United States v. Pool

CALLAHAN, Circuit Judge: Jerry challenges Arbert Pool the district implementation court’s of 18 U.S.C. 3142(b) § (c)(1)(A), requiring him to give sample a DNA as a condition of his pre-trial Applying release. totality test, the circumstances we affirm the dis- trict court. We hold that where a court has determined that there is cause to believe that the defendant com- felony, government’s mitted a interest in definitively determining the defendant’s identity outweighs the defendant’s in giving sample interest a DNA as a condition pre-trial release in cases * Lucero, The Honorable Carlos F. Circuit nation. Circuit, Judge sitting by desig- for the Tenth Act, use of is ments the Bail Reform U.S.C.

which the 3142(b) (c)(1)(A), require purposes and there limited to identification as a provision condition in- no indication pre-trial This condition ap- release.1 any information for other to the tends use all, most, plies to if not federal criminal purpose. 14135(a)(1)(A).2 charges. See § U.S.C. I DNA as The defines “a dou- 8, 2009, charged Pool was January On together ble-helix nucleic acid held shaped by in- the District of California Eastern hydrogen composed of bonds and base receiving and possessing dictment with Thymine, and pairings Cy- Adenine and pornography child in violation 18 U.S.C. Guanine, repeat along tosine and which the 2252(a)(2) §§ Pool arrested and 2253. was (referred regions double-helix at different arraignment court for his brought and loci, or short-tandem-repeat to as STR Pool had prior no January on loci).” United States entered plea criminal and he record (9th (en Cir.2004) banc), F.3d 813 we stat- judge guilty. magistrate The ordered not ed: $25,000

Pool on a unsecured bond released Through tandem the use of short repeat obey he pre-trial on the condition (“STR”), technology Bureau the ana- pre-trial consented to all conditions. Pool lyzes the of various presence alleles lo- except provide that he conditions (or loci) cated 13 markers on DNA sample. present specimen. in the These STR stayed “junk the DNA collection to loci are each so-called court found on is, the parties non-genic allow to brief issue. DNA” —that stretches of the constitutionality not challenges presently recognized being amend- as the Act, 3142(b) safety any person the 1. The 18 U.S.C. other or communi- Bail Reform (c)(1), ty, judicial pre- such officer shall order provides: the person— trial release of the (b) recognizance personal on or Release (A) subject person to the condition that the judicial bond.—The appearance unsecured State, Federal, not or local commit a crime pretrial the release of the officer shall order during period subject the of release person recognizance, upon personal or on cooperate person the condition that the appearance of an unsecured bond execution sample of a DNA the collection from court, specified by subject in an amount person sample if of such a the collection person that the the condition not commit pursuant authorized to section of the Federal, State, during or local crime Analysis Backlog Elimination Act of period subject to the condi- of release and (42 14135a); U.S.C. person cooperate in tion the collec- (B) subject the least restrictive further sample person tion from the if the of a DNA condition, conditions, or combination collection of such authorized judicial that such officer determines will pursuant Analysis 3 of the DNA to section reasonably appearance assure the of the (42 Backlog Act of 2000 U.S.C. Elimination safety person required any and the as 14135a), judicial unless the officer deter- person community, other reasonably release will not mines that such person— include the condition person appearance of the as re- assure the quired endanger safety 14135a(a)(l)(A) will provides or 2. Section “[t]he community. person Attorney may, prescribed by other or as General (c) judi- Attorney regulation, If the collect DNA General in Release on conditions. — arrested, samples cial determines that release de- who are officer from individuals (b) facing charges, of this will convicted or from non- scribed in subsection section or appearance detained reasonably persons United who are under assure States person required endanger authority will of the United States.” or responsible coding compare for trait DNA profiles electronically “were in an —and purposely they selected because are not attempt to link evidence from crime scenes physical known associated for which there are no suspects to DNA H.R.Rep. medical characteristics.” No. samples of convicted offenders on file in 106-900(1) at *27. Because there are 106-900(1) system.” Rep. H.R. at 8 repre- in the group observed variances (2000). Attorney General has issued sentation of various alleles at the STR regulations concerning taking of DNA loci, however, derived profiles samples from arrestees. 28 Part CFR may yield probabilistic STR evidence of 73 FR reg- 2008 WL 5155929. The the contributor’s race or sex. Future of ulations “DNA samples generally allow Testing Forensic DNA 39-42. Even collected, be along subject’s finger- a so, profiles DNA generated STR are prints, part pro- the identification highly individuated: Due to the substan- cess,” they but need not ifbe the collection tial present number of alleles at each of samples of DNA “would not be warranted (between the 13 STR loci 7 and see or feasible.”3 73 FR at 74934. 41) Testing Future Forensic DNA objected a giving sample DNA widespread repre- variances in their primarily ground on the that doing so vi- among beings, sentation human rights olated his under the Fourth randomly chance that two selected indi- Amendment. He challenged also the law profile viduals will share the same as unconstitutional under Eighth infinitesimal —as are the chances that a Amendment, and the Due Process Clause person randomly selected from pop- separation and violative of the powers large ulation at will present the same doctrine. DNA profile as that drawn from crime- Citing opinion scene our evidence. See Future Forensic 19-22, 839-40, DNA Testing magistrate 39-42. applied the “to- tality of the circumstances” framework to (footnotes omitted). Id. at 818-19 fur-We consider constitutionality of the stat- however, recognized, ther that “[r]eeent ute. He determined: begun question studies have the notion junk judicial grand DNA does not or jury finding contain useful genetic programming material.” Id. at cause within a pro- criminal n. 818 6. ceeding is a watershed event which differently should be viewed from mere collected, Once a sample is turned prejudicial involvement gathering of evi- over to the Director of the Federal Bureau dence. judicial After such a (“FBI”). finding, a Investigation 42 U.S.C. 14135a(b). liberty may defendant’s greatly be re- FBI analyzes the DNA stricted —even denied. part As of his includes the results release, pretrial defendant System (“CODIS”), Combined DNA Index be de- an prived very FBI-created of his liberty; national database that cat- he can be alogues profiles subject from numerous to electronic monitoring; may he sources. obey CODIS “allows State and local mandatory ordered to a curfew. forensics exchange laboratories ... These conditions are almost identi- notes, regulation 3. The example, DNA-sample ”[f]or in re- aliens from whom collection is non-arrestees, lation to DHS will not be re- operational otherwise not feasible because of quired samples to collect DNA from aliens exigencies or resource limitations.” 73 FR at finger-printed who are processing for law- States, ful admission to the United or from ord,” those which can be and reiterated that “no Fourth cal to conditions probationer parolee on a imposed Amendment or other Constitutional viola- requirement DNA testing a whom require- tion is caused the universal totality under a appropriate found been charged undergo ment that a defendant standard. The of the circumstances necessary, ‘swab test’ or blood test when requirement up-front finds that an court purposes analysis for the to be finding probable cause the de- solely used for criminal law enforcement charged fendant has committed the felo- purposes.” identification closely much more ny places issue July On court is- district totality utilizing with those cases denying sued order the motion to circumstances standard. upholding amend the release order and Applying totality of circumstances DNA testing. timely Pool filed notice of standard, magistrate concluded that appeal requested stay of the DNA impose testing “the decision collection, magistrate granted. pre-trial on re- requirement detainees or warranted, clearly if not leasees seems II “an arrestee’s identi- compelling,” because 3145(c) provides of Title 18 U.S.C. obviously legiti- a matter ty becomes interest,” an appeal and an “has immediate from a release or mate state arrestee expectation privacy in his a diminished detention order. The district court’s de identity.” own mandatory termination that the DNA col provision lection the Act of Bail Reform relief, denying magistrate rights not does violate Pool’s constitutional holding what did not encom- stressed is reviewed de novo. United States v. pass. Cir.2008) Schales, 965, (9th 546 F.3d 971 DNA sampling It does not authorize (“A constitutionality to the of a challenge after citation or arrest for infractions that question federal statute is a of law misdemeanors, as in these cases there novo.”). reviewed de judicial finding probable no of bewill citation, soon the arrest or cause after Our review of the district court’s finding before or after grand jury or no that recognition order starts with the 7(a). arrest. See Fed.R.Crim.P. It extraction of compulsory “[t]he blood officials police per- does not authorize profiling unquestionably implicates judicial prior to a sampling form right security embodied personal finding probable cause which be must Amendment, consti the Fourth and thus made within hours after arrest and 48 meaning tutes a within the ‘search’ Again, finding it detention. Kincade, at 821 n. Constitution.” 379 F.3d criminal charges cause on 15; Boucher, v. 580 see also Friedman allows to set which the court release (9th Cir.2009) 847, (holding F.3d probation conditions similar to those “[tjhere question is no buccal underpinning which is the parole, a search under swab constituted in this case. holding the court’s Amendment”). Fourth magistrate stayed the DNA collec- compulsion as the Accordingly, statute’s to the pending appeal tion Pool’s district contemplate does judge judge. court The district conducted warrant, provision issue a search review, magistrate’s novo found the a de only if it “exhaustive, pass will constitutional muster be findings analysis to certain and well- supported the rec- “falls within established well reasoned and exceptions to the Taking defined warrant clause.” our cue from Samson [v. Califor- Brown, nia, 414- United States U.S. 126 S.Ct. (9th Cir.2009) (internal (2006)], L.Ed.2d 250 we reaffirm quotation and omitted). Here, “the touchstone of the Fourth citation the district court Amend- reasonableness,” ment is id. at 2201 n. exceptions considered two to the warrant adopt “general clause, Fourth Amend- “special needs” test and the approach,” ment “totality “examin[es] of the circumstances” test. totality of the circumstances to deter- Special A. The Needs Test mine whether a search is reasonable.” 2197(quoting Id. at United States v. special The use of the needs test would Knights, 112, 118, 534 U.S. 122 S.Ct. problematic. developed The test was (2001)) (internal 151 L.Ed.2d 497 cases outside of the law enforcement con- omitted). quotation marks “Whether text and the Court has been search is reasonable ‘is determined leery of applying to criminal cases. See hand, assessing, on the one degree Charleston, Ferguson City 532 U.S. to which it intrudes upon individual’s 67, 84, 121 S.Ct. 149 L.Ed.2d 205 other, privacy, and on degree (2001). The language Ferguson Court’s which it promotion is needed for the government’s suggestion renders the ” legitimate governmental interests.’ “special law enforcement interests” can be (quoting 118-19, Knights, 534 distinguished from ordinary law enforce- 587). Id.; ment purposes questionable at best.4 832(“We See also 379 F.3d at Friedman, see also at 853(noting today reaffirm the continuing vitality of that ‘special “[b]ecause the excep- needs’ (9th Oregon, Rise [v. 59 F.3d 1556 Cir. applies only tion to non-law enforcement 1995)] hold that its reliance on a —and purposes, and the State’s interest here is totality of the analysis circumstances the purely use of data for law enforcement uphold compulsory DNA profiling of con purposes, ‘special the exception needs’ victed comports offenders both with the inapplicable”); Scott, and United States v. precedents Court’s recent (9th Cir.2006) (comment- 863, 450 F.3d 870 appeal resolves this in concert with the ing prevention that quintes- “[c]rime is a requirements the Fourth Amend general sential law enforcement purpose ment.”). Accordingly, we review the man and therefore is opposite the exact of a datory DNA provision collection under the need”). special totality of the circumstances test. not, however, We need determine Totality B. The of the Circumstances whether the provision DNA collection Test could special meet the needs test because precedent our apply directs us to the total- totality of the circumstances ity of the circumstances test. In United test requires the court to balance the in Kriesel, (9th States v. 508 F.3d 947 trusion upon the privacy individual’s Cir.2007),we held: legitimate interests. 4. The Court noted: by defining solely needs doctrine the search ultimate, in terms of its rather Because law than imme- enforcement involvement al- diate, ways purpose. approach serves some purpose broader social Such an incon- view, objective, respondents’ virtually under sistent with the Fourth Amendment. suspicionless (footnotes nonconsensual search 532 U.S. at 121 S.Ct. 1281 omitted). special could be immunized under

