 (2002). Today, Mississippi is the only state that does
not provide its DNA profiles for inclusion in the national database, NDIS,
via CODIS. See Federal Bureau of Investigation, NDIS Participants,
available at http://www.fbi.gov/hq/lab/codis/partstates.htm (last visited
June 20, 2004). The FBI has noted approvingly that the states are "rapidly
expanding the scope and size of their CODIS databases" and has stated its
hope that "eventually, all 50 states will include all felony offenses" in
their lists of qualifying crimes. Federal Bureau of Investigation, The
FBI's Combined DNA Index System Program: A Federal/State Partnership
Fighting Violent Crime, available at http://www.fbi.gov/hq/lab/codis/
brochure.pdf (last visited June 20, 2004).
|
| [144] |
Recent legislation in several states has authorized the federal
government to store and access DNA profiles of individuals who have been
convicted of run-of-the-mill non-violent crimes such as felonious
possession of food stamps, see Br. of Amicus Curiae Public Defender
Service for the District of Columbia [hereinafter: PDS Brief], at 6
(citing Ala. Code §§ 36-18-24, 13A-9-91 (2003)). CODIS also contains
profiles of individuals who have been convicted of no crime whatsoever but
have merely had the misfortune of being arrested in Louisiana, Texas, or
Virginia. See id. at 7 (citing LA. REV. STAT. ANN. § 15:609(A) (West Supp.
2003); TEX. GOV'T CODE ANN. § 411.1471(a)(2) (West 2003); Va. St. §
19.2-310.2:1 (2003)). California will likely be next in this group - a
popular and well-funded ballot initiative is on the November ballot that
would expand the State's collection of DNA samples to include arrestees.
See John Wildermuth, Proposition to Take DNA at Arrest Stirs Privacy
Fears, S.F. CHRON., June 12, 2004, at A1. California's propositions
frequently are emulated by other less imaginative jurisdictions.*fn48 If the expansion of the DNA Act's reach continues to
follow its current trajectory, it will not be long before CODIS includes
DNA profiles from misdemeanants, arrestees, and other suspected criminals
throughout the nation. See Mark Hansen, DNA Dragnet, ABA JOURNAL, May
2004, at 43 (noting that Congress is soon likely to approve legislation
authorizing DNA profiling of juvenile offenders and adult arrestees). And,
once that step is made, there will undoubtedly be pressure to expand the
database even further to include profiles of individuals who wish to
obtain drivers licenses*fn49 or federal passports, applicants for federal jobs or
admission to public universities, children who attend public elementary or
secondary schools, all newborns, and ultimately, under the rationale
adopted by the plurality, the entire population.*fn50 The increasing use of DNA "dragnets," in which
police officers encourage all individuals in a particular community to
provide DNA samples to local law enforcement officials in order to assist
an ongoing criminal investigation despite the absence of any
individualized suspicion, serves as a concrete example of the type of
practices which may shortly become commonplace unless the gradual erosion
of Fourth Amendment protections now set in place is reversed. See id. at
42-43 (noting that DNA dragnets have become increasingly common since the
early 1990s and questioning the efficacy of these suspicionless searches).
Unfortunately, given the plurality's ill-considered holding that the
government interest is "monumental" and the infringement on privacy rights
is minimal, that erosion is simply the beginning, not the
end.
|
| [145] |
B. Junk DNA and the Potential for Expansion
|
| [146] |
CODIS's potential to expand is not confined to its likely future
inclusion of more and more categories of persons to be subjected to DNA
profiling. The system also has the ability to identify an increasing
amount of information about each of its profiled subjects as our
understanding of DNA continues to develop at lightning speed. The
plurality is correct that the DNA profiles currently on file in CODIS are
based on analyses of "junk DNA." See ante at 11433-34. It takes comfort in
the fact that scientists have long assumed that junk DNA is "non-genic,"
that junk DNA samples taken contain only an identifying "fingerprint," and
nothing else. Id. That understanding of junk DNA has been disputed for
some time. See Justin Gillis, Genetic Code of Mouse Published; Comparison
With Human Genome Indicates "Junk DNA" May Be Vital, WASH. POST, Dec. 5,
2002, at A1 (noting that studies in 2002 revealed that junk DNA contains
valuable information about how the body uses genes and that the
"instruction set [contained within junk DNA] is at least as big as the
gene set, and probably bigger"). Moreover, new discoveries are being made
by the day that challenge the core assumption underlying junk DNA's name -
regions of DNA previously thought to be "junk DNA" may be genic after all.
