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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).
|
| [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.
|
| [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,
|
| [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).
|
| [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. 1, 24-25 (1968)
(upholding "stop and frisk" searches upon reasonable suspicion as a
general exception to the warrant requirement); Chimel v. California, 395
U.S. 752, 762 (1969) (upholding searches conducted incident to arrest as a
general exception to the warrant requirement). The Court has even approved
certain limited categories of non-law enforcement searches conducted in
the absence of any suspicion at all. See, e.g., United States v. Ramsey,
431 U.S. 606, 616 (1977) (upholding suspicionless border searches
"pursuant to the longstanding right of the sovereign to protect itself by
stopping and examining persons and property crossing into this country");
New York v. Burger, 482 U.S. 691, 702 (1987) (upholding warrantless
inspections of closely-regulated businesses as a special need beyond the
need for normal law enforcement); Treasury Employees v. Von Raab, 489 U.S.
656 (1989) (upholding suspicionless drug testing of high-risk United
States customs officials as a special need beyond the need for normal law
enforcement); Chandler v. Miller, 520 U.S. 305, 323 (1997) (affirming,
without deciding explicitly, the constitutionality of blanket
suspicionless searches at airports and entrances to federal buildings when
such searches are carefully calibrated to meet a "substantial and real"
risk to public safety).*fn51 However, the existence of the Warrant Clause in the
Fourth Amendment demonstrates beyond doubt that there are some categories
of searches "for which individualized suspicion is nonnegotiable."
Vernonia, 515 U.S. at 673 (O'Connor, J., dissenting). And whether one
attempts to manufacture neat categories with clever names, see ante, at
11455-57, or groups them all into one large category of cases involving
"special needs,"*fn52 see Burger, 482 U.S. at 702, the overriding lesson
is clear: when the government wishes to search individuals in order to
obtain evidence of ordinary criminal wrongdoing, some level of
individualized suspicion is required.*fn53
|
| [162] |
B. The Special Needs Doctrine
|
| [163] |
Never once in over two hundred years of history has the Supreme Court
approved of a suspicionless search designed to produce ordinary evidence
of criminal wrongdoing for use by the police.*fn54 The constitutional tradition described in Henry has
been reaffirmed over time, most prominently in recent years by the
majority opinion in Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond,
the Court explained that
|
| [164] |
A search or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing. While such suspicion is not an
"irreducible" component of reasonableness, we have recognized only limited
circumstances in which the usual rule does not apply. For example, we have
upheld certain regimes of suspicionless searches where the program was
designed to serve special needs, beyond the normal need for law
enforcement.
|
| [165] |
Id. at 37 (emphasis added); see also Vernonia, 515 U.S. at 671
(O'Connor, J., dissenting) ("The view that mass, suspicionless searches,
however evenhanded, are generally unreasonable remains inviolate in the
criminal law enforcement context."). Edmond held that the only recognized
exception to the general rule that searches be based on some type of
individualized suspicion is when the search is justified by "special
needs, beyond the normal need for law enforcement," that render
inoperative the Framers' historic mistrust of excessive power in the hands
of the police. Edmond, 531 U.S. at 37. Therefore, no programmatic
suspicionless search is reasonable unless the special need is "divorced
from the State's general interest in law enforcement." Ferguson v. City of
Charleston, 532 U.S. 67, 79 (2001) (holding unconstitutional a state
hospital program that tested pregnant women for drug use and then made
available to the police the results of the tests on the grounds that the
"immediate objective of the [suspicionless] searches was to generate
evidence for law enforcement purposes").
|
| [166] |
Although the "general interest in law enforcement" does not refer to
every law enforcement objective, see, e.g., Illinois v. Lidster, 124 S.Ct.
885, 889 (2004) (upholding a suspicionless traffic stop under the special
needs doctrine when the searches were designed to elicit information not
about the occupants of the vehicle, "but other individuals"), valid
special needs, as the Court most recently explained in Lidster, may not
include efforts to obtain information related to possible crimes that the
searched individual may have committed. See 124 S.Ct. at 889. Further
support for this principle comes from the cases involving school drug
testing. In those cases, the Court has drawn a clear distinction between
searches conducted for the purpose of solving and/or punishing crime and
those searches conducted without the involvement of punitive consequences
or law enforcement officials. See, e.g., Bd. of Educ. v. Earls, 536 U.S.
822, 833 (2002) (emphasizing that "the test results are not turned over to
any law enforcement authority"); see also Vernonia, 515 U.S. at 658 n.2
(stressing that the "search here is undertaken for prophylactic and
distinctly non-punitive purposes") (emphasis added); Von Raab, 489 U.S. at
666 (noting that test results "may not be used in a criminal prosecution
of the employee without the employ-ee's consent").
|
| [167] |
In short, the Court has never, ever, upheld a regime of suspicionless
searches based on the government's desire to pursue ordinary law
enforcement objectives. See Edmond, 531 U.S. at 41 (noting that the Court
had "never approved [a general program of suspicionless seizures] whose
primary purpose was to detect evidence of ordinary criminal wrongdoing");
see also Vernonia, 515 U.S. at 658; Von Raab, 489 U.S. at 679; Skinner,
489 U.S. at 620-621. To the contrary, the Court explicitly disapproved
such searches in Edmond and explained that permitting suspicionless
searches to be justified by "the general interest in crime control" would
allow such intrusions to become "a routine part of American life." 531
U.S. at 42.*fn55
|
| [168] |
When we are evaluating the reasonableness of a suspicionless search,
conducted pursuant to a programmatic search regime, "we consider all the
available evidence in order to determine the relevant primary purpose."
Ferguson, 532 U.S. at 81. No matter what the "ultimate goal" of the
statute itself may be, the question we ask is whether "the immediate
objective of the searches was to generate evidence for law enforcement
purposes." Id. at 83 (emphasis in original).*fn56 If so, the search is unconstitutional. See id. at
86; see also Lidster, 124 S.Ct. at 890.
|
| [169] |
The unequivocal purpose of the searches performed pursuant to the DNA
Act is to generate the sort of ordinary investigatory evidence used by law
enforcement officials for everyday law enforcement purposes. The
government maintained from the outset of this litigation that the purpose
of the searches authorized by the DNA Act is to "help law enforcement
solve unresolved and future cases."*fn57 Moreover, it is plain that in passing the DNA Act,
Congress's primary concern was the swift and accurate solution and
prosecution of crimes as a general matter. The legislative history is
littered with approving references to DNA evidence's ability to solve past
and future crimes and thereby assist prosecutions. See, e.g., DNA Act
House Report, at 8-11, 23-27, 32-36 (2000). For example, the Department of
Justice argued to Congress that "one of the underlying concepts behind
CODIS is to create a database of convicted offender profiles and use it to
solve crimes for which there are no suspects." Id. at 27. Members of
Congress made similar arguments. See 146 CONG. REC. S11645-02, at S11647
(daily ed. Dec. 6, 2000) (arguing that the purpose of adding DNA profiles
into CODIS is to "solve crimes and prevent further crimes") (statement of
Sen. Leahy); 146 CONG. REC. H8572-02, at H8575-6 (daily ed. Oct. 2, 2000)
(statement of Rep. Canady) ("The purpose of [CODIS] is to match DNA
samples from crime scenes where there are no suspects with the DNA of
convicted offenders. Clearly, the more samples we have in the system, the
greater the likelihood we will come up with matches and solve cases.").*fn58
|
| [170] |
There can be no question that the government's primary purpose in
conducting searches pursuant to the DNA Act is to generate evidence
capable of assisting ordinary law enforcement investigations. The searches
are designed to reveal at some point in time whether the individuals whose
blood samples are involuntarily extracted have "committed some crime."
Lidster, 124 S.Ct. at 889. This is the paradigmatic search condemned by
the special needs doctrine.
|
| [171] |
Some, including the Government and Judge Gould in his concurring
opinion, maintain that the DNA Act serves a constitutionally valid
"special need" because the Fourth Amendment intrusion serves the state's
need to supervise its conditional releasees. In Griffin v. Wisconsin, 483
U.S. 868 (1987), the Court held constitutionally reasonable the search of
a probationer conducted pursuant to a Wisconsin probation regulation that
permitted probation officers to conduct warrantless searches of
probationers' homes so long as " 'reasonable grounds' to believe the
presence of contraband" supported the search. Id. at 870-71. The
regulation was not made a special condition of Griffin's probation, but
instead applied to all probationers statewide. The Court held that the
operation of the probation system presented a "special need" beyond that
of normal law enforcement - the state's need to "exercise [ ] supervision
to assure that [probation] restrictions are in fact observed." Id. at 875;
see id. (holding that probation is "a 'special need' of the State,
permitting a degree of impingement upon privacy that would not be
constitutional if applied to the public at large").
|
| [172] |
For several reasons, Griffin does not support the validation of the
search regime prescribed by the DNA Act. First and foremost, as I have
already explained, the primary purpose of the DNA Act is to collect
information for ordinary law enforcement purposes - to help law
enforcement authorities determine whether specific individuals have
committed particular crimes. It is not to assist in the supervision of
releasees, the purpose the Griffin Court identified.*fn59
|
| [173] |
Second, although Griffin involved probationers, one of the classes of
persons covered by the DNA Act, the similarities end there. Unlike in
Griffin, the DNA Act involves surveil-lance that extends far beyond
conditional releasees' periods of supervision. Contrary to the plurality's
suggestion, the government's alleged interest in Griffin supervision - was
not, according to the Court, a "clear law enforcement" objective. See
ante, at 11443. Instead, the purpose of the search regime in Griffin was
to facilitate the supervision of probationers during the finite term of
their probation period; certainly, it was not to produce unbounded
evidence of past or future crimes for inclusion in a permanent
governmental database. Griffin explained its departure from the warrant
and probable cause requirement by referring repeatedly to the special
supervisory interests at the heart of the probation system.
|
| [174] |
A warrant requirement would interfere to an appreciable degree with
the probation system, setting up a magistrate rather than the probation
officer as the judge of how close a supervision the probationer requires.
Moreover, the delay inherent in obtaining a warrant would make it more
difficult for probation officials to respond quickly to evidence of
misconduct, and would reduce the deterrent effect that the possibility of
expeditious searches would otherwise create. . . . Although a probation
officer is not an impartial magistrate, neither is he the police officer
who normally conducts searches against the ordinary citizen. . . . In such
a setting, we think it reasonable to dispense with the warrant
requirement.
|
| [175] |
483 U.S. at 876 -77.
|
| [176] |
By contrast, the purpose of the DNA Act is to obtain material for
inclusion in a permanent databank to help solve crimes that may have been
committed prior to the individual's term of supervised released but, most
often, will be committed at some time after his term of supervision is
complete.*fn60
|
| [177] |
Although probation officers are forced to collect the blood samples
under the Act, they are required immediately thereafter to turn them over
to the FBI for analysis, permanent storage in CODIS, and future use by law
enforcement officials for law enforcement purposes. See 42 U.S.C.A. §
14135a(b). Any use of the DNA samples to solve crimes committed during the
period of supervised release is thus incidental to the primary purpose of
the Act. And, under the special needs doctrine, it does not matter that an
ancillary benefit of the Act may be to make the task of supervising
conditional releasees somewhat easier. Even the presence of a "benign"
motive cannot "justify a departure from Fourth Amendment protections,
given the pervasive involvement of law enforcement" interests. Fergu-son,
532 U.S. at 84-85 & n.22.
|
| [178] |
Third, CODIS is not limited to or even designed primarily to cover
federal probationers or parolees. By the terms of the DNA Act, CODIS
covers all persons convicted of the Act's qualifying offenses regardless
of whether they are incarcerated in penal institutions or placed on
supervised release. The overwhelming majority of individuals convicted of
federal offenses are not sentenced to probation; they are sentenced to
prison, where, under the Act, the compulsory extraction of blood samples
occurs.*fn61 See generally U.S. Dep't of Justice Bureau of
Justice Statistics, Compendium of Federal Justice Statistics, 2001,
available at http://www.ojp.usdoj.gov/bjs/ pub/pdf/cfjs0105.pdf (last
visited July 7, 2004) (noting that in 2000-2001, 74.5% of convicted
offenders were sentenced to prison while only 17.5% were sentenced to
probation).*fn62
|
| [179] |
CODIS now also includes DNA profiles of members of the armed forces,
despite the fact that the army's DNA repository was originally promised to
be used only "for the identification of human remains." See Br. of Amicus
Curiae Pub. Defender Serv. for the Dist. of Columbia, at 13 (citing 62
Fed. Reg. 51835, 51835 (Oct. 3, 1987)). Thus, the relevance of an
individual's conditional release status to the CODIS program is highly
attenuated. Only a very small percentage of persons covered by the Act are
subjected to compulsory blood extraction while on conditional release, and
the use of the information collected is not limited to that period of
time. In no way can it fairly be said that, like Griffin, CODIS is a
program designed to aid in the supervision of conditional
releasees.
|
| [180] |
Last but not least, the Griffin Court confronted a search regime which
required reasonable suspicion before any search could be conducted. See
483 U.S. at 871; see also id. at 880 n.8 (holding that "the only
regulation upon which we rely for our constitutional decision is that
which permits a warrantless search on 'reasonable grounds.' "). The
state's supervisory interests, beyond the normal needs of law enforcement,
were implicated in Griffin precisely because the searches were designed to
check on individual probationers who were suspected of violating the terms
of their conditional release. Neither Griffin nor any later precedent
supports holding constitutional under the special needs doctrine all state
regulations relating to the supervision of probationers and parolees
without suspicion and notwithstanding the presence of an ordinary law
enforcement purpose as the primary factor underlying the search.*fn63
|
| [181] |
C. Conclusion
|
| [182] |
The Fourth Amendment forbids blanket suspicionless searches conducted
for ordinary law enforcement purposes. Under the plurality's opinion, the
only remaining area of the Fourth Amendment that has been "nonnegotiable"
would no longer be safe. Like Judge Gould, I believe that the special
needs doctrine controls this case. Unlike Judge Gould, however, I would
hold that the DNA Act is plainly designed to generate evidence of ordinary
criminal wrongdoing, and not to serve a supervisory need, as was the case
in Griffin. That is an impermissible purpose under the special needs
doctrine. Consequently, I would hold that, under that doctrine, the Act is
unconstitutional.
|
| [183] |
III. The Totality of the Circumstances Test
|
| [184] |
The plurality takes a far more dangerous course than does Judge Gould
in his concurrence. The concurrence simply applies, or misapplies, the
special needs doctrine. At least under that doctrine, suspicionless
searches are carefully scrutinized and held constitutional only when they
serve a valid special need apart from law enforcement. The plurality,
however, believes that suspicionless searches do not need to be justified
on the traditional basis employed by the Supreme Court. Casting aside the
Court's established framework for analyzing blanket suspicionless search
regimes, the plurality instead employs a malleable and boundless standard
- it asks merely whether the search was reasonable considering "the
totality of the circumstances present." See, e.g., United States v.