1219 He noted test. ity of the circumstances stated: Samson, Supreme Court may be de- point, de- at this “defendant ‘is is reasonable a search “[w]hether hand, can very liberty; one he be sub- assessing, on the of his prived termined an upon he monitoring; it intrudes to which to electronic degree ject other, the and, on the mandatory curfew.” obey individual’s ordered pro- for the needed it is to which is correct that at degree magistrate Certainly, inter- governmental legitimate may, through motion point 848, 126 S.Ct. at U.S. 547 ests.’” conditions on indi- judiciary, impose 118-19, U.S. Knights, 534 2193(quoting impose otherwise that it could not vidual Kriesel, 587). See also 122 S.Ct. Thus, determination that on citizen. Samson, the Su- (holding at 952 believe Pool there is cause totality of that the Court held preme felony, allows the ap- a federal committed mode proper was the test circumstances the circum- totality plication requiring statute analyzing a state test.5 stances supervised condition of testing as a Scott, pre- argues, citing release). to which he is en- of innocence sumption However, suggest opinions our of the application to- precludes titled appli- to the pre-requisite may be there test. This tality of the circumstances some there must be this test: cation of however, rejected by the was approach, having individual reason for the legitimate Wolfish, Bell Supreme Court citizen. See rights of a the full less than 60 L.Ed.2d U.S. “the well- 833(noting (1979), pre- it stated when and oth- parolees principle that established applica- no of innocence “has sumption entitled to are not releasees er conditional rights to the determination tion rights protections full panoply during confinement pretrial detainee also public”); see general possessed begun.” ever In- his trial has before (“Scott a re- Scott, had F.3d at 873 Salerno, deed, in United States because he expectation duced 739, 749, 95 L.Ed.2d S.Ct. face, that, explic- on its a form signed had (1987), the Court indicated 697 requirement the warrant itly waived govern- the person’s a arrest that with the use of the word (through implicitly limit the ar- may grounds have ment ‘random’) cause re- probable the waived noted: rights. Court restee’s The But see drug testing.”). quirement 1559(“Even Rise, may in the law face sub competent adults Even context, may inter- State a the as result of liberty restrictions enforcement stantial Amend- Fourth sys with an individual’s justice criminal fere of operation the our probable less than interests with ment suspect an individual police If the tem. intru- if the a warrant and without cause crime, may arrest and hold him they of a justified law only minimal and is sion magistrate determines a neutral until purposes.”). enforcement exists. Ger cause probable whether [95 420 103 S.Ct. Pugh, stein Here, magistrate found (1975). Finally, respon 54] 43 L.Ed.2d jury finding probable of grand or “judicial Appeals of the Court concede and dents that dis event” the “watershed was cause” incarcer noted that arrestee general public from the Pool tinguished a risk of presents if he until trial ated the total- application of allowed for held, use of might for the allow circumstances court this is what district 5. As test. not, totality not, of the circumstances other what and do consider need 1220 jury subject- 441

