Daniel Bill v. Warren Brewer, 799 F.3d 1295

In Oct. 2010 Phoenix Police Sgt. Sean Drenth was found dead; investigators discovered unknown male DNA on his patrol car and weapons.
Detective Brewer and Detective Polombo sought buccal swabs from personnel who entered the scene to exclude them as DNA contributors; most consented but three plaintiffs (officers) refused.
Investigators served applications under Ariz. Rev. Stat. § 13-3905; a superior court judge issued orders authorizing cheek swabs of the five nonconsenting officers, which were taken and analyzed.
Plaintiffs filed a 42 U.S.C. § 1983 suit alleging Fourth Amendment violations for obtaining, analyzing, and retaining their DNA; district court dismissed for failure to state a claim.
The Ninth Circuit reviewed de novo and affirmed, holding the § 13-3905 orders satisfied the Fourth Amendment warrant clause and the intrusion was reasonable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether collecting buccal swabs without a warrant violated the Fourth Amendment	Brewer/Polombo failed to obtain warrants and lacked individualized suspicion	Superior court orders under § 13-3905 satisfied Fourth Amendment warrant requirement	Orders satisfied the Warrant Clause; dismissal affirmed
Whether affidavits showed probable cause/nexus that samples would aid prosecution	No individualized suspicion; plaintiffs were not suspects, so no nexus to crime	Affidavits showed many officers entered scene, others provided samples, and swabs could identify contaminating contributors	Affidavits established nexus and probable cause that samples would aid identification
Whether buccal swabs were an unreasonable bodily intrusion	DNA collection reveals private information and is highly intrusive	Buccal swabs are brief, minimal intrusions; officers have diminished privacy in some employment-related contexts	Intrusion was minimal and reasonable given government interest in evidence integrity
Challenge to continued possession/retention of DNA samples	Continued retention violates Fourth Amendment	Plaintiffs did not develop/press this on appeal; retention governed by state statute	Issue forfeited on appeal; court did not decide retention claim

Maryland v. King, 569 U.S. 435 (2013) (buccal swab is a search but can be reasonable)
Schmerber v. California, 384 U.S. 757 (1966) (bodily intrusions implicate privacy interests; reasonableness test)
United States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (probable-cause/warrant principles for DNA-related searches)
Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (probable cause to search concerns nexus between items sought and crime, not suspect status)
United States v. Gates, 462 U.S. 213 (1983) (probable cause is a commonsense inquiry)
Winston v. Lee, 470 U.S. 753 (1985) (reasonableness requires balancing intrusion against government need)
Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967) (nexus requirement for search for evidence)