Knights, 534 U.S. 112, 121 (2001). The approach chosen by the plurality
dispenses with the structural guarantees that have guided Fourth Amendment
jurisprudence since the Founding. It eliminates the constitutional
guarantee that law enforcement searches will not be conducted in the
absence of individualized suspicion and opens the door to all kinds of
bureaucratic nationwide governmental programs that disregard the Fourth
Amendment rights of our citizens, with the only remaining safeguard being
the willingness of the judiciary to weigh properly the relative importance
of the general law enforcement interests and the individual's privacy
right. As I show infra, and as today's decision demonstrates, that is a
thin reed indeed. The plurality's doctrinal decision to apply a totality
of the circumstances test to a suspicionless law enforcement search is
just as regrettable, and even more reckless, than its pragmatic decision
to find constitutional the mass involuntary extraction, collection, and
permanent storage of DNA samples in CODIS for future use.
|
| [185] |
A. Precedent Does Not Support the Totality of the Circumstances
Approach
|
| [186] |
No Supreme Court case supports the plurality's use of the totality of
the circumstances test for suspicionless searches designed to obtain
evidence for use against the persons searched in present or future
criminal investigations. The Knights decision, the only opinion to which
the plurality points, does not support the view that, because the group
searched includes conditional releasees, we may simply disregard the
principles governing traditional Fourth Amendment law, and conduct law
enforcement searches in the absence of individualized suspicion.*fn64
|
| [187] |
Knights upheld a warrantless search of a probationer's home; the
defendant's terms of probation included an explicit condition mandating
submission to such searches at any given time. 534 U.S. at 116. Knights
clearly decided the Fourth Amendment question outside of the "special
needs" framework. 534 U.S. at 117-18 (stating the question presented as
whether warrantless searches of probationers are constitutionally
reasonable without reference to the "special needs" of the probation
system - the question that the Griffin Court found it "unnecessary to
consider"). The Court distinguished the "special needs" line of cases, but
it did so cautiously, explaining that its departure from that framework
was justified only by the combination of all of the circumstances present.
534 U.S. at 118. The plurality is correct that those circumstances
included the reduced expectation of privacy held by Knights on account of
the conditions of his probation. But the circumstances also included, as
the Court emphasized repeatedly, the fact that the search was supported by
reasonable suspicion:
|
| [188] |
We hold that the balance of these considerations requires no more than
reasonable suspicion to conduct a search of this probationer's house. The
degree of individualized suspicion required of a search is a determination
of when there is a sufficiently high probability that criminal conduct is
occurring to make the intrusion on the individual's privacy interest
reasonable. Although the Fourth Amendment ordinarily requires the degree
of probability embodied in the term 'probable cause,' a lesser degree
satisfies the Constitution when the balance of governmental and private
interests makes such a standard reasonable. Those interests warrant a
lesser than probable-cause standard here. When an officer has reasonable
suspicion that a probationer subject to a search condition is engaged in
criminal activity, there is enough likelihood that criminal conduct is
occurring that an intrusion on the probationer's significantly diminished
privacy interests is reasonable.
|
| [189] |
The same circumstances that lead us to conclude that reasonable
suspicion is constitutionally sufficient also render a warrant requirement
unnecessary.
|
| [190] |
534 U.S. at 121 (internal citations omitted) (emphasis added); see
also id. at 119 n.6 (noting that "we need not address the
constitutionality of a suspicionless search because the search in this
case was supported by reasonable suspicion"); id. at 122 ("We therefore
hold that the warrantless search of Knights, supported by reasonable
suspicion and authorized by a condition of probation, was reasonable
within the meaning of the Fourth Amendment.").
|
| [191] |
The passage from Knights quoted above strongly suggests that the
Court's willingness to ignore the limitations imposed by the special needs
doctrine was based largely on the presence of individualized suspicion. I
say suggests because the Court never explained its reasons for applying
the totality of the circumstances test. The Court said only that "[w]e
need not decide whether Knights' acceptance of the search condition
constituted consent in the Schneckloth sense of a complete waiver of his
Fourth Amendment rights, however, because we conclude that the search of
Knights was reasonable under our general Fourth Amendment approach of
'examining the totality of the circumstances.' " 534 U.S. at 118 (quoting
Ohio v. Robinette, 519 U.S. 33, 39 (1996)).*fn65 It is important to understand this statement in its
proper historical context.
|
| [192] |
The "general Fourth Amendment approach" described by the Knights
plurality refers to those Fourth Amendment cases in which the Court has
sought either to determine the minimum level of suspicion required to
support a particular type of search or to measure whether the quantum of
suspicion officers possessed in a given case was sufficient to meet the
requisite level. Indeed, the "totality of the circumstances" test was
designed to guide the Court in its probable cause and reasonable suspicion
determinations. See Illinois v. Gates, 462 U.S. 213, 238 (1983)
(explaining that the "totality of the circumstances analysis [ ] has
traditionally informed probable cause determinations"). The test has never
been used, however, to justify suspicionless law enforcement searches. To
the contrary, in "totality of the circumstances" cases, the presence of
some level of suspicion has always been a given and a sine qua non. Cases
involving suspicionless programmatic search regimes are not "general"
Fourth Amendment cases. That is why the plurality cannot cite a single
case that has applied the totality of the circumstances test to a regime
of suspicionless searches.
|
| [193] |
Despite this history, and despite the strongly suggestive language in
Knights, the plurality implausibly maintains that drawing a line between
suspicion-based and suspicionless searches is unnecessary because "special
needs analysis [is] triggered not by a complete absence of suspicion, but
by a departure from the Fourth Amendment's warrant-and-probable cause
requirements." Ante, at 11452. In support of this proposition, the
plurality cites Griffin, which applied a "special needs" analysis despite
the fact that the search of Griffin was supported by reasonable suspicion.
Id. The plurality somehow infers from this that the "totality of the
circumstances" test is not limited to searches based on reasonable
suspicion. The plurality's logic is faulty. The fact that a suspicionless
search must be justified on the basis of special needs in no way means
that a suspicion-supported search cannot be justified on that basis. For
instance, if the special need of the state to prevent drunk driving on the
highways, see Sitz, 496 U.S. at 451, justifies traffic stops where no
individualized suspicion exists, certainly that same need would justify
such stops based on a reasonable suspicion that particular drivers were in
fact drunk.*fn66 In any event, the line between suspicionless law
enforcement searches and searches based upon reasonable individualized
suspicion is as old as the Fourth Amendment and is fundamental to the
preservation of the privacy interests which that provision
protects.
|
| [194] |
The best way to make sense of Knights, in light of Griffin and the
Court's "special needs" cases, is to recognize that in Knights the Court
was free to apply the "totality of the circumstances" test because the
search was supported by individualized suspicion.*fn67 True, the Knights Court could just as well have
followed Griffin's lead and justified the search on the basis of the
state's special need to operate its probation system. However, given the
presence of individualized suspicion, either doctrinal approach was
appropriate. Because the DNA Act's authorized blanket searches are not
supported by any modicum of individualized suspicion, I would hold that
the "special needs" line of cases controls our analysis of this case, and
that the totality of the circumstances test may not be
applied.
|
| [195] |
B. The Dangers of Adopting the Totality of the
Circumstances
|
| [196] |
The rationale employed by the plurality would set us on a dangerous
path. The plurality claims that the totality of the circumstances analysis
applies simply because probationers and parolees have reduced expectations
of privacy. If that is the case, it is impossible to see why a similar
test would not apply in a multitude of other circumstances in which no
individualized suspicion exists. I do not mean to suggest that the
application of the totality of the circumstances test is dangerous per se.
As I have explained, courts have traditionally balanced all of the
relevant circumstances when evaluating the sufficiency of an officer's
suspicion to search in the absence of a warrant or determining whether
reasonable suspicion rather than probable cause is sufficient. The danger
in the plurality's approach lies in its willingness to apply the totality
of the circumstances test to uphold law enforcement searches where no
suspicion at all exists. Under such an approach, all of us would
inevitably have our liberty eroded when our privacy interests are balanced
against the "monumental" interests of law enforcement.
|
| [197] |
The plurality's rationale, if employed in future cases, would result
in the end of the Fourth Amendment's general requirement that searches be
based on individual suspicion. Under the plurality's reasoning, "the
judicial assessment of a parole or probation search's reasonableness
outside the strictures of special needs analysis," ante at 11458, is
justified by the fact that conditional releasees have "diminished
expectations of privacy." If reduced expectations of privacy render
inapplicable the requirement of individualized suspicion, then
suspicionless searches would be valid in many more situations than the
plurality would presently be willing to admit.
|
| [198] |
The Court has identified countless groups of individuals who have
reduced expectations of privacy. Conditional releasees are obviously one
such group. See Morrissey v. Brewer, 408 U.S. 471, 478 (1972). But they
are not the only one. All students who attend public schools have
significantly diminished expectations of privacy, Bd. of Educ. v. Earls,
536 U.S. 822, 830-31 (2002), and students who voluntarily participate in
extracurricular activities have even less of an expectation, see id. at
831-32.*fn68 Drivers and passengers of vehicles have reduced
expectations of privacy. See, e.g., Wyoming v. Houghton, 526 U.S. 295, 303
(1999); Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). Arrestees'
privacy expectations, too, appear to be significantly reduced. See Chimel
v. Califor-nia, 395 U.S. 752, 762-63 (1969). These are but a few examples.
Under the analysis engaged in by the plurality, a totality of the
circumstances test would apply to any suspicionless search regime
involving these groups. Certainly, the totality of the circumstances test
would apply when we are forced to review again the DNA Act once it is
expanded, as it inevitably will be, to require DNA samples from all
arrestees - a particularly frightening prospect when one considers that
the Constitution apparently allows police officers to arrest individuals
for a nearly limitless range of conduct, including refusing to provide
one's name to an inquiring law enforcement official. See Hiibel v. Sixth
Judicial Dist. Court of Nevada, ___ U.S. ___, No. 03-5554, 2004 WL 1373207
(June 21, 2004); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001).
|
| [199] |
If the totality of the circumstance test could be used to justify
suspicionless law enforcement searches, the Fourth Amendment would be
little more than an afterthought as the government seeks to conduct more
and more invasive general programs in the name of law enforcement. This
would be so even if the searches, at least initially, were confined to
persons with reduced expectations of privacy. We have already seen the
expansion of CODIS and the DNA Act an expansion that today is authorized
by my colleagues under the Fourth Amendment. Even worse, if such expansion
is possible with respect to forcible extractions of blood to be included
in CODIS, numerous less or equally intrusive methods of evidence
collection namely, all ordinary searches and seizures except perhaps for
those requiring more extensive bodily invasions - will all be valid when
justified by the govern-ment's "persuasive" law enforcement objectives -
at least for the vast majority of us who at some times or others in our
lives have a reduced expectation of privacy. Indeed, in the face of
"monumental" governmental law enforcement interests, I find it difficult
to understand when suspicionless searches would be found to violate the
Fourth Amendment.
|
| [200] |
The plurality's answer to this is not reassuring: "Where a given
search or class of searches cannot satisfy the traditional totality of the
circumstances test, conditional releasees may lay claim to constitutional
relief - just like any other citizen." Ante, at 11462-63.*fn69 The problem with my the plurality's view is that
under the balancing analysis it has performed, it is difficult to imagine
how privacy interests could ever prevail over law enforcement
needs.
|
| [201] |
Here, the plurality proclaims that the search in question consists
only of the physical piercing of an individual's skin in order to extract
his blood. Despite the obvious privacy intrusions suffered by those whose
data are included in a permanent governmental database, with which the
government can conduct repeated searches of the individual's genetic
profile forever, the plurality concludes that the Fourth Amendment
intrusion constitutes an "insignificant" invasion of privacy. If the
invasion were insignificant, the government would not need to do much to
show that its interests made the "insignificant" search reasonable.