flight, Wolfish, by grand having see Bell v. U.S. at ed or been 1861], danger S.Ct. or a to wit- [99 judicial ed to determination of nesses. cause, any right to or her withhold his from government. 2095. true identification 481 U.S. S.Ct. When Kincade, brought magistrate 837(“the was before the See 379 F.3d at case, whatever the for the prerequisite profile from the blood derived defendant’s the circum- application totality sample establishes a record test, requirement stances was met. identity defendant’s personal —otherwise Accordingly, balancing we turn in- in which qualified information offender upon against Pool’s trusion right no of privacy lawfully can claim once government’s legitimate interests. (indeed, of a qualifying convicted offense lawfully once arrested and booked into Degree Intrusion on Pool’s custody).”); Privacy Murray, state Jones v. (4th Cir.1992) (“when a sus- physical Precedent establishes that the cause, pect upon probable is arrested required intrusion to take a DNA legiti- identification becomes a matter of Railway is minimal. Skinner v. Labor interest hardly mate state and he can Ass’n., 602, 625, Executives’ 489 U.S. it”). (1989) (“We claim S.Ct. 103 L.Ed.2d 639 also that said the intrusion occasioned government argues by design test not significant, blood since such law, the collection of DNA is limited to commonplace days are a ‘tests these individual identification. The 13 markers periodic physical and experi examinations on the DNA uses to ence with them teaches the quantity identify the donor purposely “were select minimal, of blood extracted is and that for they ed because are not associated people procedure most involves virtual physical known or medical characteris ”) (internal risk, trauma, ly no pain.’ 818(internal tics.” 379 F.3d at omitted); Kriesel, citation 508 F.3d at omitted). quotation and citation also 948(“The See implications additional privacy Kriesel, F.3d at implementing 947. In DNA, a blood test collecting opposed Act, Department mechanism, swab or stated cheek other do not Justice profiles significantly analysis.”). alter our that DNA are to be used for iden purposes.6 tification 73 FR at 74937-38. greater concern, however, Pool’s is not imposes The statute criminal and financial physical with the intrusiveness penalties improper use of sam testing, but with the intrusive nature of 14135e(c), § ples, ac U.S.C. and limits gathered govern- the information the materials, cess DNA 42 U.S.C. however, government, ment. asserts 14133(b)(1)(A)-(C). § pro There only that it are also seeks to Pool’s determine iden- Indeed, Pool, expungement tification. it visions for the is doubtful that of the DNA any or other having individual been if indict- information the defendant acquitted is or identification, Department regulation 6. The of Justice's a for law as tool enforcement states: not allow and do DNA within information profiles system the DNA scope system retained in the are the the to be derive used to "genetic fingerprints” sanitized that can be genetic concerning information sensitive identify uniquely, used to an individual but 14132(b), §§ See 42 matters. U.S.C. traits, do not disclose an individual's disor- 14133(b)-(c), 14135e. ders, dispositions. governing or The rules 73 FR at 74937-38. operation the of CODIS reflect its function the perpetrator. ques- are dismissed. 42 identifies as It is felony charges the 14132(d)(1)(A). person photo- § tionable whether the whose U.S.C. graph helped inquiry, focus the or whose objec- and the amicus raise two Pool comparison helped inqui- familial focus the First, they argue that tions. ry, or her has suffered invasion reveal much collected could information right privacy. constitutional person’s than the identification. CO- more DNA, junk the but concerns the may focus on the Pool’s about DIS understandable, potential all an use of are contains individual’s DNA govern- mitigate the but con- DNA. Pool is not comforted several factors those First, that not look at cerns. ment’s assurance will Kriesel Second, aspects person’s recognized system a DNA. that the DNA collection other genetic not posits government through designed that the was to reveal traits comparisons may physical use of familial sus- such as and medical characteris- Kriesel, 947; Kincade, tics. people simply innocent because their pect Although has some strands that are similar to 379 F.3d at 818-19. there is DNA. Pool and the amicus some scientific evidence to suggest the defendant’s “junk arguments help distin- DNA” that is the assert these focus CO- fingerprints may fin- DIS contain guish DNA from because information that is not individual; this, most, identify they “junk,” an indicates that gerprints government might able to contain no information individual’s ascertain loci, genetic from that it heritage or traits the 13 not predilections. Second, do if actually could so.7 even Addressing Pool’s concerns inverse appellant and amicus have shown that it is order, it that familial compari- is not clear government physically possible for the or, sons raise constitutional issue loci, genetic extract traits from the 13 do, they if whose interests violated. government there no evidence comparisons familial The concern with legally legisla- could do so further without is that a partial matching review CODIS tion, government has inten- or that an individual whose DNA disclose noted, doing tion so. As 42 U.S.C. precisely to crime does match scene 14133(b) § present limits use of DNA from but perpetrator, close information asserts probability enough create Congress prohibited alteration is a close relative to the identi- perpetrator prior loci notice and core without match fied individual. familial is not explanation to See P.L. 108- Congress. by definition the match is not implicated: 203(f). so knows that the perfect, Third, plurality opinion in Kincade perpetrator. It is ques- match is not the rejected similar concerns considered rights the perpe- tionable whether government’s potential as to use of (if through ultimately trator identified opinion DNA information. The noted: comparisons) of familial are violated. use beyond But that the DNA Act analogous seems to wit- fact This somewhat person protections against itself such photograph provides at a of one looking ness misuse, job resolving our limited to stating perpetrator that the has a is and the the be- appearance police constitutionality program which leads the similar us, is it has designed fore as it as photos show the witness of similar look- to individuals, system In our implemented. been ing one whom witness ability sought ny government's to the to extract There is no indication that Pool dis- 7. sample. genetic covery sought expert traits from the DNA to introduce testimo- 1222