See Clive Cookson, Regulatory Genes Found in "Junk DNA", FIN. TIMES, June
4, 2004, at 11; Function Found for Junk DNA, L.A. TIMES, June 5, 2003, at
A14.
|
| [147] |
The fact that scientists currently lack the capacity to comprehend the
full significance of the data stored within junk DNA samples is
irrelevant. As Judge Gould notes in his concurrence, CODIS retains
individual DNA profiles forever - even if convicted offenders have
completed their debt to society. See Gould concurrence, at 11474.
Moreover, the FBI encourages all laboratories to retain portions of the
evidence samples they collect, see Federal Bureau of Investigation,
Standards for Forensic DNA Testing Labs, at ¶ 7.2, available at
http:/www.fbi. gov/hq/lab/codis/forensic.htm, affording the federal
government the opportunity to re-test and re-analyze a virtually limitless
number of samples as science progresses. See also PDS Brief, at 10 ("The
Act also neither requires, nor even recommends, destruction of samples
after analysis."). Thus, as Judge Gould perceptibly observes, "DNA stores
and reveals massive amounts of personal, private data . . . and the
advance of science promises to make stored DNA only more revealing in
time." See Gould concurrence, at 11474 n.3.
|
| [148] |
What type of information might the government eventually be able to
extract from samples of junk DNA? Even today, as the plurality admits,
"DNA profiles derived by STR may yield probabilistic evidence of the
contributor's race or sex." Ante at 11434. Yet that seems to be a dramatic
understatement. The DNA "fingerprint" entered into CODIS likely has the
potential to reveal information about an individual's "genetic defects,
predispositions to diseases, and perhaps even sexual orientation." See
Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the
Fourth Amendment, 74 Tex. L. Rev. 49, 95-96 (1995) (cited in Br. of Amicus
Curiae Protection & Advocacy, Inc., at 6 [hereinafter Protection &
Advocacy Br.]). DNA analysis can reveal the presence of traits for
thousands of known diseases, and countless numbers of diseases which are
currently unknown. Protection & Advocacy Br., at 6. More ominously,
some have predicted that the DNA profiles entered into CODIS will someday
be able to predict the likelihood that a given individual will engage in
certain types of criminal, or non-criminal but perhaps socially
disfavored, behavior. Id. at 7-8 (citing studies raising the specter that
DNA profiles might be used to study the links between particular genes and
the propensity for social deviance).
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| [149] |
To say that CODIS profiles might actually be used for such purposes is
hardly far-fetched. A report by the Office of Technology Assessment
[hereinafter: OTA] of the U.S. Congress has warned that the "possibility
exists to test DNA acquired specifically for identification purposes for
disease information in a database," and worse, that "[t]his option may
become more attractive over time, especially as the number and types of
probes for genetic orders increase." OTA, Genetic Witness: Forensic Uses
of DNA Tests, July 1990, at 10 (cited in Protection & Advocacy Br. at
12-13). The pressures will only increase as CODIS produces more "hits,"
linking unsolved crime scene evidence to newly entered DNA profiles. The
permanent maintenance of this type of information about untold millions of
Americans, if not indeed about all of our citizens, affords the government
monumental powers to intrude into the core of those intimate concerns
which lie at the heart of the right to privacy.
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| [150] |
It is true, as some of my colleagues argue, that today we are
confronted only with the question of the constitutionality of the program
before us. Yet the current CODIS database, when it is compared to its
modest beginnings, represents an
|
| [151] |
alarming trend whereby the privacy and dignity of our citizens [are]
being whittled away by [ ] imperceptible steps. Taken individually, each
step may be of little consequence. But when viewed as a whole, there
begins to emerge a society quite unlike any we have seen - a society in
which government may intrude into the secret regions of man's life at
will.
|
| [152] |
Osborn v. United States, 385 U.S. 323, 343 (1966) (Douglas, J.,
dissenting). And when such a policy's constitutionality is determined
merely by whether it seems reasonable under the "totality of the
circumstances," we all have reason to fear that the nightmarish worlds
depicted in films such as Minority Report and Gattaca will become
realities. This is especially the case given the potentially endless
duration of our current "war on terror," in the course of which we have
already seen that war-time government seeks rapidly to expand its law
enforcement powers and to increase its authority to take action against
its citizens free from the ordinary rigors of judicial supervision. See,
e.g., The Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA-PATRIOT) Act, Pub. L.