According to the plurality,
|
| [202] |
It is no doubt true that conditional releasees retain a right of
privacy against arbitrary or harassing searches, just as they retain a
right of privacy against government searches based on their race,
religion, or ethnicity, or other factors that might violate the Fourteenth
Amendment. U.S. CONST. amend. XIV. The problem with the plurality's view,
of course, is that the Fourth Amendment prevents searches that are
"unreasonable," not simply searches that are arbitrary, capricious, or
harassing. U.S. CONST. amend. IV. And while few suspicionless programmatic
searches would count as arbitrary or capricious, many may well be
constitutionally unreasonable because of the underlying programmatic
purpose. See, e.g., Ferguson, 532 U.S. at 81-82. The fact that conditional
releasees will retain their basic equal protection and due process rights
is no reason to eviscerate the core of traditional Fourth Amendment
protections against unreasonable searches and seizures.
|
| [203] |
The claim that conditional releasees will somehow be able to file a
lawsuit under 28 U.S.C. § 1983 is not credible. Even if the plurality did
not assert that there is an "overwhelming" and "monumental" public
interest in completing a comprehensive national DNA database, it is
utterly implausible to think that any court would find that a search
conducted pursuant to a statute like the DNA Act, or a general traffic
regulation such as the ones at issue in Edmond and Lidster, could possibly
violate communal standards of "fair play and decency." Ante at 11462-63
& n.29. Additionally, the availability of a cause of action under §
1983 is not a justification to deny an individual his Fourth Amendment
rights. however, society has an "overwhelming interest" in ensuring that
conditional releasees comply with the terms of their release, an "enormous
interest in reducing recidivism," and a substantial interest in
contributing to the solution of past offenses in order to bring "closure
to countless victims of crime." Ante, at 11468-69. The combined weight of
these interests, we are told, is "monumental." Id. at 11469. So, likely,
would be the law enforcement interests in any suspicionless search
regime.*fn70
|
| [204] |
The impotence of judicial review under the "totality of the
circumstances" approach is on full display in the plurality's opinion. The
"balancing of interests" does not provide much of a balance - to the
contrary, any reasonable reading of the plurality's decision reveals that
the "balance" will always tilt in favor of the government. "There have
been powerful hydraulic pressures throughout our history that bear heavily
on the Court to water down constitutional guarantees and give the police
the upper hand. That hydraulic pressure has probably never been greater
than it is today." Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J.,
dissenting). The plurality's boundless regime has already buckled under
the pressures to strengthen the hand of law enforcement; it will only
worsen as the "war on terror" demands more. I see no reason to depart from
the workable constitutional framework, supported by generations of
considered jurisprudence on the matter, for determining when suspicionless
programmatic searches are permissible and when they are not. I would limit
our inquiry to the special needs test.
|
| [205] |
C. Even Under the Totality of the Circumstances Test, the Searches
Authorized by the DNA Act Are Unreasonable
|
| [206] |
Although the test used by the plurality provides no meaningful
guidance, I believe that even under that standard a faithful application
of the principles central to the Fourth Amendment would require
invalidation of the search regime. Under a balancing test, whether a given
search is reasonable turns on several factors - the level of the searched
individual's expectation of privacy, the character of the intrusion, and
the strength of the government's interests - all of which must be balanced
against each other in light of the facts of each case. Balancing those
factors, I would hold that the totality of the circumstances makes the
searches authorized by the DNA Act unreasonable.
|
| [207] |
1. The Extent of the Intrusion Caused by the Search
|
| [208] |
The intrusion authorized by the DNA Act is significant. As the Supreme
Court explained in Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602
(1987), "a compelled intrusion into the body for blood to be analyzed . .
. must be deemed a Fourth Amendment search. In light of our society's
concern for the security of one's person, it is obvious that this physical
intrusion, penetrating beneath the skin, infringes an expectation of
privacy that society is prepared to recognize as reasonable." Id. at 616
(internal quotation marks omitted); see also Schmerber v. California, 384
U.S. 757, 767 (1966); United States v. Wright, 215 F.3d 1020, 1025 (9th
Cir. 2000). Even though the Court has in some cases upheld such searches
as constitutional, it has insisted that searches of an individual's body
are "severe, though brief, intrusion[s] upon cherished personal security
that [are] subject to constitutional scrutiny." Cupp v. Murphy, 412 U.S.
291, 295 (1973).
|
| [209] |
It is true that courts have sometimes described the privacy invasion
caused by blood tests in less forceful terms. The search in question,
however, constitutes far more of an intrusion than the mere insertion of a
needle into an individual's body and the consequent extraction of a blood
sample.*fn71 In prior cases dealing with the level of intrusion
authorized by the taking of blood samples, courts did not confront a
regime in which the samples were turned into profiles capable of being
searched time and time again throughout the course of an individual's
life. See, e.g., Schmerber, 384 U.S. at 768-69 (describing the blood test
as designed to produce evidence of inebriation at the time of the search).
The startling advance of technology has magnified the power of the initial
search authorized by the DNA Act, such that the invasion of privacy is
vastly more significant that we might have previously assumed. Here, the
DNA placed in the CODIS database contains sensitive information, and no
one can say today what future uses will be made of it once it is entered
into governmental files; certainly, today's restrictions provide no
guarantees regarding future governmental uses. To reduce the searches
authorized by the DNA Act to the physical act of taking blood would be to
ignore the "totality of the circumstances" surrounding the search and to
ignore the manner in which "the advance of technology" has affected "the
degree of privacy secured to citizens by the Fourth Amendment." Kyllo v.
United States, 533 U.S. 27, 33-34 (2001). We cannot ignore technological
developments in the Fourth Amendment context, but instead must confront
"what limits there are upon this power of technology to shrink the realm
of guaranteed privacy." Id. at 34.
|
| [210] |
I would hold that the invasion of privacy required by the DNA Act is
substantial. The Act is unprecedented in its scope and threatens only to
expand once we have justified its initial forms. With the substantial
nature of the invasion in mind, I turn to the reasonable expectations of
privacy held by probationers and parolees.
|
| [211] |
2. The Expectation of Privacy
|
| [212] |
It is by now a banal observation that probationers and parolees have
diminished expectations of privacy. See United States v. Knights, 534 U.S.
112, 119 (2001). As Knights explained, probationers' and parolees'
expectations of privacy are curtailed, and society may therefore impose
"reasonable conditions that deprive the offender of some freedoms enjoyed
by law-abiding citizens." Id. at 119 (emphasis added). But the error the
plurality makes is treating a reduction of "some freedoms" as if it were
equivalent to the elimination of all. Despite my colleagues' evident views
to the contrary, conditional releasees do retain privacy expectations. All
of the authorities cited by the plurality discuss the reduced, not the
"eliminated," expectations of privacy conditional releasees have during
their period of supervision by the state. See, e.g., id. at 118-19
(emphasizing that the most salient fact in its totality of the
circumstances analysis was that Knights was subject to a "probation search
condition" that "significantly diminished [his] reasonable expectation of
privacy"); Griffin, 483 U.S. at 874; Latta v. Fitzharris, 521 F.2d 246,
249 (9th Cir. 1975) (en banc) (plurality opinion).
|
| [213] |
Moreover, the impact of the DNA Act is not limited to persons in a
conditional release status. It affects individuals who have completed
their period of supervision, as well as some who have never been subject
to that status. The data of some arrestees are now included in CODIS and
there is little doubt that the collection of data from far more will soon
be completed. In any event even probationers and parolees have full
expectations of privacy once they have paid their dues to society and have
completed their terms of conditional release. The plurality, however, has
concluded 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' " Ante, at 11462-63. In other words, convicted
offenders' reduced privacy expectations may last forever.
|
| [214] |
I respectfully disagree with the plurality's assessment of the privacy
expectations held by individuals subjected to searches under the DNA Act.
I conclude that despite probationers' and parolees' diminished
expectations of privacy, those expectations they retain must be given
sufficient weight in the balancing process.
|
| [215] |
3. The Governmental Interests
|
| [216] |
I now turn to the government's interests in conducting the searches in
question. The plurality has described these interests as "enormous,"
"overwhelming," and "monumental." Certainly, one would think that such
interests involve the prevention of a terrorist act, the defusing of a
ticking bomb, the discovery of the missing weapons of mass destruction, or
something similarly weighty. Not so. According to the plurality, these
words describe the normal, everyday needs of law enforcement - preventing
crimes, encouraging rehabilitation, and bringing closure to victims by
solving old crimes. I agree that the government has a very strong interest
in solving and deterring crime. But I disagree that the interests sought
to be advanced by the DNA Act are anything other than the ordinary needs
advanced in favor of every program designed to assist crime control. See
supra, at 11501-02 (describing the Act's primary purpose).
|
| [217] |
In order to make the government's interests appear stronger than they
are, the plurality contends that searches pursuant to the Act serve the
commendable purpose of ensuring that the innocent will not be wrongly
convicted. See ante, at 11469 n. 38. I would certainly hope that the Act
would be used for such purposes. Recent experience has shown that DNA
evidence can help exonerate the wrongfully convicted,*fn72 and I would be the first to applaud a statute that
helped wrongfully accused or convicted individuals obtain DNA analysis for
that worthy purpose.
|
| [218] |
Unfortunately, that is not the Act we review today. The DNA Act does
nothing to assist the wrongfully accused or convicted. The Act provides no
option for DNA testing to those who seek to prove their innocence, and no
funding to states or localities to help provide DNA sampling when
requested by those who contend that were wrongfully arrested or convicted.
It simply requires the collection and maintenance of blood samples from
those in our society the state believes to be the most likely to commit
crimes. It is thus difficult to accept the government's representation of
its concerns regarding the innocent.
|
| [219] |
It is undoubtedly true that were we to maintain DNA files on all
persons living in this country we would make the resolution of criminal
investigations easier.*fn73 The same would be true were we willing to sacrifice
all of our interests in privacy and personal liberty. Those who won our
independence chose, however, not to follow that course but instead to
provide us with the safeguards contained in the Fourth Amendment. We as
judges do not have the authority to sacrifice those constitutional
protections.
|
| [220] |
D. Summary
|
| [221] |
Were we to apply the totality of the circumstances analysis, I would
hold that the balance of considerations makes the pro-grammatic
suspicionless searches unconstitutionally unreasonable. The invasions of
privacy the Act authorizes are substantial; the probationers and parolees
subjected to its provisions maintain reasonable expectations of privacy;
and the government's interest, while significant, is no stronger than its
ordinary interest in investigating and prosecuting crimes. On balance, the
government's desire to create a comprehensive DNA databank must give way
when weighed against the privacy interests at issue and the extent of the
intrusion involved.
|
| [222] |
When democratic values are lost, society often looks back, too late,
and says when did this happen - why didn't we understand before it was too
late? Today's decision marks one of those turning points - a fatally
unwise and unconstitutional surrender to the government of our liberty for
the sake of security, and, should the plurality's theory ever become law,
the establishment of a doctrine that would leave us without the legal
tools to halt further abolition of our privacy rights. The compulsory
extraction of blood samples and the maintenance of permanent DNA profiles
of American citizens is, unfortunately, the beginning not the end. 1984
arrives twenty years later than predicted.
|
| [223] |
IV. Conclusion
|
| [224] |
Thomas Cameron Kincade was convicted of committing several crimes. He
has paid his debt to society by serving his time for those offenses. His
current term of supervised release, which ironically was imposed on him
for his refusal to submit a blood sample as required by the DNA Act, will
expire shortly after the publication of these opinions on August 24, 2004.
At that time, the state will cease to have a supervisory interest over
Kincade. Yet Kincade, by the terms of the DNA Act, will effectively be
compelled to provide evidence with respect to any and all crimes of which
he may be accused for the rest of his life. Every time new evidence is
discovered from a crime scene, the government will search Kincade's
genetic code to determine whether he has committed the crime - just as the
government might search his house for evidence linking him to the crime
scene despite the fact that the government may never have cause to suspect
him again. Moreover, the maintenance of his DNA will permit a myriad of
other known and unknown uses of the samples, by governmental authorities,
as technology evolves, in violation of his full future expectation of
privacy.
|
| [225] |
In truth, the DNA Act was not enacted to meet the supervisory needs of
the probation system, and no-one seriously suggests that it was. It was
not established to help rehabilitate convicted offenders, and no-one
seriously makes that suggestion either. Finally, it was not enacted to
deter future criminal activity, and no-one seriously suggests that such is
the reason it was adopted. The Act was created to help law enforcement
officials solve unsolved crimes. This case is not about supervising a
group of individuals with reduced expectations of privacy. It is about
whether the government may invade an individual's body and compel him to
surrender sensitive information for inclusion in a permanent centralized
government database in order to further the state's law enforcement
interests.
|
| [226] |
The plurality's determination that the government may collect and
store this information given the "totality of the circumstances,"
dismantles the structural protections that lie at the core of the Fourth
Amendment. We have always required individual suspicion for searches
designed to produce ordinary evidence of criminal wrongdoing. We have
never allowed blanket suspicionless searches to be justified by the need
to investigate and prosecute more efficiently past and future crimes. My
colleagues would abandon the restraints that the special needs doctrine
places on the government's ability to conduct blanket searches. In that
doctrine's place, they would leave us with nothing more than a boundless
test that will inevitably side with the "monumental" law enforcement
interests at stake and with the empty promise that the state will exercise
restraint if the circumstances ever so demand.
|
| [227] |
It is always tempting to grant the government more authority to fight
crime. We all desire more effective law enforcement, less recidivism, and
"closure" for victims of heinous crimes. But that desire does not justify
eviscerating the structural edifices of the Fourth Amendment those
barriers often constitute the only protections against governmental
intrusions into the most intimate details of our lives. DNA evidence
contains such details. I therefore cannot agree that the Act is
constitutional and cannot join in the plurality's enthusiastic approval of
the use of suspicionless searches for law enforcement ends. Nor, of course
can I join in Judge Gould's paradoxical conclusion that the use by law
enforcement officers of compulsorily extracted blood samples as a tool in
the investigation of crimes is not for a law enforcement
purpose.
|
| [228] |
There were valid reasons for the Founders' decision to establish a
preference for probable cause in the Fourth Amendment and for the Court's
decisions to demand some sort of individualized suspicion to support
programmatic searches undertaken for law enforcement purposes. I continue
to believe that, in the absence of a constitutional amendment, those
reasons should guide our decision. See Terry, 392 U.S. at 38-39 (Douglas,
J., dissenting) ("Perhaps such a step is desirable to cope with modern
forms of lawlessness. . . . Until the Fourth Amendment . . . is rewritten,
the person and the effects of the individual are beyond the reach of all
government agencies until there are reasonable grounds to believe (and
probable cause) that a criminal venture has been launched or is about to
be launched.").
|
| [229] |
Finally, no one should take comfort from the fact that today's
decision is well-intentioned - or that it is purportedly limited to
convicted offenders. As Justice Brandeis once wrote,
|
| [230] |
it is also immaterial that the intrusion was in aid of law
enforcement. Experience should teach us to be most on our guard to protect
liberty when the Government's purposes are beneficent. Men born to freedom
are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by
men of zeal, well-meaning but without understanding.
|
| [231] |
Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J.,
dissenting). The erosion of conditional releasees' liberty makes us all
less free.
|
| [232] |
Privacy erodes first at the margins, but once eliminated, its
protections are lost for good, and the resultant damage is rarely, if
ever, undone. Today, the court has opted for comprehensive DNA profiling
of the least protected among us, and in so doing, has jeopardized us all.