government, courts base decisions Pool has no right little or to hide his fantasies, on dramatic Hollywood identity government. ... from the The nature invasion, but on concretely particularized however, facts de- of the is more in veloped adversary the cauldron of the difficult although to evaluate because CO- process to an and reduced assessable only designed identity, DIS is to facilitate If, when, record. ... and some future Pool raises non-frivolous that the concerns program permits parade of horribles use the could DNA materials opponents unregu- Act’s Nonetheless, genetic determine traits. fear — lated profiles disclosure of CODIS plurality opinion that Kincade holds private parties, discrimination, genetic the Act “minimally is invasive both state-sponsored eugenics, ... occasions, bodily terms of the intrusion it and the information it every lawfully produces.” —we have confidence that courts respond will F.3d at 838. We appropriately. conclude that greater has not shown his intrusion on currently imple- As structured privacy than did Kincade.8 mented, however, the DNA Act’s com- pulsory qualified profiling of federal 2. The Government’s Interests offenders can be described as minimally government’s invasive —both terms interests in DNA bodily occasions, samples it intrusion purposes law enforcement lawfully produces. information well It established. is the most accurate means of identification Fur- available.9 (footnotes omitted) 379 F.3d at 837-38 thermore, fingerprint unlike evidence added). (emphasis Although Kincade requires perpetrator that the leave a dis- taking dealt from convict- cernable fingerprint of a scene offenders, plurality’s ed determination crime, it is much more difficult perpe- for a produced by information CODIS trator not to leave some DNA evidence at minimally is applicable invasive is to this the scene of a crime. We have recognized Furthermore, case. Pool has not offered “undeniably interests as might evidence that undermine our Kriesel, compelling” and “monumental.” determination in Kincade. 508 F.3d at 949. sum, In prior judicial decisions hold that physical Kriesel, of a invasion buccal swab or we addressed collecting even blood prick is minimal samples and that from on supervised felons release. Although Judge concurring Gould S.Ct. 174 L.Ed.2d 38 opinion expressed ("DNA in Kincade can, circumstances, concern with tests in certain possible information, misuse of DNA certainty giv- establish alo virtual whether a 841-42, appears F.3d at agreed he to have en particu- individual did or did not commit a plurality with the ripe issue was not crime.”) (internal quotations lar and citations judicial posed question review. He omitted); Kaemmerling Lappin, see also person whether the DNA of a who had “whol- (D.C.Cir.2008) ("DNA testing ly cleared society” their debt should be technique most reliable forensic for iden- erased, responds proper that in a case tifying biological when criminals material presented, “where this pre- issue is we would scene.”) (internal left quotation at the crime sumably society’s weigh need to benefit from omitted); and citations and United States retention of the DNA records aof felon Sczubelek, (3d Cir.2005) against person’s right in a classical sense (noting compared fingerprints, “DNA privacy.” is a further —and fact a more reliable— identification”). means Attorney’s 9. See District Third Judi Office for — Osborne, --, cial District v. Here, probable of cause to believe we must evalu- determination 947-50. an in that individual has committed a federal collecting interests government’s ate the felony, longer individual no has the probable cause de- sample after a a DNA or “right” legitimate expectation keep- of person’s a than after rather termination identity his or from Nonetheless, ing govern- her the government’s the conviction. Kincade, light ment. 379 F.3d at 837. There is remain substantial. interests government’s legitimate of the interests of time between usually lengthy period a identity determining per- the true of the cause an initial determination son, (and rights the balance between those even more time person’s and a trial rights govern- the individual’s favors the final an a after before conviction becomes ment, here, where, purpose the least appeal). During period unsuccessful requiring and the DNA are time, an effect government the has interest provide government per- to the the with determining may the individual whether identity. son’s true pending endangering trial without released or society ensuring that he she com- Here, not really challenge Pool does the of his or her with conditions plies identity primary purpose that is the of the of a DNA sample The collection release. Rather, are despite Act. his concerns ensure that government the the allows government’s the disclaimer inter- of other some did not commit other defendant ests, DNA, by very the collection of its a defendant from discourages crime and nature, provides government the access to pre- of his or her violating condition intimate concerning person’s information a sum, many gov- of the trial release.10 In genetic light determine that in traits. We collecting ernment’s interests precedent, of our these concerns do not are sample person’s after conviction outweigh government’s the interests be- stage, pos- at this earlier the present (1) gov- Pool has not shown that the cause. particular exception sible the needs could, time, actually ernment at this use the confínes arise when arguably improp- the information for individual, replaced by but these needs (2) purposes, er the could do equally legitimate knowing concerns the legislation, so without further being identity person of the released to any intent government has to so use ascertaining imposing public by our opinion information. Guided protect public. necessary conditions apply totality of the cir- test, balancing cumstances and conclude 3. The Balance legitimate interest person identifying outweighs in definitively If not at time that is arrested, privacy.11 the intrusion into his certainly once there been instances, possible appropriate it exam- that it believes “that In some even taking ine the of the sample reasonableness collection from a defen- of a rigorous Knights the more to- under may produce exonerating evidence. dant tality of test than the the circumstances rather totality of the circumstances 11. Our use Jones, exception"); special needs Griffin First, opinions consistent with (4th 1992) test is (applying F.2d at Cir. 306-07 Fourth, Third, Fifth, Eighth, framework); Eleventh and totality of the circumstances Weikert, Justice, States v. D.C. Circuits. See United Dep’t Groceman v. United States Cir.2007) (1st (5th Cir.2004) (applying “the (per 504 F.3d 354 F.3d 413-414 curiam) totality general of the cir- (noting Fourth Amendment that “Courts consider circumstances, including per- analysis totality cumstances chal- [defendant’s] Act”); probationer, an inmate or lenge United States v. son’s status as Sczu- Cir.2005) belek, (3d expecta- determining (stating whether his reasonable perspective databank, 4. Our objective consistent with forcement upon the recent decisions relied bu does not cleanse an otherwise unconsti- tutional search. by 580 F.3d at 858. balancing gov- The case ease of the legitimate ernment’s asserted interests case, however, Pool’s presents very dif- and the intrusion pri- into the individual’s First, ferent factors. unlike the situation vacy may be opinions seen our in Fried- Friedman, judicial there has been a man, Scott, 580 F.3d and 450 F.3d determination probable cause to believe 863. that Pool committed a felony. federal Sec- ond, arguments the opinion Friedman concerned the forcible extrac- tion of a Friedman noted sample by were not made state official person from a state in that being who was held case are made pending govern- Here, trial.12 ment in We held that Nevada had this case. failed to present legitimate sufficient interests or cause to believe that Pool needs to person- overcome the intrusion of committed the crime in determining privacy. al panel’s conclusion of its conditions that would allow the release of discussion of totality of the circum- public Pool to pending Third, trial. approach, stances Friedman, or what it refers to as Nevada proffered statutory no (580 argument “reasonable” F.3d at authority for collecting sample, a DNA but 856), states: here, the Attorney General seeks to en-