No. 107-56, 115 Stat. 272, §§ 206 (roving wiretaps), 215 (library records
searches), 213 ("sneak and peak" searches) (2001). In such times, the
pressures to expand CODIS further than ever before are certain to
increase.
|
| [153] |
II. The Reasonableness of the Search
|
| [154] |
The Fourth Amendment provides that "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized." U.S. CONST. amend. IV. "The basic purpose of this
Amendment, as recognized in countless decisions of this Court, is to
safeguard the privacy and security of individuals against arbitrary
invasions by governmental officials. The Fourth Amendment thus gives
concrete expression to a right of the people which is basic to a free
society." Camara v. Mun. Court of City and County of San Francisco, 387
U.S. 523, 528 (1967) (internal quotation marks omitted). To serve these
purposes, the Constitution generally requires that searches be supported
by probable cause and be approved prior to execution by a warrant issued
by an impartial magistrate.
|
| [155] |
A. The Constitution Requires Individualized Suspicion for Law
Enforcement Searches
|
| [156] |
The Fourth Amendment's requirement that searches be supported by
reasonable and particularized suspicion and a warrant is deeply rooted in
our history. The historical background of that amendment demonstrates that
our Framers' were steadfastly committed to the ideal that general warrants
and searches conducted in the absence of reasonable and particular
suspicion were intolerable in a democratic society. See Henry v. United
States, 361 U.S. 98, 100 (1959). As the Henry Court noted,
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| [157] |
The general warrant, in which the name of the person to be arrested
was left blank, and the writs of assistance, against which James Otis
inveighed, both perpetuated the oppressive practice of allowing the police
to arrest and search on suspicion. Police control took the place of
judicial control, since no showing of "probable cause" before a magistrate
was required. The Virginia Declaration of Rights, adopted June 12, 1776,
rebelled against that practice: "That general warrants, whereby any
officer or messenger may be commanded to search suspected places without
evidence of a fact committed, or to seize any person or persons not named,
or whose offence is not particularly described and supported by evidence,
are grievous and oppressive, and ought not to be granted." The Maryland
Declaration of Rights (1776), Art. XXIII, was equally
emphatic.
|
| [158] |
That philosophy later was reflected in the Fourth Amendment. And as
the early American decisions both before and immediately after its
adoption show, common rumor or report, suspicion, or even "strong reason
to suspect" was not adequate to support a warrant for
arrest.
|
| [159] |
Id. at 100-102 (internal footnotes and citations omitted). "[T]he
particular way the Framers chose to curb the abuses of general warrants -
and by implication, all general searches - was . . . to retain the
individualized suspicion requirement contained in the typical general
warrant, but to make that requirement meaningful and enforceable, for
instance, by raising the required level of individualized suspicion to
objective probable cause." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,
670 (1995) (O'Connor, J., dissenting) (emphasis in
original).
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| [160] |
In particular, the Framers feared blanket searches, whereby law
enforcement officials would go door-to-door to conduct searches of every
house in an area, regardless of suspicion. See id. (noting that the
Framers may have considered blanket "area searches" even "more worrisome
than the typical general search"). They knew that the use of suspicionless
blanket searches and seizures for investigatory purposes would "subject
unlimited numbers of innocent persons to the harassment and ignominy
incident to involuntary detention." Davis v. Mississippi, 394 U.S. 721,
726 (1969). It is plain that "the Fourth Amendment was meant to prevent
[such] wholesale intrusions upon the personal security of our citizenry."
Id.
|
| [161] |
Fourth Amendment jurisprudence has evolved considerably over the
years. The Court has recognized, for example, a number of reasonable
departures from the warrant requirement and in some instance has relaxed
the level of suspicion required before a law enforcement official may
conduct a search. See, e.g., Terry v. Ohio, 392 U.S. |