I respectfully dissent.
|
| [233] |
KOZINSKI, Circuit Judge, dissenting:
|
| [234] |
New technologies test the judicial conscience. On the one hand, they
hold out the promise of more effective law enforcement, and the hope that
we will be delivered from the scourge of crime. On the other hand, they
often achieve these ends by intruding, in ways never before imaginable,
into the realms protected by the Fourth Amendment. Which is no doubt why
the Supreme Court has told us to be wary of "this power of technology to
shrink the realm of guaranteed privacy." Kyllo v. United States, 533 U.S.
27, 34 (2001).
|
| [235] |
The heat sensor technology at issue in Kyllo was a promising new tool
for law enforcement, except for one small defect: It let the police get
information about what was going on inside people's homes-something the
Fourth Amendment generally prohibits without a warrant. DNA fingerprinting
is another case in point. The good news is that it lets police identify
people far more easily than would be possible using retro technology. The
bad news is that those people could well be us.
|
| [236] |
Once Kincade completes his period of supervised release, he becomes an
ordinary citizen just like everyone else. Having paid his debt to society,
he recovers his full Fourth Amendment rights, and police have no greater
authority to invade his private sphere than anyone else's. The difficult
question is whether the government may exploit Kincade's diminished Fourth
Amendment rights while he is still a probationer to obtain his DNA
signature, so it can use it in investigating thousands of crimes
nationwide, past and future, for the rest of Kincade's life. Displaying an
exuberant faith in the positive power of technology, the plurality opinion
answers this question with a resounding yes, but I remain skeptical.
Stripped of its bells and whistles, the plurality's theory seems to be
this: We have a pretty good idea that people who have committed crimes in
the past are more likely than others to commit crimes in the future. It is
thus very, very, very useful for us to get their DNA fingerprints now so
we can use them later to investigate crimes.
|
| [237] |
But if we accept the legal presumption-not questioned here by
anyone-that once Kincade leaves supervised release he will be just like
everyone else, authorizing the extraction of his DNA now to help solve
crimes later is a huge end run around the Fourth Amendment. Or, to state
it in reverse, if the reason for taking Kincade's DNA while he's on
supervised release is that it will help solve crimes later, it seems
equally justifiable to take his blood after he comes off supervised
release. Ex-probationers are just as likely to commit crimes as people now
on probation, and including them in the CODIS database would surely help
solve even more crimes. Balancing the minor intrusion the plurality sees
from the taking of blood-a mere pin-prick-against the "monumental"
benefits to society, op. at 11469, it is unclear how the balance could be
struck any differently as to ex-probationers than as to current
ones.
|
| [238] |
Which brings us to the people we really need to worry about, namely
you and me. If collecting DNA fingerprints can be justified on the basis
of the plurality's multi-factor, gestalt high-wire act, then it's hard to
see how we can keep the database from expanding to include everybody. Of
course, anyone who already has to give up bodily fluids for alcohol or
drug testing-airline pilots, high school athletes, customs inspectors and
people suspected of driving while intoxicated- would be easy prey under
the mushy multi-factor test. But, with only a little waggling, we can
shoehorn the rest of us in. As the plurality notes, blood is taken from us
from the day we are born pretty much till the day we die, and on many days
in between. What exactly happens to that blood after it leaves our veins?
Most of us don't know or care, presuming (if we consider it at all) that
whatever isn't used for testing is discarded. But what if Congress were to
require medical labs to submit the excess blood for DNA fingerprinting so
it can be included in CODIS?
|
| [239] |
Applying the plurality's balancing analysis, I'm hard pressed to see
how this would violate anyone's Fourth Amendment rights. The benefits
would continue to be huge. The more DNA samples are included in the
database, the better off we are: More guilty parties will be found, more
innocents will be cleared and more unknown crime victims will be
identified. On the other side of the ledger, the costs would be meager. By
glomming onto blood already extracted for other purposes, the government
would have eliminated what the plurality identifies as the most serious
negative factor-the piercing of the skin. Op. at 11465-66. Moreover, it's
hard to say that most of us have any expectation as to what happens to our
blood once it leaves our veins in the doctor's office; we certainly don't
expect it to be returned to us. Arguably, we have no more reasonable
expectation of privacy in blood turned over to third parties and abandoned
than we do in our trash cans or bank records. See California v. Greenwood,
486 U.S. 35, 39-41 (1988) (no reasonable expectation of privacy in
materials left on public street, like garbage); United States v. Miller,
425 U.S. 435, 442-43 (1976) (no reasonable expectation of privacy in
material conveyed to third party, like bank records, even if conveyed in
confidence and for a limited purpose). And without a reasonable
expectation of privacy, there isn't even a "search" for Fourth Amendment
purposes. Kyllo, 533 U.S. at 31-33. Which is why it is important to
recognize that the Fourth Amendment intrusion here is not primarily the
taking of the blood, but seizure of the DNA fingerprint and its inclusion
in a searchable database.
|
| [240] |
The plurality's approach will cut even closer to home as our
techniques for extracting DNA improve and identifying information can more
easily be obtained from urine and saliva, or from hair follicles
inadvertently pulled out during a visit to the barber or hairdresser. As
the plurality points out, op. at 11468-69 n.37, we can't go anywhere or do
much of anything without leaving a bread-crumb trail of identifying DNA
matter. If we have no legitimate expectation of privacy in such bodily
material, what possible impediment can there be to having the government
collect what we leave behind, extract its DNA signature and enhance CODIS
to include everyone? Perhaps my colleagues in the plurality feel
comfortable living in a world where the government can keep track of
everyone's whereabouts, or perhaps they believe it's inevitable given the
dangers of modern life. But I mourn the loss of anonymity such a regime
will bring.
|
| [241] |
This isn't an issue we can leave for another day. Later, when further
expansions of CODIS are proposed, information from the database will have
been credited with solving hundreds or thousands of crimes, and we will
have become inured to the idea that the government is entitled to hold
large databases of DNA fingerprints. This highlights an important aspect
of Fourth Amendment opinions: Not only do they reflect today's values by
giving effect to people's reasonable expectations of privacy, they also
shape future values by changing our experience and altering what we come
to expect from our government. A highly expansive opinion like the
plurality's, one that draws no hard lines and revels in the boon that new
technology will provide to law enforcement, is an engraved invitation to
future expansion. And when that inevitable expansion comes, we will look
to the regime we approved today as the new baseline and say, this too must
be OK because it's just one small step beyond the last thing we approved.
See Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev.
1026, 1077-1114 (2003). My colleagues in the plurality assure us that,
when that day comes, they will stand vigilant and guard the line, but by
then the line-never very clear to begin with-will have shifted. The
fishbowl will look like home.
|
| [242] |
Anyone who doubts that CODIS will expand, prodded by the voracious
appetite of law enforcement, has only to consider the growth of
fingerprint databases. In 1924, when J. Edgar Hoover became head of what
was to become the FBI, the Justice Department's fingerprint files
contained only prints of those who had at some point passed through the
criminal justice system. Hoover, who favored universal fingerprinting,
moved to expand the database and aggressively lobbied local law
enforcement officials to submit prints to the FBI. He took a further step
in 1929 and began fingerprinting all civil servants. The Alien
Registration Act, passed in 1940, eventually delivered over a million
prints to the FBI. See Simon A. Cole, Suspect Identities: A History of
Fingerprinting and Criminal Identification 246-47 (2001). Today, the FBI's
Integrated Automated Fingerprint Identification System contains the
fingerprints of over 47 million people, including prints "acquired related
to a background check for employment, licensing, and other non-criminal
justice purposes" and "submitted voluntarily by state, local, and federal
law enforcement agencies." U.S. Dep't of Justice, Fed. Bureau of
Investigation, IAFIS, at http://www.fbi.gov/hq/cjisd/iafis.htm (last
visited Aug. 4, 2004). Several states require fingerprints of all drivers'
license applicants. See, e.g., Cal. Veh. Code § 12517.3(a)(1); Colo. Rev.
Stat. § 42-2-107(2)(a); Tex. Transp. Code § 521.142(b)(1). California all
by itself has the prints of over 22 million drivers' license holders on
file, see Dep't of Motor Vehicles, Driver Licenses Outstanding by County
(2003), at http://www.dmv.ca.gov/about/profile/ dl_outs_by_county .htm, as
well as the prints of lawyers, Cal. Bus. & Prof. Code § 6054, and
certain welfare recipients, Cal. Welf. & Inst. Code § 10830(b)(1). See
also Nat'l Conf. of State Legislatures, Biometrics Implementation
Legislation by State (2002), at http://www.ncsl.org/programs/esnr/
licenseD.htm. Not all these fingerprint databases are currently in
searchable form, but given our improving ability to store biometric
identifiers electronically, it's only a matter of time.
|
| [243] |
Because the great expansion in fingerprinting came before the modern
era of Fourth Amendment jurisprudence ushered in by Katz v. United States,
389 U.S. 347 (1967), it proceeded unchecked by any judicial balancing
against the personal right to privacy. As a consequence, we have become
accustomed to having our fingerprints on file in some government database.
The suggestion that law enforcement agencies, including the FBI, must
destroy the fingerprints of those who were wrongfully arrested and booked,
and were later released, would today be greeted by reactions ranging from
apathy to a disdainful snigger. Why? Because we have come to accept that
people-even totally innocent people-have no legitimate expectation of
privacy in their fingerprints, and that's that.
|
| [244] |
Judge Gould commendably recognizes the troubling implications of using
Kincade's status today to extract his DNA for use after he ceases to be on
supervised release, but leaves for another day whether Kincade might be
entitled to have his DNA removed from CODIS once his status changes. Had
the government sought to justify the extraction of the DNA as a measure
for ensuring Kincade's compliance with the terms of his supervised
release, I would be tempted to agree with Judge Gould. But the government
did no such thing. Kincade's probation officer did not seek to have
Kincade's DNA extracted to better supervise him-blood extraction for DNA
typing purposes was not an explicit probation condition, nor was there any
showing that the probation officer had determined that extracting
Kincade's blood and typing his DNA was necessary or desirable to improve
his chances of successfully completing probation. The record clearly shows
that the probation officer ordered Kincade to submit a blood sample only
to comply with the DNA Act. The government thus seeks to justify the blood
extraction precisely so his DNA will be available in the CODIS database
for the rest of his life.
|
| [245] |
The plurality enthusiastically accepts this justification and thus has
already answered the question Judge Gould would keep in reserve. As a
practical matter, moreover, the chance that Kincade could have his DNA
removed from the CODIS database once he completes his supervised release
is about the same as the chance that someone arrested and fingerprinted,
but eventually found innocent, could force the FBI to delete his
fingerprints from its database, namely nil. While I sympathize with Judge
Gould's reluctance to speak on an issue that might be better resolved
later, on this record we have no choice: The extraction of Kincade's blood
for DNA typing must be justified on the ambitious grounds advanced by the
government and accepted by the plurality, or not at all. For the reasons
eloquently expressed by Judge Reinhardt in his dissent, and those stated
above, I cannot agree that the suspicionless extraction of blood to
include Kincade's DNA in the CODIS database can be upheld under the Fourth
Amendment. The time to put the cork back in the brass bottle is nowbefore
the genie escapes.
|
| [246] |
HAWKINS, Circuit Judge, dissenting:
|
| [247] |
We are asked whether the forced extraction of blood from certain
convicted felons, as a condition of supervised release and for the purpose
of retention without time limit in a national DNA database, violates the
Fourth Amendment. My colleagues have written exhaustively and well on the
subject. My purpose is not necessarily to replow their ground, but to set
forth my own thoughts on this difficult question.
|
| [248] |
Asking convicted felons to provide proof of identity, whether by
fingerprint or DNA sample, should be viewed, as Judges Gould and Reinhardt
both persuasively argue, through the lens of the "special needs" doctrine.
In the abstract, I have no quarrel with the notion that this could be a
reasonable exercise of government power under contemporary Fourth
Amendment standards. The forcible extraction of blood, however, not
mandated by Congressional command, but by dictates of law enforcement
efficiency, is different. Beginning with Schmerber v. California, 384 U.S.