The Nevada force the Bail Reform Act passed by authorities extracted the Con- gress.13 sum, DNA from Friedman not they presents because this case very suspected crime, he had committed a different concerns both as to the individu- nor to aid in reintegration legitimate al’s expectation into soci- ety, nor aas matter of his continuing legitimate By interests. supervision. purpose definition, Their simply was totality of the circumstances to gather human tissue for a law en- requires standard that the court consider tion of tors”); outweighed by other fac opinion 12. Our in Friedman noted: Kraklio, United States 451 F.3d repeatedly After Friedman refused to volun- (8th Cir.2006) (federal Act) 924-25 tarily provide sample, Boucher (holding totality that "based on the jaw open forced forcefully Friedman's circumstances, the collection of DNA under took a buccal swab from the inside of Fried- the DNA Act for inclusion in the CODIS data man’s mouth. This search was not related base does not constitute an unreasonable charges to the Nevada then-pending against search and seizure in violation of the Fourth Indeed, Amendment”); Donald, Friedman. deputy Padgett [the district at- 401 F.3d (11th Cir.2005) torney] represented (stating later to a Nevada "[u]tiliz Jus- ing Knights approach, we next tice Court address that she had ordered the search whether the statute is reasonable under a to use investigation Friedman's DNA in the totality of the analysis”); circumstances of cold suspect cases. Friedman was anot Quander, Johnson v. of the cases. (D.C.Cir.2006) (commenting "[tjoday (footnote omitted). 580 F.3d at 851 join body authority, unanimous and we conclude mandatory collection of Thus, Friedman, unlike the search in here Johnson’s DNA was "reasonable” un requested the search according was to "stan- der the balancing Fourth Amendment's test.” Wells, dardized criteria.” See Florida v. (footnote omitted)). Notably, all of these 1, 4, 109 L.Ed.2d 1 upheld cases the collections of DNA evidence (1990). specific before them under the statutes and presented. circumstances presented pre-trial facts in each case. condition his release on his con- the individual drug testing sent to random and to having that the circumstances determination day his home searched time of the in favored the individual does Friedman at night. govern- 450 F.3d 865. While not our determination that under control legitimate ment’s in definitively interest of the circumstances standard totality identifying established, a defendant is well the distinct facts in this case the balance of Kriesel, at ques- 508 F.3d we have mandatory permits the collection of government’s authority tioned the to oth- pre-trial as a release. condition erwise intrude on a defendant’s us facts before in were also Scott Scott, rights.14 recognized In that we very from this case and raised different person’s privacy in his home is interest at totality under the distinct issues usually a zenith and is not reduced standard. The central issue circumstances person’s arrest or a determination even police may Moreover, in “whether conduct probable Scott was cause. Id. at 871-72. government’s alleged pur- we found the on less than cause search based poses imposing ques- the waiver to be awaiting of an individual released while (“We pur- tionable. Id. at 870 assume for trial.” at 864. troubled We were analysis poses of our that the non-law- and the drug the assertion test purpose judi- enforcement interest in —the house search of Scott’s were valid because efficiency in ‘primary’ cial this case. —is he to them a condition of had consented as object But the connection between the release, and that pre-trial determined use) (drug the test the harm to consent to search is valid “Scott’s court) (non-appearance avoided in is tenu- question (taking if the in the fact of search ous.”). addition, In noted that we account) consent into was reasonable.” integrat- has no with “government concern that at 868. We concluded Neva- Scott, ing people like who never left to show that the searches da had failed community, community.” back into the special were under the needs permissible Id. at 874. in approach, noting passing that Scott’s case, In Pool’s seeks in his home was “at its privacy interest only his definitive identification it zenith.” Id. at 871-72. ability to its on his activi- relates to check also held the search Scott We Thus, pre-trial ties while on release. while totality Scott, was not reasonable under the holding mindful of our we are we approach. at 872- convinced in this case the circumstances remain legitimate outweigh interests However, government’s government’s legiti- 73. both legitimate expectations privacy. Pool’s interests, mate as well as Scott’s rights were different from the interests language recognize there is We First, presently bar. rights may appear Friedman and Scott which not in interest Scott was be inconsistent our decision our Instead, sought to Kriesel.15 identifying application Scott. Kincade and We Scott, per- explained: are influence and control doctrine, many daily aspects vasive in of our lives. The "unconstitutional conditions" omitted). (footnote City Tigard, 450 F.3d at 866 Dolan v. 512 U.S. cf. L.Ed.2d 304 example, opinion in 15. For Friedman (1994), government's ability limits the Supreme Court nor notes "neither rights waivers of a condition of exact ever law enforcement benefits, court has ruled that fully even when those benefits are suspicion-less officers conduct searches monopoly discretionary. Government is a services, pretrial other than notably on detainees for reasons provider law of countless enforcement, security.” age prison F.3d at 856-57. How- and we when live in plotted guid have a course on the light based excessive in cir- provided by cumstances,” ance Court separation “violates the Wolfish, 441 S.Ct. and powers by depriving the court of its role in Salerno, at 107 S.Ct. (4) conditions,” mining deter release respects the concerns asserted in each “is an unconstitutional extension of federal of our This led us first to cases. conclude power.” We do any not find of these probable cause determination arguments persuasive. to be the district court application allows for the A. requir- Pool has not shown that totality

of the of the circumstances stan ing provide sample him to a DNA compared specific dard. We then gov rights process. ernment expectations pri interests and violates his to due vacy in this case to those in asserted Pool asserts that he was denied prior eases. We conclude that where a procedural process due because the dis court has proba determined that there is trict court could not specific consider his ble cause to believe that the defendant situation in determining whether to re felony, government’s committed a in quire a sample. argument This fails definitively terest determining the de in light Supreme of the opinion Court’s identity outweighs fendant’s the defen Department Connecticut Safety Public privacy dant’s in giving interest Doe, 1, 4, 538 U.S. sample pre-trial as condition of release (2003). L.Ed.2d 98 See also Doe v. Tan where the use of the DNA is deske, (9th Cir.2004) 361 F.3d limited to 13 loci “purposely selected be (quoting Conn. Dep’t.). In Connecticut they cause are not any associated with Department Public Safety, Supreme known physical characteristics,” or medical Court held that the state’s decision to re where, here, at least there is no evi quire registration as a sex offender on the dence that may legally person’s prior basis of a conviction rather extract other information from the than on the person’s basis of the danger or that ousness did not amount to a violation of intention of attempting to do so. process due process because “due does not require opportunity prove a fact

Ill that is not material to the statutory State’s Pool also advances four other constitu- scheme.” 538 U.S. at 123 S.Ct. 1160. tional challenges to being required give Here, Congress’s require determination to a DNA sample in order qualify pre- a DNA sample as a pre-trial condition of trial release. He asserts “the manda- release where the district court has made tory DNA testing and profiling condition” a probable cause determination similarly (1) procedural “violates process due be- deny procedural does not pro due cause it independent judicial eliminates an cess. determination necessity as to the of the condition,” “Eighth violates his To the Amend- extent that Pool also claims a right ment to be released on conditions violation of substantive process due based ever, while in Friedman the previously state failed to court has reached the conclusion legitimate show sufficient today, interests to out- we against do does not militate our interests, here, weigh Friedman’s application totality of the of the circum- application totality of the of the circum- particular presented stances test to the facts required by stances test—as Kincade concluding government's legiti- Kriesel—leads to a different out-weigh conclusion. The mate interests Pool's inter- claim that neither the Court nor this ests. or detention “liberty interest re- conditions release not be his fundamental on compelled produc- light free maining perceived of the evil.” ‘excessive’ tion,” persuasive. are not Here, his assertions at 107 S.Ct. 2095. 481 U.S. noted, once previously have at least As we against of Pool’s minimal interest light been determination has cause identification, the nature providing limited before, made, right to if not Pool has no intrusion, potential and the value gov- his identification from withhold in solving the DNA identification crimes 837; 379 F.3d ernment. See deterring the commission of future Jones, (holding see also crimes, say requiring cannot proba- suspect “when a is arrested on that sample is DNA “excessive.” cause, his a mat- identification becomes ble can legitimate state interest and he ter of requir- has C. Pool not shown that it”). addition, hardly claim In ing provide sample him a to DNA right a the although may against Pool have violates the constitutional doc- by giving a invasion occasioned physical separation powers. trine of of firmly that sample, DNA it is established asserts, referencing Pool United considerably more blood tests —which Klein, 128, v. 80 States 13 Wall. U.S. than cheek swab—are common- invasive a (1871), 146-47, 20 L.Ed. 519 that Congress Kin- significant and not invasions. place separation powers of violated doctrine cade, Skinner, (citing 489 at 836 enacting the Bail Reform Act because 1402). of light 109 S.Ct. In a prescribes “it rule for courts to follow we cannot find that re- precedents, these allowing to without courts exercise inde sample Pool a DNA is quiring provide to judicial pendent power.” More recent right of to substantive due violation his argument precedent renders Pool’s less process.16 persuasive. Chapman In than United States, 500 U.S. requir- B. Pool not shown has that (1991), ing sample provide L.Ed.2d 524 him to Court right Bail that “Congress power violates his under the noted to Eight punishments Amendment. giving Clause of criminal without define any discretion,” sentencing the courts and him requiring Pool that to argues sentencing providing that scheme “[a] as a provide sample condition rests con individualized sentences not on bail pre-trial release constitutes excessive commands, public policy but on stitutional Eighth under Amendment because into Id. at enacted statutes.” profiling simply “DNA not testing is (internal cita quotations S.Ct. issues to addressed relevant the two be omitted). Moreover, tions in United by pretrial assuring conditions of release: (9th Lujan, States in the appearance defendant Cir.2007), rejected separation we pow case, providing safety court for the argument challenging ers collection ar community.” do not find this We DNA from a convicted felon as a condition Salerno, gument persuasive. the Su do think supervised release. We only argua preme “[t]he Court noted expansion persons Bail of the class of limitation of the ble substantive nature, changes proposed is that the Government’s covered statute Clause guilty is See alleged any intrusion on of Pool’s found not or his case dismissed. rights provision 14132(d)(1)(A). § is also reduced 42 U.S.C. sample may expunged if he is result, separation definitively anal- powers government’s or interest deter- ysis. mining identity outweighs priva- Pool’s cy giving sample interest a DNA aas argument requiring

D. Pool’s pre-trial part condition release be- provide him cause the use of the DNA is an unconstitutional extension of purposes limited identification and there power federal is not well taken. indication that no in- argue Pool Finally, attempts tends use the information for other § is unconstitutional because it 14135a Finally, so. purpose legally do we broadly to all who are “extends individuals mandatory decline Pool’s claims that convicted, arrested, facing charges, or provision collection 18 U.S.C. regard they without to whether fall within 3142(b) (c)(1)(A) is unconstitutional jurisdiction.” Again, federal criminal (1) right because violates his to due to be do not find Pool’s assertion well (2) process, rights violates his under the First, admits, taken. the district Amendment, Bail of the Eighth Clause only interpreted court as here the statute separation violates doctrine of of pow- arrestees, applies federal to defendants ers, and an improper is extension of We too limit review to convicts. our power. federal The court’s district order person Pool’s a claim as who been requiring give Pool to DNA sample a as a federal charged felony. with a In United to pre-trial condition release AF- is States v. Reynard, 473 F.3d FIRMED. (9th Cir.2007), rejected argument we an that a was statute “unconstitutional be LUCERO, Judge, Circuit concurring: cause the federal lacks the I majority opinion, concur but authority under Commerce Clause to separately First, write for two reasons. I require a offender a provide federal stress seek to the narrowness of our hold- DNA sample super as a condition his of ing, identifying issues several we do not Although vised release.”17 the statute Second, today. decide wish to my I state here at issue is broader than the statute for agreeing basis that Friedman Reynard, before us in our reasoning Boucher, (9th Cir.2009), 580 F.3d 847 does Reynard if binding persuasive. not is

not control the of appeal. outcome this IV I case,

In we agree magis- this with the trate finding that his of cause A was a event” “watershed that allows for totality exception of circumstances analyzing to the Fourth In of Amendment’s warrant re- the interests Pool at here, quirement. conclude that this litigation, majority We stake in opinion Nonetheless, instance, explained: 17. We offender. supervised individual condition of release at Reynard’s argument lacks merit. The fed- issue, alone, standing a valid exercise of government’s authority regulate eral government's authority pursuant federal supervised a federal conditions of offender's Further, power. its Commerce Clause release arises when the individual commits Congress’s an such exercise of a federal crime. The Commerce federal power principles required not Clause offend demonstrate that it has in- does not of dependent authority impose each individ- federalism. supervised upon ual condition release 473 F.3d 1021-22. tabase of a series cor- physi- consist of numbers distinguishes between properly length buccal swab and responding cal intrusion to the at each STRs amorphous more serious—in- more loci. Id. number of selected —and by governmental caused vasion evaluated for an STRs individual’s DNA in DNA of information contained collection fraction of the profile represents small addition, profiles. samples and throughout person’s genome. STRs distinguish between the collection must at 249-50. profile. of a DNA DNA and use biological any, if Although purpose, full genome comple- An individual’s —the id., debated, of STRs remains STRs in each cell ment of DNA contained “genes”: genes, not not Unlike STRs have pairs billion base body several —consists specific been shown to code for molecules al., Henry Greely Family et of DNA. T. (“RNA”).1 Id.; acid see also ribonucleic Databases Ties: Use of Offender (“These at 818 loci STR Kin, J.L. & Med. to Catch Offenders’ are each on ... non-genic found stretches (2006). the majority As Ethics being of DNA presently recognized notes, DNA used in the opinion profiles ....); responsible Kaye, trait coding Sys- DNA Index government’s Combined supra, at (“CODIS”) do not contain information tem genome; an individual’s entire about These profiles significantly differ profiles contain information about from “DNA samples. The term (“STR”) repeat occurring tandem short “tissue, sample” is defined statute as “loci,” in ge- points,

thirteen different fluid, sample bodily other of an individu- (Majority (citing 1215 Op. nome. United analysis al on can carried which be 813, v. F.3d 818-19 States 379 14135a(e)(l). is, 42 out.” U.S.C. That (9th Cir.2004) (en banc)).) up is made of cells from an sample are of These STRs stretches DNA contain that en- person’s individual which DNA-replieation process ap- genome. fully analyzed, tire If “stutter,” resulting in pears repeated yield more than that would far information specific sequence iterations of base profile, including contained in a CODIS pairs. Greely, at 249. For supra, See trait-coding information about all on a specific at a locus chromo- example, is, in genome DNA the individual’s —that some, particular pairs may of base series precise genes. content each of her three a row for some appear times in five in a row for people, but times others. repeats

Each variation the number of 2 aas different allele. See id. at identified Despite protestations the con- Pool’s For each of the thirteen loci used trary, at are present profiles CODIS DNA database, between seven and the CODIS all essentially useless for but identification significant twenty-three appear alleles respect, they quite are purposes. In this among population. numbers from fin- gained in the da- similar to the information profiles contained CODIS process Greely, supra, See at for” is a term of art related to the of translation. 1. "Code process transcription translation. If a and proteins 249. These can affect an individual's RNA, stretch of “codes for” stretch characteristics, physical eye color or such as type during produce will a certain of RNA develop propensity to certain diseases. See RNA, turn, process transcription. usual- Kaye, Genotypes, 108 Mich. David H. GINA’s protein, ly which means that the codes (2010). Impressions L.Rev. 54 First during produce protein RNAwill a certain Koops certain See & photographing Bert-Jaap traits. gerprinting —routine Schellekens, Phe- booking procedures. Maurice Forensic DNA Issues, Regulatory 9 Colum. notyping: suggesting Pool cites to several articles L.Rev. Sci. & Tech. 160 & n.4 “junk may actually that so-called DNA”2 (noting fingerprint patterns cor- function, in- important biological play gender, homosexuality, ethnici- relate with genes cluding affecting how and when are ty, congeni- and health conditions such as Cole, 56; E.g., supra note at expressed. disease).3 tal heart Gillis, Mouse Pub- Justin Genetic Code of lished; Comparison With Human Genome distinguish to categorically Pool’s efforts Vital, May ‘Junk DNA’ Indicates contained in information CODIS Post, 5, 2002, Dec. at Al. Yet even Wash. profiles in fingerprints from contained articles do not Pool’s asser- support these ultimately unpersuasive. Although are “Although biologists discovering tion: basis for allowing fingerprinting historical ‘junk DNA,’ types functions for some clear, entirely is not the near universal yet none have the forensic claimed that acceptance practice long casts Cole, do function.” supra STRs note Napolitano shadow over case. See (footnote omitted); Gillis, see also su- States, (1st United F.2d Cir. (surmising pra that in the future a small 1965) (“[Fingerprinting pre- on defendants percentage prove “will non-coding DNA universally proce- trial release] standard regulatory regions”). to be dure, no violation of constitutional Iacullo, rights.”); United States if