757 (1966), the Supreme Court has recognized that while a lawfully
arrested person may have lessened expectations of privacy and be subject
to other searches incident to arrest, no one is required to submit to
"intrusions beyond the body's surface" absent a "clear indication" that
the desired evidence would be found by such a search. Id. at 769-70; see
also Skinner v. Ry. Labor Executives' Ass'n., 489 U.S. 602, 616 (1989)
("[I]t is obvious that this physical intrusion, penetrating beneath the
skin, infringes an expectation of privacy that society is prepared to
recognize as reasonable."). While convicted felons certainly have lessened
expectations of privacy, the legitimate governmental needs identified by
the majority and by Judge Gould simply do not, in my view, justify this
particular type of intrusive, suspicionless search.
|
| [249] |
Judge Gould properly questions whether it is reasonable to retain the
sample beyond the period of supervised release - in perpetuity, according
to this record. I agree with Judge Reinhardt, however, that this case does
present that issue. Although Kincade is currently on supervised release,
we cannot ignore that the data obtained from him while in that status will
be stored and used long beyond that period of time. This use will not
serve the special needs identified by Judge Gould, but the "general
interest in law enforcement" that the Court has held cannot justify
suspicionless searches. See, e.g., Ferguson v. City of Charleston, 532
U.S. 67, 79 (2001).*fn74
|
| [250] |
Enforcing the Constitution is neither a popularity contest nor a
polling exercise. The Bill of Rights restrains government power and, along
with it, law enforcement efficiency. In a world unrestrained by our Fourth
Amendment, every citizen, convicted or not, might be forced to supply a
DNA sample. More crimes would undoubtedly be solved, just as would be the
case if there were no warrant requirement. But that is not the world that
Mr. Madison and the First Congress created for us. I sincerely hope that
the drastic consequences Judge Reinhardt projects will not come to pass. I
do, however, agree that the DNA Act as currently implemented - forcible
extraction of blood and retention without limitation - violates the Fourth
Amendment. Therefore, I respectfully dissent.
|
| |
|
| |
Opinion Footnotes |
| |
|
| [251] |
*fn1 As enumerated by the initial terms of the DNA Act,
these "qualifying federal offenses" included murder, voluntary
manslaughter, aggravated assault, sexual abuse, child abuse, kidnapping,
robbery, burglary, arson, and any attempt or conspiracy to commit such
crimes. See 42 U.S.C. § 14135a(d)(1). With passage of the PATRIOT Act,
Pub. L. No. 107-56, § 503, 115 Stat. 272, 364 (2001), acts of terrorism
(as defined in 18 U.S.C. 2332b(g)(5)(B)) and additional crimes of violence
(as defined in 18 U.S.C. § 16) have been added to the ranks of qualifying
federal offenses. See 42 U.S.C. § 14135a(d)(2). A complete list of
qualifying federal offenses can be found at 28 C.F.R. § 28.2. Although the
federal offender provisions of the DNA Act are most relevant here, we note
that the Act reaches beyond the federal arena. Subsidiary provisions
provide for collection and storage of DNA information from offenders
subject to the jurisdiction of the District of Columbia, 42 U.S.C. §
14135b, and the Armed Forces, 10 U.S.C. § 1565. The Act also appropriates
$170 million to support state efforts to collect and to store DNA profiles
from state offenders and crime scene evidence. 42 U.S.C. §§ 14135(a) &
(j). Partially as a result, every state in the Union now operates a DNA
collection program. A regularly-updated summary of state DNA legislation
can be found at .
|
| [252] |
*fn2 Federal "parole" was largely abolished and replaced
with "supervised release" by the Sentencing Reform Act of 1984, Pub. L.
No. 98-473, § 212(a)(2), 98 Stat. 1837, 1999 (1984). See 18 U.S.C. § 3583;
see also Johnson v. United States, 529 U.S. 694, 696-97 (2000) (citing
GozlonPeretz v. United States, 498 U.S. 395, 400-01 (1991)). However,
because ex post facto concerns would arise if the statutory framework
governing supervised release were retroactively applied to persons
sentenced under the prior sentencing-and-parole scheme, cf. United States
v. Paskow, 11 F.3d 873, 883 (1993), Congress has thrice extended the
federal parole system for individuals sentenced for offenses committed
before November 1, 1987. See 18 U.S.C. § 3551 note (documenting
extensions). The primary difference between these types of conditional
release is that the former follows a term of imprisonment rather than
shortening one. Our cases have not distinguished between parolees,
probationers, and supervised releasees for Fourth Amendment purposes.
United States v. Harper, 928 F.2d 894, 896 n.1 (9th Cir. 1991) (Kozinski,
J.); see also Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987); Green v.
Berge, 354 F.3d 675, 680 (7th Cir. 2004) (Easterbrook, J., concurring);
United States v. Hill, 967 F.2d 902, 909 (3d Cir. 1992); cf. United States
v. Woodrup, 86 F.3d 359, 361-62 & n.4 (4th Cir. 1996) (analogizing
parole, probation, and supervised release); United States v. Kills Enemy,
3 F.3d 1201, 1203 (8th Cir. 1993) (treating parole and probation search
conditions alike and applying them to pre-sentence release conditions);
United States v. Marmolejo, 915 F.2d 981, 982 (5th Cir. 1990) (describing
revocations of parole, probation, and supervised release as
"constitutionally indistinguishable"); but see United States v. Crawford,
372 F.3d 1048, 1076-1077 (9th Cir. 2004) (en banc) (Kleinfeld, J.,
concurring) (proposing a distinction).
|
| [253] |
*fn3 Accordingly, qualified federal offenders on probation
or supervised release who refuse to submit to DNA sampling under the Act
also breach two mandatory conditions of their probation or parole: that
they shall not commit an additional federal, state, or local offense, see
18 U.S.C. §§ 3563(a)(1) & 3583(d); see also U.S.S.G. §§ 5B1.3(a)(1)
& 5D1.3(a)(1), and, of course, that they submit to DNA sampling. See
18 U.S.C. §§ 3563(a)(9) & 3583(d); see also U.S.S.G. §§ 5B1.3(a)(10)
& 5D1.3(a)(8). In turn, violation of the terms of one's probation or
supervised release authorizes the sentencing court to revoke or to extend
the conditions of his or her release. See 18 U.S.C. §§ 3564(d)-(e),
3565(a) & 3583(e)(2)-(3).
|
| [254] |
*fn4 While this common figurative phrase conjures a useful
image of DNA profiling to the extent that it evokes the biological
uniqueness of human beings, it is technically misleading in the present
context: DNA profiling for these purposes records non-genic variations
coded into the building blocks of life. See Nat'l Comm. for the Future of
DNA Evidence, Nat'l Inst. of Justice, U.S. Dep't of Justice, The Future of
Forensic DNA Testing 35, Nov. 2000, available at
http://www.ncjrs.org/pdffiles1/nij/183697.pdf (last visited May 14, 2004)
[hereinafter Future of Forensic DNA Testing].
|
| [255] |
*fn5 The term allele often is used to refer to a genic
variant responsible for producing a particular trait. The National
Commission on the Future of DNA Evidence provides the following
illustrative example: [A] specific allele of a particular gene is
responsible for the enzyme that converts the amino acid phenylalanine into
tyrosine. When this enzyme is missing or abnormal, the child develops the
disease, phenylketonuria, or PKU. The result is severe mental retardation
unless the child is treated; happily, with a specific diet the child
develops normally. A child will develop PKU only if both representatives
of the appropriate chromosome pair carry the abnormal allele. If there is
only one PKU allele and the other is normal, the child will be normal; the
amount of enzyme produced by a single normal allele is enough. Future of
Forensic DNA Testing 11. Because nearly 97 percent of DNA is non-genic,
and because those "regions show the same genetic variability that genes
do, in fact usually more[,] . . . the words commonly used for describing
genes (e.g., allele . . .) are carried over to [non-genic] DNA regions . .
. ." Id. at 12.
|
| [256] |
*fn6 Recent studies have begun to question the notion that
junk DNA does not contain useful genetic programming material. W. Wayt
Gibbs, The Unseen Genome: Gems Among the Junk, Sci. Am., Nov. 2003, at
29.
|
| [257] |
*fn7 In addition, because DNA characteristics are
transmitted inter-generationally, it is "quite [possible to] identify a
person who is a relative of the person contributing the [DNA] sample." Id.
at 35. Indeed, shortly after this en banc case was taken under submission,
police in Grand Rapids, Michigan discovered that DNA evidence taken from a
rape kit matched that of an incarcerated prisoner previously convicted of
sexual assault-only to discover that the apparent DNA contributor had a
twin brother who also was previously convicted of sexual assault and who
was present in the area of the rape in question at the time of its
commission. Assoc. Press, DNA of Suspect's Twin Key in Rape Case, May 14,
2004. Authorities are currently seeking to determine whether the twins are
identical, in which case their DNA would be indistinguishable, or
fraternal, in which case police could clear the late-discovered twin.
Id.
|
| [258] |
*fn8 Beyond the STR-generated DNA profile, CODIS records
contain only an identifier for the agency that provided the DNA sample, a
specimen identification number, and the name of the personnel associated
with the analysis. H.R. Rep. No. 106-900(I) at *27.
|
| [259] |
*fn9 Currently, 49 states, the U.S. Army, the Bureau, and
Puerto Rico share DNA profiles through CODIS. The lone exception among the
states is Mississippi. See Federal Bureau of Investigation, NDIS
Participants, available at http://www.fbi.gov/hq/lab/codis/partstates.htm
(last visited May 11, 2004). One noteworthy consequence of linking these
independently-developed databases is that CODIS currently stores DNA
profiles taken from individuals who have been convicted of a substantially
broader array of offenses than the qualifying federal offenses enumerated
in 42 U.S.C. § 14135a(d) and 28 C.F.R. § 28.2. Indeed, many state programs
reach well beyond the federal model-some collecting information from
non-violent drug offenders, and others requiring samples from persons
convicted of simple misdemeanors. At least three states-Louisiana, Texas,
and Virginia-currently collect DNA samples from certain arrestees, and a
pending California initiative would require the immediate, prospective
collection of DNA information from adults arrested for enumerated
felonies, and within five years of enactment, any felony. La. Rev. Stat. §
15:602 (2004); Tex. Gov't Code § 411.1471(a)(2) (2004); Va. Code Ann. §
19.2-310.2:1 (2004); see also State of Cal., Office of the Attorney Gen.,
Active Measures, available at http://www.caag.state.ca.us/
initiatives/pdf/sa200 3rf0065.pdf (last visited May 11, 2004). In light of
these widely varying measures, it is therefore particularly important to
observe that we deal here solely with the legality of requiring compulsory
DNA profiling of qualified federal offenders on conditional release. We
express no opinion on the authority of the federal government or the
states to pass less narrowly tailored legislation. Cf. Green, 354 F.3d at
679-81 (Easterbrook, J., concurring) (explaining that the DNA profiling of
convicted offenders in custody and on conditional release "does not
present the question whether DNA could be collected forcibly from the
general population").
|
| [260] |
*fn10 Based on apparent suspicions that he had been
involved in illegal activity, Kincade was discharged from the treatment
program on October 19, 2001. But subsequent investigation by his probation
officer revealed no evidence that Kincade had actually engaged in any
illegal conduct, and the district court approved the Officer's
recommendation that no action be taken.
|
| [261] |
*fn11 Both 18 U.S.C. § 2113 and 18 U.S.C. § 924 are
qualifying federal offenses for DNA Act purposes. See C.F.R. §
28.2(a).
|
| [262] |
*fn12 Therefore, we need not address the free exercise
issues potentially raised by an application of the DNA Act to persons
holding sincere religious objections. Likewise, because Kincade makes no
such claim-and although the answer seems fairly obvious to us-we need not
address whether use of CODIS "to repress dissent or, quite literally, to
eliminate political opposition," post at 11487, or "to monitor,
intimidate, and incarcerate political opponents and disfavored
minorities," post at 11487, would comport with other constitutional
limitations on governmental authority, such as the First, Fifth, and
Fourteenth Amendments.
|
| [263] |
*fn13 On appeal, Kincade raises only Fourth Amendment
objections to the Act.
|
| [264] |
*fn14 Our review of a federal statute's constitutionality
is de novo. See, e.g., United States v. McCoy, 323 F.3d 1114, 1117 (9th
Cir. 2003); United States v. Cortes, 299 F.3d 1030, 1032 (9th Cir.
2002).
|
| [265] |
*fn15 The compulsory extraction of blood for DNA profiling
unquestionably implicates the right to personal security embodied in the
Fourth Amendment, and thus constitutes a "search" within the meaning of
the Constitution. See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S.
602, 616 (1987) ("We have long recognized that a compelled intrusion into
the body for blood to be analyzed for alcohol content must be deemed a
Fourth Amendment search.") (quotation omitted); see also Winston v. Lee,
470 U.S. 753, 760 (1985); Schmerber v. California, 384 U.S. 757, 767-68
(1966). Of course, the fact that such extraction constitutes a search is
hardly dispositive, as "the Fourth Amendment does not proscribe all
searches and seizures . . . ." Skinner, 489 U.S. at 619.
|
| [266] |
*fn16 See United States v. Ramsey, 431 U.S. 606, 616
(1977) ("[S]earches made at the border, pursuant to the longstanding right
of the sovereign to protect itself by stopping and examining persons and
property crossing into this country, are reasonable simply by virtue of
the fact that they occur at the border."); see also United States v.
Flores-Montano, 540 U.S. __, 124 S. Ct. 1582 (2004); United States v.
Montoya de Hernandez, 473 U.S. 531 (1985).
|
| [267] |
*fn17 See Hudson v. Palmer, 468 U.S. 517, 526 (1983)
("[S]ociety is not prepared to recognize as legitimate any subjective
expectation of privacy that a prisoner might have in his prison cell . . .
. [A]ccordingly, the Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison
cell.").
|
| [268] |
*fn18 See, e.g., Chandler v. Miller, 520 U.S. 305, 323
(1997) ("[W]here the risk to public safety is substantial and real,
blanket suspicionless searches calibrated to the risk may rank as
'reasonable'-for example, searches now routine at airports and at
entrances to courts and other official buildings."); see also United
States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974) ("When the risk is the
jeopardy to hundreds of human lives and millions of dollars of property
inherent in the pirating or blowing up of a large airplane, the danger
alone meets the test of reasonableness, so long as the search is conducted
in good faith for the purpose of preventing hijacking or like damage and
with reasonable scope and the passenger has been given advance notice of
his liability to such a search so that he can avoid it by choosing not to
travel by air.") (quoting United States v. Bell, 464 F.2d 667, 675 (2d
Cir. 1972) (Friendly, C.J., concurring)).
|
| [269] |
*fn19 Compare City of Indianapolis v. Edmond, 531 U.S. 32,
37 (2000) ("We have also allowed searches for certain administrative
purposes without particularized suspicion of misconduct. . . ."), with New
York v. Burger, 482 U.S. 691, 702 (1987) (grouping inspections of
closely-regulated businesses with "other situations of 'special need' ")
(quoting New Jersey v. T. L. O., 469 U.S. 325, 353 (1985) (Blackmun, J.,
concurring)).
|
| [270] |
*fn20 At various points, Griffin explained that the focus
of conditional release is controlling criminal recidivism-that is, the
ordinary commission of ordinary crimes by ordinary criminals. See, e.g.,
483 U.S. at 875 ("[R]estrictions are meant to assure that the probation
serves as a period of genuine rehabilitation and that the community is not
harmed by the probationer's being at large."); id. ("[M]ore intensive
supervision can reduce recidivism . . . ." ); id. at 876 ("[T]he delay
inherent in obtaining a warrant would make it more difficult for probation
officials to respond quickly to evidence of misconduct. . . ."); id. at
878 ("[A] probable-cause requirement would reduce the deterrent effect of
the supervisory arrangement. The probationer would be assured that so long
as his illegal (and perhaps socially dangerous) activities were
sufficiently concealed as to give rise to no more than reasonable
suspicion, they would go undetected and uncorrected."); id. at 880 ("[T]he
probationer is in need of rehabilitation and is more likely than the
ordinary citizen to violate the law . . . .").
|
| [271] |
*fn21 In a footnote, the Court explained: "We italicize
those words lest our reasoning be misunderstood. In none of our previous
special needs cases have we upheld the collection of evidence for criminal
law enforcement purposes. Our essential point is [that] the extensive
entanglement of law enforcement cannot be justified by reference to
legitimate needs." Id. at 83 n.20 (citations omitted).
|
| [272] |
*fn22 As a matter of fact, Knights does not even mention
Ferguson, and it references Edmond only once-and purely in passing. Id. at
122.
|
| [273] |
*fn23 Judge Reinhardt's dissent claims we confuse the
result of a special needs analysis with its trigger: "The departure from
the warrant-and-probable cause regime of the Fourth Amendment is not what
triggers a special needs analysis; that departure is the result of a
special needs analysis in which the Court finds a valid programmatic
purpose to the search regime-a purpose apart from law enforcement needs."
Post at 11513 n.23. The problem with this view is that courts look for a
special need apart from law enforcement needs only after the government
has executed some challenged search without first obtaining a warrant
supported by probable cause. The Court's resort to special needs analysis
in such cases is the product of that failure, and it has applied such
analysis even in warrantless search cases where there was reasonable
suspicion, like Griffin and T.L.O. Contrary to Judge Reinhardt's charge,
this understanding is compatible with the Court's decisions in Maryland v.
Buie, 494 U.S. 325 (1990) ("protective sweeps"), Chimel, 395 U.S. at 752
(searches incident to arrest), and Terry, 392 U.S. at 1 (pat-down
searches). Cf. post at 11513 n.23. As we already have explained, the Court
has justified each of those searches with reference to non-law enforcement
goals-primarily officer safety. See supra at 11440-42; see also Buie, 494
U.S. at 327 ("A 'protective sweep' is a quick and limited search of
premises, incident to an arrest and conducted to protect the safety of
police officers or others.") (empha sis added). Given its eagerness to
eschew "manufactur[ing] neat categories with clever names," post at 11496,
and preference for grouping all warrantless searches "into one large
category of cases involving 'special needs,' " id., it is odd that Judge
Reinhardt's dissent does not recognize that these searches-which generally
are conducted with some level of suspicion, but ultimately are justified
by reference to a non-law enforcement goal-are easily reconciled with our
understanding of the special needs doctrine.
|
| [274] |
*fn24 We recently were presented with an opportunity to
address the question left open by Knights. At issue in United States v.
Crawford, 372 F.3d 1048 (9th Cir. 2004) (en banc), was the
constitutionality of a suspicionless search conducted pursuant to a
standard California probation and parole term almost identical to the one
at issue in Knights. However, we did not resolve whether the search was
constitutional. Over the objection of five judges, see id. at 1062 (Trott,
J., concurring), we instead "assume[d] for purposes of our decision, but
need[ed] not and d[id] not decide, that the parole search was unlawful,"
id. at 1053 (majority opinion), and resolved the case based solely on an
attenuation analysis pursuant to New York v. Harris, 495 U.S. 14 (1990).
Id. at 1054-59.
|
| [275] |
*fn25 To our knowledge, only two judges-besides, of
course, the majority of the three-judge panel that first heard this case,
see United States v. Kincade, 345 F.3d 1095, vacated and reh'g en banc
granted, 354 F.3d 1000 (9th Cir. 2003)-have invalidated DNA collection
statutes. United States v. Miles, 228 F. Supp. 2d 1130, 1135-40 (E.D. Cal.
2002); Maryland v. Raines, Montgomery County Circuit Court Criminal Case
No. 98303 (January 28, 2004), summarily vacated with published opinion to
follow, __ A.2d __, 2004 WL 1558114 (Md. July 13, 2004).
|
| [276] |
*fn26 In his Ferguson dissent, Justice Scalia cited
Griffin (a decision he authored)-pointedly observing that the search in
that case was spurred by information provided to Griffin's probation
officer by the police and that the probation officers who conducted the
search of Griffin's residence were accompanied by police officers-in
support of the proposition that "special-needs doctrine was developed, and
is ordinarily employed, precisely to enable searches by law enforcement
officials who, of course, ordinarily have a law enforcement objective."
532 U.S. at 100 (Scalia, J., dissenting) (emphasis in original). The
Ferguson majority's identification of a constitutionally significant
distinction between the expectations of privacy enjoyed by probationers
and those of ordinary citizens was thus the crucial feature of its
response to Justice Scalia's claim-that the presence of a law enforcement
objective is not fatal to a search assessed under a special needs
analysis. Compare id. at 79 n.15 with id. at 100-02 (Scalia, J.,
dissenting). Judge Reinhardt's dissent, post at 11507 n.20, misreads this
exchange between the Ferguson majority and dissent-in no small part
because it overlooks the facts of Griffin, where (to reiterate), police
had initiated contact with the probation office, encouraged probation
officers to search Griffin's residence, accompanied them during the
search, and processed the evidence produced by the search, where it then
was used not merely to revoke Griffin's probation, but was turned over to
the district attorney's office in order to prosecute Griffin on new
charges. See Griffin, 532 U.S. at 870-72. Perhaps we are missing
something, but this seems to be precisely the kind of "entangl[ing]
probation officers with normal law enforcement officers in a collective
effort to investigate, solve, and prosecute crimes" that Judge Reinhardt's
dissent claims is forbidden by Ferguson. Post at 11507 n.20. Yet the whole
point of Ferguson's having explicitly distinguished Griffin was to
harmonize the two cases-not overrule the latter: "Griffin is properly read
as limited . . . ." Ferguson, 532 U.S. at 79 n.15.
|
| [277] |
*fn27 A substantial portion of Judge Reinhardt's dissent
is devoted simply to establishing that the Supreme Court has never
expressly authorized suspicionless, arguably law enforcement-oriented
searches of conditional releasees. As we have demonstrated, the Court also
has expressly declined to condemn such searches. This common
occurrence-the Supreme Court's not yet having squarely resolved a legal
question-is why we have a case to decide, and we are heartened by Judge
Reinhardt's recognition that there is a good reason why we are sitting en
banc. To the extent Judge Reinhardt's dissent's refrain of "never," post
at 11479, 11497,11499, 11511, 11525, is intended to support its challenge
to the DNA Act's constitutionality, we note again that the Supreme Court
rejected that peculiar logic in Knights-while reversing, incidentally, a
decision Judge Reinhardt had joined, see United States v. Knights, 219
F.3d 1138 (9th Cir. 2000). See supra at 11450-51 (discussing and quoting
Knights, 534 U.S. at 117-18). In the spirit of Knights, we note that Judge
Reinhardt's suggestion-that the Court's failure as yet explicitly to
sanction suspicion-less searches of conditional releasees somehow
implicitly holds such searches unconstitutional-is as logically dubious as
it is contrary to Knights's express statement that the Court needed "not
decide whether the probation condition so diminished, or completely
eliminated, Knights's reasonable expectation of privacy . . . that a
search by a law enforcement officer without any individualized suspicion
would have satisfied the reasonableness requirement of the Fourth
Amendment." Id. at 120 n.6.
|
| [278] |
*fn28 In Morrissey v. Brewer, the Supreme Court observed:
Typically, parolees are forbidden to use liquor or to have associa tions
or correspondence with certain categories of undesirable persons.
Typically, also they must seek permission from their parole officers
before engaging in specified activities, such as changing employment or
living quarters, marrying, acquiring or operating a motor vehicle,
traveling outside the community, and incurring substantial indebtedness.
Additionally, parolees must regularly report to the parole officer to whom
they are assigned and sometimes they must make periodic written reports of
their activities. 408 U.S. 471, 478 (1972) (citing Arluke, A Summary of
Parole RulesThirteen Years Later, 15 Crime & Delinq. 267, 272-273
(1969)). More contemporary parole and probation restrictions can be found
in U.S.S.G. §§ 5B1.3 & 5D1.3. Beyond these restrictions, parolees and
probationers convicted of serious crimes are denied the right to vote by
most states. See The Sentencing Project, Felony Disenfranchisement Laws in
the United States 1, 3, available at
http://www.sentencingproject.org/pdfs/1046.pdf (last visited May 24, 2004)
(noting that 31 states deny the franchise to felons on probation and that
35 states deny the franchise to felons on parole). In addition, their
Second Amendment rights are severely limited. See, e.g., 18 U.S.C. §
922(g)(1) ("It shall be unlawful for any person who has been convicted in
any court of, a crime punishable by imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.") (enumeration omitted).
|
| [279] |
*fn29 We also note, as Judge Trott has, that conditional
releasees remain entitled to other basic protections: Should the manner in
which such a search or seizure [i]s conducted shock the conscience of our
community's sense of decency and fairness, or [be] so brutal and offensive
that it d[oes] not comport with traditional ideas of fair play and
decency, then the exclusionary rule [and] 28 U.S.C. § 1983 would provide
both remedy and redress. Id. at 1072 (quotations and enumeration
omitted).
|
| [280] |
*fn30 But see supra at 10 n.9.
|
| [281] |
*fn31 Indeed, our cases already recognize such
distinctions. As we noted in Rise: The gathering of fingerprint evidence
from "free persons" constitutes a sufficiently significant interference
with individual expectations of privacy that law enforcement officials are
required to demonstrate that they have probable cause, or at least an
articulable suspicion, to believe that the person committed a criminal
offense and that the fingerprinting will establish or negate the person's
connection to the offense. Nevertheless, everyday "booking" procedures
routinely require even the merely accused to provide fingerprint
identification, regardless of whether investigation of the crime involves
fingerprint evidence. Thus, in the fingerprinting context, there exists a
constitutionally significant distinction between the gathering of
fingerprints from free persons to determine their guilt of an unsolved
criminal offense and the gathering of fingerprints for identification
purposes from persons within the lawful custody of the state. Rise, 59
F.3d at 1559-60 (citations and parentheticals omitted). Of course, the
distinction Rise identified is even greater in this case, as the DNA Act
implicates only the rights of convicted felons-not "free persons or even
mere arrestees." Id. at 1560.
|
| [282] |
*fn32 Kincade's response to this argument-that virtually
all free persons have been required to give up evidence of their identity
at some point in time, yet may still legitimately claim exemption from
compulsory DNA testing-misses the mark. Those who have suffered a lawful
conviction lose an interest in their identity to a degree well-recognized
as sufficient to entitle the government permanently to maintain a
verifiable record of their identity; not merely sporadically to demand its
production under independently lawful conditions.
|
| [283] |
*fn33 Amicus Public Defender for the District of Columbia,
for instance, starkly warns that the government's storage of samples
allows it to "retain[ ] the personal medical information of thousands of
its citizens, potentially retaining access to those citizens' biological
secrets for however long, and to whatever end, state authorities see fit."