Even con- STRs used CODIS (7th Cir.1955) (“[Defen- information, biological tained some limited vio- rights constitutional were not dant’s] the same is true of fingerprints photo- fingerprints lated discusses, when were taken graphs. majority opinion As the used booking comparison the trial as a basis for photographs might yield clues as (Majority fingerprints newspapers to familial found on relationships. Op. 1220-21.) narcotics.”). wrap necessarily Judge Such used to As Au- photographs gustus opined contain information Hand in regarding presaging individu- race, gender, balancing ju- al’s and ethnic characteris- Court’s Fourth Amendment too, Fingerprints, tics. may risprudence by “Any correlate with several re- decades: generally 2. "Junk DNA” ais term that refers considered admissible evidence that it and is, DNA, decade, any non-genic past to stretches of has not been discounted in the it my point. By that do looking DNA Cole, not code for RNA. Simon A. underscores a book- at ” Bunk?, ing judge Designation photograph, Is the "Junk DNA could and, (2007). consequent- not Colloquy 102 Nw. U.L.Rev. whether or Pool is obese 56-57 ly, glean regarding information risk types non-genic STRs one of several his type-2 gen- And sequence. supra, diabetes. reference to Greely, DNA See Pool's 249. susceptibility der his disor- shows to ovarian an issue. ders is not points study showing 3. to one some as- TH01(one sociation between of the factors, CODIS every Not disease has visible risk loci) (an and the insulin minisatellite STR not course, genetic undoubtedly and data is more database), in included the CODIS which cor- precise visual judging than assessment in susceptibility to polycystic ovary relates probabilities associated with certain diseases. syndrome, obesity, type-1 type-2 unconvinced, however, dia- I remain that the in- Stead, betes. John D.H. Allele contained in the formation CODIS database Influence of Lineage on the Role the Insulin Minisatel- present categorically at the time differs from Diabetes, Susceptibility Type already lite in the information contained lineups Human Molecular booking photo Genetics 2929-31 on the bookshelf (2000). study assuming virtually every police country. Even could be station in the B person may be burdensome. straint borne for burdens must be But some Although profile a CODIS contains less community. slight inter- good of than a DNA sample information several finger person involved with ference magnitude, orders of law enforcement to us which must seems one printing must, course, collect sample a DNA common United in the interest.” borne profile. ac- create a These two Cir.1932) (2d Kelly, 55 F.2d States v. a sample of DNA and the tions—collection omitted). (citations provided Pool has not profile creation of a to be loaded weighing interests in a basis for squarely the CODIS onto database —are manner from in a that is different profiling majority opinion Pool. Our challenged fingerprinting involved in the interests holding affirms the district court’s photography. may collect a DNA purport I stress we do not Yet may solely from Pool that be “used hypothetical case decide criminal law enforcement identification that CO- litigant future demonstrate (Dist. 3), specifically, Ct. purposes,” Order RNA, code for or that loci do DIS profile onto to create to be loaded yield repeats loci number CODIS database. Having the CODIS stated what fin- type of a unavailable information majority opinion holds, pains I take nor do we con- gerprint photograph; or not clarify what we do hold. in which nature of the sider a case point, majority The first one the states information in the CODIS genetic stored in no uncertain terms but which bears changed prac- present from database repeating, is that this condones DNA case case, inter- In such a a defendant’s tice.4 testing judicial for individuals for whom a vastly day If that could be different. ests jury grand probable cause determina- arrives, a future court will conduct totali- made; But tion has been does not address test anew. ty-of-the-eireumstances (See now, sampling from arrestees. profile only reveals such mere Pool’s CODIS 1219-20, 1228.) Majority Op. That dis- identity, majority rightly and the factors highly significant.5 judicial A identity Pool’s interest into its tinction is balancing. Fourth Amendment cause determination limits trepidation Analy- clearly pre-trial "priva- holds that a releasee's I note facially Backlog cy liberty greater sis Elimination Act does not interests than a [a]re far analysis probationer’s,” limit DNA to STRs or even non- id. at Scott does coding sequences. proposition See 42 U.S.C. for the there is no stand 14135a(c)(2)(defining analysis § al- meaningful ordinary distinction between an “analysis act the deox- lowed the judicial citizen and individual for whom (DNA) yribonucleic acid infor- identification probable cause has been made. determination Nonetheless, bodily sample”). in a mation acknowledged, "pretrial this court releas- As sensibly branch the the executive limited ordinary ees must suffer certain burdens that CODIS, stored in and it is that information citizens do not.” Id. at 872 n. 11. In this today. program we must evaluate case, Scott, we unlike consider restriction "designed appear- [a defendant's] to ensure key doubt 5. There is no that conviction is ance court.” Id. in relationship reconfiguring in be- moment ignore admittedly We must not finer dis- an individual’s interests tween every governmental may impinge tinctions in an effort cram individual interests that Nevertheless, categories upon we blind into one of two or citizen. them. cannot —convict profiling gradations Doing will not remove to the various other so ourselves system. Although slippery slope; justice United it would serve our criminal issue from Scott, Cir.2006), (9th only the incline. 450 F.3d 863 to slicken States Nonetheless, for in a opportunities mischief inherent Pool has advanced no evi- suspicionless regime. search As discussed suggesting dence that the government will II, infra, further in Part engage in the misconduct of which he permitted suspicionless Court has some warns, cognizant and we must be subject they searches when to “stan- misconduct, penalties for such see 42 criteria, dardized or established routine.” 14135e(c). gov- U.S.C. Whenever the Wells, 1, 4, Florida v. 495 U.S. 110 S.Ct. search, ernment conducts a there ais risk (1990) (citations 109 L.Ed.2d 1 omit- that it will powers. abuse its For example, ted). However, the Court has been care- a law enforcement search for a firearm in ful “programmatic” to caution that such pursuant a residence valid warrant searches not be used as “a ruse for a typically involves control of the entire resi- general rummaging in order to discover home, dence. While in control of the offi- incriminating evidence.” Id. cers could commit conceivable number By permitting programmatic searches of unlawful acts. potential Yet the for the absence of particularized suspicion, we trump abuse does not legality issue of introduce a danger substantial law Admittedly, of a search. potential personnel enforcement will use the DNA- intrusion into spectrum the widest hu- testing regime pretext as a for obtaining present man sample, against evidence suspects individual rather legal but the nature of our analysis re- than as a broad-based tool for ensuring the mains constant. identity of pre-trial convicts and releasees. might objected It also be that this analo- abuse, Because potential of this gy inapt government because the exer- Court approbation has limited its of pro- cises control over a home for a short grammatic searches to those “adminis- time, period of but seeks to maintain Pool’s good Bertine, tered faith.” Colorado v. entire sample permanently. This 367, 374, 479 U.S. brings my me to third and final point (1987); Wells, L.Ed.2d 739 see also regarding the today’s limits of majority: U.S. at 110 S.Ct. 1632. Interposing the We do not decide here whether gov- judiciary between the executive and the ernment may indefinitely retain Pool’s citizenry provides a pre-hoc bulwark Rather, DNA sample. permit gov- against abuse addition to post-hoc ernment to collect Pool’s DNA sample to good faith inquiry. profile create DNA for the data- CODIS important The second limitation on our base. Because yet Pool’s DNA has to be holding today is that we do not consider a collected, we need not examine whether claim of misuse of the system. CODIS may retain his be- Pool focuses argument potential on the yond the creation of pro- the defendant’s may harvest intimate file. revealing information from his DNA In the acquitted, event Pool is or that sample. We must not underestimate these charges against him are otherwise dis- legitimate Although concerns. the CODIS missed, may have his sample and only database profiles, uses gov- profile expunged. 42 ernment See U.S.C. must obtain a DNA sample to 14132(d)(1)(A). § convicted, If profiles. create the he is Government posses- statutory provision sion of the sample, apply; entire would not potential its nev- ertheless, provide to personal majority opinion much more informa- does not tion, presents unquestionable an hold opportu- that indefinite retention permissi- is nity for abuse. concurrence, ble. As noted in the Kincade