Amicus Protection & Advocacy, Inc., cautions "it is inevitable that as
technology advances, at some point, [DNA samples] will be used for other
purposes without the consent or knowledge of the individual tested." And
amicus Electronic Privacy Information Center predicts that "soon, if not
already, scientists will request access to what would serve as [a]
pre-existing goldmine of DNA data for their research."
|
| [284] |
*fn34 See 42 U.S.C. §§ 14132(b)(3) (strictly limiting the
permissible uses of DNA profiles and stored samples) & 14135e
(providing criminal penalties for those who improperly disclose or receive
DNA profiles or stored samples).
|
| [285] |
*fn35 In particular, we pause to note here that we express
no opinion on the legality-constitutional or otherwise-of the so-called
"DNA dragnets" cited by Kincade, his aligned amici, and Judge Reinhardt's
dissent.
|
| [286] |
*fn36 Beyond these factors, we note that conditional
releasees are clearly informed of the condition requiring them to submit
to compulsory DNA profiling, thus further reducing any expectation of
privacy they otherwise may enjoy and further minimizing the intrusiveness
of the search. See Knights, 534 U.S. at 119-20 ("The probation order
clearly expressed the search condition and Knights was unambiguously
informed of it. The probation condition thus significantly diminished
Knights' reasonable expectation of privacy.").
|
| [287] |
*fn37 Kincade argues that the deterrent theory of DNA
profiling rests on a logical fallacy: that potential criminals will be
thinking seriously enough about the implications of DNA profiling for
their actions that they might be deterred from committing a crime, but not
thinking seriously enough "to realize that they are safe as long as they
avoid leaving DNA evidence at the scene." In fact, he claims, the
deterrent theory is especially "far fetched" because recidivists'
knowledge that the authorities have their fingerprints does not seem to
deter them from committing additional crimes. The problem with this
suggestion is that, unlike fingerprint evidence (which can be effectively
masked by wearing gloves), there is no simple way to avoid leaving DNA
evidence at the scene of a crime. Just as DNA permeates blood, semen, and
saliva, it is recoverable from hair and epidermal cells-which even the
most sophisticated criminals cannot help but leave behind. Techniques
first developed in Britain have allowed scientists to generate DNA
profiles from just 30-50 cells' worth of genetic material, and a new crime
lab planned for New York City expects to generate profiles culled from as
little as 6 cells' worth of genetic material collected at the scene of
nearly every crime committed in the city-including all-too-common
non-violent property offenses like home burglaries and auto thefts. See
Shaila K. Dewan, As Police Extend Use of DNA, a Smudge Could Trap a Thief,
N.Y. Times, May 26, 2004.
|
| [288] |
*fn38 We might further observe that the CODIS database can
help absolve the innocent just as easily as it can inculpate the guilty.
For while it undoubtedly is true that the wrongly-accused can voluntarily
submit to DNA testing should the need arise, use of CODIS promptly clears
thousands of potential suspects-thereby preventing them from ever being
put in that position, and "advancing the overwhelming public interest in
prosecuting crimes accurately," Rise, 59 F.3d at 1561 (emphasis in
original), and expeditiously.
|
| [289] |
*fn39 We note that the universal application of DNA
profiling to qualified federal offenders precludes any claim that any
particular searches carried out pursuant to the Act are arbitrary,
capricious, or harassing. See supra at 11462-63; see also Crawford, 372
F.3d at 1072 (Trott, J., concurring). As we recognized in Rise, this is a
case in which "the evenhandedness of [the] statute contributes to its
reasonableness," 59 F.3d at 1561, "by ensuring that blood extractions will
not be ordered randomly or for illegitimate purposes." Id. at
1562.
|
| [290] |
*fn40 In Knights, the Supreme Court left open whether a
suspicionless search of a parolee was reasonable under the Fourth
Amendment's totality of the circumstances analysis. Knights, 534 U.S. at
120 n.6.
|
| [291] |
*fn41 Judge Reinhardt in dissent at footnote 17 argues
that even if deterrence of supervised releasees is the ultimate goal, the
immediate objective of the search is to get evidence of past crime. I do
not agree. Increasing the likelihood of solving future crime, a key
purpose of the DNA Act, serves a deterrence goal at the heart of
supervised release. The DNA Act was made applicable to those on supervised
release, as opposed to the public at large, demonstrating a Congressional
intent to ensure successful rehabilitation through deterrence. I do not
grasp at a "special needs" straw to justify the search of Kincade; more
precisely, I recognize the special need of super vised release that
Congress has identified and that the Supreme Court has approved. Judge
Reinhardt, with an advocate's flair, reads too much into the point I made,
which he quotes, in my article co-authored with Dr. Simon Stern, entitled
Catastrophic Threats and the Fourth Amendment, 77 S. Cal. L. Rev. 777, 814
& n.160 (2004). That article takes a flexible approach to special
needs doctrine that I think wholly consistent with my analysis here. While
we there noted that the specific deterrence that indirectly arises from
the prosecution of an ordinary criminal is not the main aim of a
prosecution, our point there has no bearing on determining the controlling
purposes of the DNA Act. The DNA Act applies only after a person has been
prosecuted. Thus, unlike a prosecution, where the main goal is to
vindicate the state's interest in law enforcement, DNA profiling a person
on supervised release in my view is best seen as serving a different main
goal. That goal, as I see it, is rehabilitation through deterrence. Judge
Reinhardt in his dissent also misses the mark in his all-or-nothing
approach to the DNA Act in footnote 19. Because circumstances that arise
when a releasee has completed supervised release and is no longer in the
criminal justice system are not now before us, we cannot definitively
discuss the legality of the DNA Act beyond its immediate application to
Kincade in the case now presented. Indeed, outside of the First Amendment,
we do not lightly entertain facial challenges to Congressional acts. See
Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 266 U.S. 217 (1912)
(generally precluding consideration of a statute's constitutionality as
applied to the facts of other cases); Richard H. Fallon, Jr. et al., Hart
and Wechsler's The Federal Courts and the Federal System 180-84 (5th ed.
2003) (noting that the Supreme Court generally refuses to adjudicate
facial challenges). The dissent errs by focusing overmuch on facts not
here presented.
|
| [292] |
*fn42 Fingerprints, of course, are routinely maintained in
law enforcement files once taken, and perhaps this is an arguable analogy
for DNA databases. But, unlike fingerprints, DNA stores and reveals
massive amounts of personal, private data about that individual, and the
advance of science promises to make stored DNA only more revealing in
time. Like DNA, a fingerprint identifies a person, but unlike DNA, a
fingerprint says nothing about the person's health, their propensity for
particular disease, their race and gender characteristics, and perhaps
even their propensity for certain conduct.
|
| [293] |
*fn43 A similar issue might be raised by former soldiers
who had a DNA sample taken for purposes of "identification of human
remains," and who might be concerned to know that these DNA samples,
though taken for use in identifying remains of fallen soldiers, now are
routinely used in law enforcement investigations. See Patricia A. Ham, An
Army of Suspects: The History and Constitutionality of the U.S. Military's
DNA Repository and Its Access for Law Enforcement Purposes, 2003-AUG Army
Law. 1; 62 Fed. Reg. 51835, 51835 (Oct. 3, 1997). Possibly such a practice
is justifiable under a balancing test, but in a proper case the privacy
issues will be confronted. I express no view on the proper resolution of
this question.
|
| [294] |
*fn44 The plurality consists of five judges, including the
author, who have joined Judge O'Scannlain's opinion. They adopt a sweeping
totality of the circumstances test, as I will explain, blatantly
eviscerating the constitutional requirement of individualized suspicion
for law enforcement searches. One judge, Judge Gould concurs on a
different basis, making the necessary six votes to affirm. Judge Gould's
rationale, the "special needs" test, is on its face more limited than the
plurality's, but in the end its application here would also have drastic
adverse consequences for our Fourth Amendment protections. Five judges,
the same number who compose the plurality, dissent. Four of those judges
join this opinion, including the author. The fifth, Judge Hawkins,
dissents for similar reasons.
|
| [295] |
*fn45 CODIS is a three-tired hierarchical system of
information sharing. The FBI's National DNA Index System (NDIS)
constitutes the highest level in the CODIS hierarchy, all participating
laboratories at the local and state level have access to the NDIS
database. All DNA profiles in the CODIS system are collected at the local
level (LDIS) before flowing to operative state databases (SDIS). SDIS
"allows laboratories within states to exchange DNA profiles." See CODIS
Mission Statement and Background, available at
http://www.fbi.gov/hq/lab/codis/ program.htm (last visited June 20, 2004)
[hereinafter CODIS Mission Statement and Background]. "The tiered approach
allows state and local agencies to operate their databases according to
their specific legislative or legal requirements." Id.
|
| [296] |
*fn46 The DNA Act itself defines a DNA sample as "a
tissue, fluid, or other bodily sample of an individual on which a DNA
analysis can be carried out." 42 U.S.C. § 14135a(c)(1). However, the
record in this case reveals, and neither party before us has disputed,
that the FBI has required all participating CODIS laboratories to
construct DNA profiles by obtaining blood samples.
|
| [297] |
*fn47 This is not to say that the enumerated qualifying
crimes are not serious. Indeed, many of the crimes listed at 28 C.F.R.
§28.2 are among the most heinous crimes in the federal code. Some of the
more severe qualifying crimes include murder, 18 U.S.C. § 1111; sexual
abuse and assault, 18 U.S.C. §§ 2241-45; the willful destruction of
aircrafts and terrorist attacks, generally, and against mass
transportation systems, 18 U.S.C. §§ 32, 1993, 2332f, 2332b; the
development, stockpiling, or use of chemical, biological, or nuclear
weapons, 18 U.S.C. §§ 175, 229, 831, 2232a; the commission of genocide, 18
U.S.C. § 1091, torture, 18 U.S.C. § 2340A, or other war crimes, 18 U.S.C.
§ 2441; threats against the President, 18 U.S.C. § 871; and the
assassination or attempted assassination of high-level government
officials, 18 U.S.C. § 351, 1751.
|
| [298] |
*fn48 California's ballot initiatives have often served as
models for other states. Proposition 227, CAL. EDUC. CODE § 300 (1998), to
take just one example, which eliminated bilingual education in the state
and replaced it with English language immersion courses, almost
immediately became a prototype for similar legislation in other states.
See generally Charu A. Chandrasekhar, The Bay State Buries Bilingualism:
Advocacy Lessons Learned from Bilingual Education's Recent Defeat in
Massachusetts, 24 CHICANO-LATINO L. REV. 43 (2003). So too did Proposition
209, the anti-affirmative action measure, and Proposition 13, the tax
reduction measure that placed drastic limitations on local governmental
taxing powers, especially with regard to property taxes.
|
| [299] |
*fn49 Some states have already passed legislation
authorizing police to collect blood samples, with or without consent, from
any driver reasonably suspected of drunk driving. See Joseph T. Hallinan,
Police Draw Blood, Literally, as They Fight to Put a Stop to Intoxicated
Drivers, L.A. DAILY, Mar. 24, 2004, at 4 (noting that Alaska, Arizona,
Florida, Indiana, Iowa, Michigan, Nevada, and Texas have all passed
legislation authorizing forcible extraction of blood
samples).
|
| [300] |
*fn50 Some scholars currently advocate extending CODIS to
cover the entire population. See, e.g., D.H. Kaye & Michael E. Smith,
DNA Identification Databases: Legality, Legitimacy, and the Case for
Population-Wide Coverage, 2003 WIS. L. REV. 413 (2003). As noted supra, at
11481, all members of the Armed Forces are already required to provide DNA
samples.
|
| [301] |
*fn51 None of those exceptions serves to justify the
present search regime, which, as I describe below, is intended for the
primary purpose of assisting in the everyday investigation and prosecution
of crimes. See infra, at 11501-03.
|
| [302] |
*fn52 The term "special needs" first appeared in Justice
Blackmun's concurrence in New Jersey v. T.L.O., 469 U.S. 325 (1985), in
which he stated that certain cases would allow for exceptions to the
warrant and probable-cause requirements when the balance of governmental
and private interests supported such a departure, but that such balancing
would be appropriate only "in those exceptional circumstances in which
special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable." Id. at 351. On
several occasions, the Supreme Court has upheld suspicionless non law
enforcement search regimes without using the words "special needs." See,
e.g., Hudson v. Palmer, 468 U.S. 517 (1984) (prisons); United States v.
Ramsey, 431 U.S. 606 (1977) (border searches); Camara v. Municipal Court
of City and County of San Francisco, 387 U.S. 523 (1967) (administrative
inspections). But nearly all of those cases pre-dated the Court's first
use of the phrase "special needs." See T.L.O., 469 U.S. at 353. Moreover,
later Courts have categorized the group of cases involving suspicionless
searches and needs beyond the need for normal law enforcement as "special
needs" cases. See, e.g., Indianapolis v. Edmond, 531 U.S. 32, 37-38 (2000)
(explaining that the border search line of cases and the previous traffic
stop case, Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990),
were special needs cases because they involved suspicionless search
programs "whose primary purpose was [not] to detect evidence of ordinary
criminal wrongdoing"); Burger, 482 U.S. at 702 (explaining that the
administrative search line of cases falls under situations of "special
need").
|
| [303] |
*fn53 This basic Fourth Amendment tenet was reiterated
this term in Hiibel v. Sixth Judicial District Court, 124 S.Ct. 2451
(2004). There, the Court explicitly reaffirmed its holding in Brown v.
Texas, 443 U.S. 47, 52 (1979), that it is unconstitutional to require
individuals to identify themselves to police officers without reasonable
suspicion. Some level of individualized suspicion, therefore, remains the
sine qua non of cases involving searches undertaken for law enforcement
purposes, even when the only identifying information sought is a person's
name.
|
| [304] |
*fn54 I recognize that several Circuits have recently done
so in affirming the DNA Act on one theory or another. See ante, at
11455-57. I respectfully disagree with those decisions for the reasons set
forth in this dissent.
|
| [305] |
*fn55 For the most part, the Court has required law
enforcement officials to have probable cause in order to invade
individuals' bodily integrity for the purpose of assisting ordinary
criminal investigations. See Cupp v. Murphy, 412 U.S. 291, 295-96 (1973)
(holding that police could require a suspect to give scrapings from his
fingernails as evidence only because of the "existence of probable
cause"); Davis v. Mississippi, 394 U.S. 721, 727-28 (1969) (holding that
police could not force "suspects" to give fingerprints to aid in a
criminal investigation absent probable cause).
|
| [306] |
*fn56 The plurality's contention that the purpose of the
searches is irrelevant confuses the subjective intent of the individual
officer conducting the search, which is irrelevant under Whren v. United
States, 517 U.S. 806, 813 (1996), with the objective purpose of the
programmatic search regime, which the special needs doctrine requires us
to evaluate. See Ferguson, 532 U.S. at 81, 83-84 & n.20.
|
| [307] |
*fn57 The government's supplemental en banc brief attempts
to recast the purpose of the DNA Act purely in terms of meeting the
supervisory needs of the parole and probation systems. See Supplemental En
Banc Br. for the United States, at 13-14. This assertion, while clever, is
belied by the government's arguments made before the initial panel in this
case. The government's contention is even less credible when compared
against the express purpose as stated in the legislative history of the
DNA Act. Moreover, as I discuss infra, the collection of DNA samples is
not a part of the supervisory function of federal or state probation
systems, and the Act is not primarily directed at probationers, parolees,
or conditional releasees but at all persons convicted of designated
crimes.
|
| [308] |
*fn58 The executive branch's interpretation of the DNA Act
and CODIS supports the understanding advanced by the legislative history.
See, e.g., Dep't of Justice, Using DNA to Solve Cold Cases 4 (July 2002)
(stating that the DNA database system is a "powerful tool for law
enforcement"); Dep't of Justice, No Suspect Casework DNA Backlog Reduction
Program (FY 2001), at 1 (August 2001) ("DNA evidence used in conjunction
with the Combined DNA Index System (CODIS) is a powerful investigative
tool beginning at the crime scene with the collection of evidence and
ending with a judicial conclusion."); see also Justice Dep't. Acts to
Clear DNA Backlog, MIAMI HERALD, Aug. 2, 2001, at 19A (quoting Attorney
General Ashcroft as saying "DNA technology can operate as a kind of truth
machine, ensuring justice by identifying the guilty and clearing the
innocent.").
|
| [309] |
*fn59 Claiming that DNA profiles are designed to
"identify" the releasee, much like fingerprints, is disingenuous. See
ante, at 11466. Kincade, for instance, was identified and booked with
fingerprints, and his identification was confirmed by a criminal
conviction before a court of law, long before his DNA sample was taken.
The collection of a DNA sample thus does not "identify" a conditional
releasee any more than a search of his home does - it merely collects more
and more information about that releasee that can be used to investigate
unsolved past or future crimes.
|
| [310] |
*fn60 Judge Gould contends that the DNA Act serves the
special needs of a supervised release system simply by deterring future
crime. See Gould concurrence, at 11472. That, however, is not the purpose
of the Act. See text preceding and following this note; see also Kozinski
dissent, at 11534-35. Moreover, even if deterrence were a conscious goal
of the CODIS system, the special needs doctrine would not apply. The
concurrence confuses an alleged ultimate goal of the programmatic search
regime with the "immediate objective of the search[ ]," a distinction that
"is critical." See Ferguson, 532 U.S. at 82-83 (holding that the relevant
consideration is whether the direct and primary purpose of the search is
to "generate evidence for law enforcement purposes"). The forced
extraction of blood is not designed to scare the releasee into avoiding
crime - it is designed to permit the construction of a national database
aimed at solving past and future crimes. See supra at 11455-57. That an
ultimate objective of the Act, the reduction of crime through the
incarceration of dangerous criminals or deterrence, is compatible with the
goals of the probation system is irrelevant. As Ferguson explained, "law
enforcement involvement always serves some broader social purpose or
objective, [and] under respondents' view, virtually any nonconsensual
suspicionless search could be immunized under the special needs doctrine
by defining the search solely in terms of its ultimate, rather than
immediate, purpose. Such an approach is inconsistent with the Fourth
Amendment." 532 U.S. at 84; see also Ronald M. Gould & Simon Stern,
Catastrophic Threats and the Fourth Amendment, 77 S.C.L.R. 777, 814 n.160
(2004) ("The indirect interdiction of criminals from committing future
crimes is inchoate in each prosecution, but it is not the main
point.").
|
| [311] |
*fn61 Ironically, that is where Kincade's blood sample was
eventually extracted. The fact that his incarceration was to be followed
by a period of supervised release was irrelevant. The DNA would have been
taken in prison and placed permanently in CODIS whether or not a
subsequent period of conditional release had been imposed.
|
| [312] |
*fn62 Judge Gould attempts to limit our inquiry to the
sole question whether it is legitimate to take blood from probationers
and/or parolees and to disregard the use to which the samples will
inevitably be put. That is not the way in which the Court evaluates the
programmatic purpose, and thus the constitutionality, of a search regime
in special needs cases. We must look directly to the Act and its purpose.
See Ferguson, 532 U.S. at 81, 83-84 & n.20 (examining use to which
urine samples were put); see also ante, at 11466-657 (explaining that "our
job is limited to resolving the constitutionality of the program before
us, as it is designed and as it has been implemented"). Moreover, under
today's prevailing view, it is highly unrealistic to suggest as Judge
Gould does, that individuals whose blood samples are stored in CODIS may
be free to sue to destroy their DNA records after the period of their
release has expired. Doing so would vitiate the very purpose underlying
the adoption of the DNA Act. Furthermore according to the plurality, the
Fourth Amendment violation in this case is limited to the extraction of
blood. They believe that what is done with that information once it is
taken is irrelevant for Fourth Amendment purposes. See ante, at 11466-67.
This, of course, is directly contrary to the mode of analysis that
Ferguson dictates. In any event, according to the plurality, an individual
who has completed his period of supervised release would not be free to
show that the DNA Act authorized an unconstitutional "search" under its
interpretation of the Fourth Amendment. Finally, Judge Gould's approach
would allow future courts to justify law enforcement programs under any
interest related but subordinate to the primary, traditional, law
enforcement need served by the search. Including newborns in CODIS could
be justified to serve the weighty needs to help prevent child abductions
and assist in paternity determinations, even if the primary purpose were
to maintain the newborns' records throughout their lives for use in future
criminal investigations. This, too, is directly contrary to Ferguson. 532
U.S. at 84.
|
| [313] |
*fn63 The plurality contends that Ferguson interpreted
Griffin to mean that the requirements of the special needs doctrine simply
do not apply in cases involving searches of probationers and parolees.
Ante, at 11457-58 n.26. This reading of Ferguson is plainly incorrect. The
Ferguson footnote to which the plurality refers responded to the argument,
made in Justice Scalia's dissent, that the special needs doctrine permits
suspicionless searches conducted by law enforcement officials for law
enforcement objectives. 532 U.S. at 81 n. 15. For support, Justice Scalia
cited Griffin. The Ferguson majority responded that "Griffin does not
support the proposition for which the dissent invokes it." Id. It
explained that the special needs cases have approved suspicionless
searches only when "there was no law enforcement purpose behind the
searches . . . and there was little, if any, entanglement with law
enforcement." Id. Yet this is exactly what the DNA Act contemplates -
probation officers are required under the Act to collect DNA samples and
immediately turn them over to federal law enforcement officers for
analysis, storage in CODIS, and possible use in future criminal
prosecutions. See 42 U.S.C.A. § 14135a (b). The DNA Act thus entangles
probation officers with normal law enforcement officers in a collective
effort to investigate, solve, and prosecute crimes. This is precisely the
type of program that Ferguson suggested would violate the Fourth Amendment
The plurality, however, asserts that we reach this result by misreading
the facts of Griffin. See ante, at 11457-58 n.26. Yet the facts of Griffin
clearly reflect that although the search was initiated by a police tip and
police officers were physically present at the home being searched, every
critical juncture of the search process - from the decision to search to
the search itself - was carried out and decided upon entirely by the
probation officers and not the police. Indeed, Griffin relied upon the
fact that the probation authorities, who "while assuredly charged with
protecting the public interest, [are] also supposed to have in mind the
welfare of the probationer," id. at 876, were in control of the search
rather than the police: "we deal with a situation in which there is an
ongoing supervisory relationship - and one that is not, or at least not
entirely, adversarial - between the object of the search and the
decisionmaker." Id. at 879. Therefore contrary to the plurality's claim,
Griffin did not involve, but rather condemned, as Ferguson noted, the
entanglement of probation officers with law enforcement
objectives.
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| [314] |
*fn64 I recognize that even special needs cases employ a
balancing test akin to a "totality of the circumstances" approach. But
they do so only after the search regime in question has been deemed to be
a valid, non-law enforcement search. Compare Ferguson, 532 U.S. at 84
& n.21 (refusing to apply "a balancing test to determine Fourth
Amendment reasonableness" because the search was undertaken to generate
evidence for use by the police in enforcing general criminal laws); with
Lidster, 124 S.Ct. at 889-91 (considering the balance of privacy interests
versus governmental needs only after determining that the traffic stop in
question "was not to determine whether [the individuals searched] were
committing a crime, but to ask vehicle occupants, as members of the
public, for their help"). Thus, the "general Fourth Amendment" approach to
reasonableness is something that has been applied in suspicionless search
cases only after the Court has determined that the alleged "special need"
consists of a valid non-law enforcement purpose.
|
| [315] |
*fn65 Robinette, of course, is an example of the
traditional use of the totality of the circumstances approach. In
Robinette, the Court considered whether an officer had probable cause to
ask a driver to get out of his car after he had been pulled over for
speeding. The question, as in almost all "general" Fourth Amendment cases,
was whether the officer had sufficient suspicion to justify his subsequent
search in the absence of a warrant, not whether he needed to have some
level of suspicion. See 519 U.S. at 38-40.
|
| [316] |
*fn66 Additionally, it simply cannot be the case that
"special needs" analysis is "triggered . . . by a departure from the
Fourth Amendment's warrant-and-probable cause requirements." Ante, at
11452. If that were the case, special needs analysis would control cases
involving protective sweeps, see Maryland v. Buie, 494 U.S. 325 (1990),
searches incident to arrest, see Chimel v. California, 395 U.S. 752
(1969), and pat-down searches, Terry v. Ohio, 392 U.S. 1 (1968). The
departure from the warrant-and-probable cause regime of the Fourth
Amendment is not what triggers a special needs analysis; that departure is
the result of a special needs analysis in which the Court finds a valid
programmatic purpose to the search regime - a purpose apart from law
enforcement needs. Under the plurality's view, the "trigger" of the
special needs doctrine is the same as the result. A far better
explanation, in my view, focuses on the reason why the
warrant-and-probable cause regime is not appropriate for determining the
constitutional validity of the search in question - the answer, is that
the Court has held constitutional search regimes where the lack of any
role for individualized suspicion (blanket drug testing of all students,
random traffic stops of all drivers, random inspections of
closely-regulated businesses) is combined with a valid non-law enforcement
purpose.
|
| [317] |
*fn67 Whether the state may authorize suspicionless
searches of the homes of probationers and parolees remains an unanswered
question. See Knights, 534 U.S. at 119 n.6; see also United States v.
Crawford, 323 F.3d 700 (9th Cir. 2003) (holding that suspicionless
searches of probationers and parolees violates the Fourth Amendment),
reh'g granted, vacated by 343 F.3d 961 (9th Cir. 2003); ___ F.3d ___, 2004
WL 1375521 (9th Cir. Jun 21, 2004) (en banc) (assuming over the objection
of several concurring judges, but not deciding, that such searches violate
the Fourth Amendment, but holding that the evidence challenged was too
attenuated to be deemed a product of the search).
|
| [318] |
*fn68 The fact that the school search cases, such as Earls
and its predecessors, are considered paradigm "special needs" cases is
further evidence that the level of privacy an individual, or a group of
individuals, expects cannot be the deciding factor in whether a totality
of the circumstances analysis applies.
|
| [319] |
*fn69 The plurality also contends that ample protections
for conditional releasees remain in the form of "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." Ante, at 11463
(quoting United States v. Crawford, __ F.3d __, __ (9th Cir. 2004) (en
banc) (Trott, J., concurring)).
|
| [320] |
*fn70 The plurality, however, claims that the significant
difference between normal citizens and convicted offenders factors heavily
in the totality of the circumstances analysis, and therefore that the test
is not nearly as expansive as I have claimed. No one should take solace
from this assertion. There is no difference in kind, only one of degree,
between conditional releasees and the countless other groups of
individuals who have been found to possess limited expectations of
privacy. And while school children or applicants for federal positions
arguably possess more privacy than conditional releasees, the plurality is
fundamentally unable to explain how higher expectations of privacy which
still fall considerably short of a "full" expectation of privacy will be
sufficient to trump the awe-inspiring law enforcement interests found by
the plurality to be advanced by the DNA Act and, undoubtedly, by other
statutes designed to provide law enforcement with more effective modern
tools. If the totality of the circumstances test really were the
"traditional" Fourth Amendment test regardless of the absence of
suspicion, and if the special needs doctrine really were made inapplicable
when the group targeted by a blanket suspicionless search regime has
diminished expectations of privacy, it would be difficult to subject
suspicionless searches to serious Fourth Amendment scrutiny in the
future.
|
| [321] |
*fn71 Certainly, it constitutes far more of an intrusion
than merely requiring an individual to identify himself. See Hiibel, 124
S.Ct. 2451, and Brown, 443 U.S. at 52 (requiring reasonable suspicion for
such an inquiry).
|
| [322] |
*fn72 See Tolbert v. Gomez, 190 F.3d 985, 990 (9th Cir.
1999) (Hawkins, J., concurring) (citing instances in which "prisoners
[were] released when scientific tests show they could not have committed
the crime of which they were convicted").
|
| [323] |
*fn73 Incidentally, the argument that the reliability of a
certain types of evidence justifies a relaxed Fourth Amendment standard
has been made before and rejected. See Davis, 394 U.S. at 723-24
(explaining that "we find no merit in the suggestion . . . that
fingerprint evidence, because of its trustworthiness, is not subject to
the proscriptions of the" Fourth Amendment).
|
| [324] |
*fn74 While Ferguson and most of the Court's special needs
cases have involved the population at large, rather than those on
supervised release, I do not believe that distinction carries the day; as
Judge Reinhardt notes, the privacy expectations of convicted felons are
reduced, not
eliminated.
|