1233 omitted); Kincade, may see also 379 F.3d at proposition J., (Reinhardt, dissenting) (arguing, entire DNA an individual’s 843 retain Samson, See unique questions. presents to that the Court had never prior forever (Gould, J., concurring); F.3d at 841-42 programmatic 379 “a search de- approved (“Even 2, Cole, note at 57 n. 15 supra maintain signed produce to evidence cf. sanguine about the who are those relating ordinary wrongdoing, criminal by profiles are concerned posed threat yet any level of individ- conducted without It storage samples.”). about suspicion”). ualized This framework was 14132(d)(1)(A) places § concern Samson, in upended by the Court which defendant with re- upon a former burden searches have been suspicionless held However, as was the to removal. spect involving “special sanctioned both cases Kincade, legality of such a case considering “program- in those needs” and until we are not before us. Not practice is 4, matic” searches. 547 U.S. at 855 n. 126 litigant whose case has been faced with S.Ct. 2193. The Samson Court further ex- penal system will finalized and has left plained that it has “never held that these decided. 379 these issues be See are the limited circumstances F.3d at 841-42. searches absent suspi- which individualized cion could be ‘reasonable’ under II Fourth Amendment.” Id. reason: separately I second write provided guidance The Court has little majority opinion’s dis expand upon the “programmatic” as to the nature of a Boucher, 580 F.3d of Friedman v. cussion Stuart, Brigham City search. 547 Cir.2009). (9th In addition to dif 847 398, 1943, 164 L.Ed.2d 650 this case and Friedman ferences between (2006), “checkpoints it described to combat I majority opinion, in the credit stated driving drug trafficking” drunk as fit- at here that the DNA collection issue fact ting programmatic category. within the pre of all federal generally is conducted at 126 S.Ct. 1943. It also cited 3142(b), releasees, 18 trial see U.S.C. Wells, permissibility held that (c)(1). was direct The search Friedman inventory following impound- search F.3d at single prisoner. at a See 580 ed degree ment turns on the which such the search was not conduct 854(concluding Brigham City, standardized. searches are statutory regime). It ed pursuant 1943; at 126 see also 547 U.S. S.Ct. that a search appear does counterintuitive (“Our Wells, 1632 495 U.S. S.Ct. par permissible because is less be criteria, or view that standardized estab- ticularized, Court’s hold but routine, regulate opening must lished regarding “programmatic” searches ings See, during inventory e.g., Samson of containers found compel this conclusion. principle n. that an California, 547 U.S. searches is based on (2006). 2193, 165 inventory L.Ed.2d must not be a ruse for a S.Ct. search general rummaging in order to discover Samson, had never “Prior to the Court (citations omit- incriminating evidence.” totality of the circumstances held that the ted)); see also id. S.Ct. apply test appropriate was the (“Our (Brennan, J., concurring) cases releas- search of a conditional suspicionless clearly inventory hold that an search Thus, had concluded ee. several courts Amendment reasonable under the Fourth search could suspicionless that a in accordance with stan- only if it is done (or some justified special absent a need limit the discretion procedures dard exception).” States v. Wei- other United Bertine, (citation omitted)); (1st Cir.2007) kert, (emphasis police.” cf. (“Our programmatic pro- at 374 n. 107 S.Ct. 738 nature of the DNA 479 U.S. always filing program adhered to the re- is reasonable. decisions have inventories be conducted quirement Ill (cita- to standardized criteria.”

according omitted)). tion a vexing profil- This is case. The DNA ing system promises at issue enormous provides The dissent in Samson addi- tool, as an guidance. Criticizing majority’s potential investigatory tional but its an the rule that or a holding expansion poses very as abandonment of misuse real suspicionless supported privacy. a search must be to our I threat The distinctions need,” “special Justice ar- attempt Stevens to draw in this concurrence are “if gued suspicion individualized is to magnitude dwarfed com- these jettisoned, replaced interests, it must be peting but we must draw lines as protect against ac- measures state concur, I leaving best we can. therefore Samson, tor’s unfettered discretion.” day questions regard- for another difficult (Stevens, J., S.Ct. 2193 ing the administration of CODIS and the dissenting). “programmatic These safe- government’s retention of DNA samples. guards designed to ensure even- [must be] SCHROEDER, Judge, Circuit application.”

handedness in dissenting: the search held Unlike unconstitutional Friedman, This is a case in which challenged by government the statute Pool extract a imposes uniform burden on all fed- seeks to as a condi- every pretrial eral tion of pre-trial “program- releasees. It is release without ei- matic” in the ther a warrant or a showing sense the Court appears recognize cause to conduct DNA profiling. relevant to wheth- No cir- suspicionless approved er a search is cuit has ever before reasonable. such war- rantless search or seizure before indi- Obviously, programmatic nature of a vidual has been convicted of crime. search not mitigate impact does its on sampling can of course confirm iden- privacy rights. program- individuals’ But tity, provides infinitely but also more matic searches do fulfill another “essential information about an individual than fin- purpose requirement,” of warrant name- gerprints. majority and the concur- ly protect “to by assuring interests ring opinions now uphold the constitution- subject citizens to a search or seizure ality proposed search and seizure such intrusions are not the random or they because find that Pool has failed to arbitrary government acts of agents.” they show that unduly would burden his Ass’n, Ry. Skinner v. Labor Executives’ reduced interests as a pretrial de- 602, 621-22, 489 U.S. disagree fendant. I and would hold that (1989). prac- L.Ed.2d 639 And standard government justify fails to a Fourth limit ability tices do Amendment exemption magnitude. of this profiling use DNA as a of targeting means “political opponents and disfavored congressional minori- The latest enactments ties,” (Reinhardt, challenged F.3d at 848 in this mandatory case extend J., dissenting), harassing disfavored in- testing requirements to individuals legiti- yet dividuals. When combined with the who have not been convicted of mate in ensuring interest crime. DNA Fingerprint See Act of 109-162, trial appears 1004(a)(1)(A), §§ and the limited intrusion Pub.L. No. (2006) (co- upon 1004(b), I privacy, Pool’s am convinced that 119 Stat. 3085-86 3142(b) 106-546, (2000), §§ No. 114 Stat. 2726 and at 18 U.S.C. dified 14135a(a)(l)(A)); required testing § DNA of individuals who (c)(1)(A); 42 U.S.C. Safety convicted of certain enumerated Protection had been Adam Child Walsh 109-248, 155, § 2006, Pub.L. No. violent felonies and who were incarcerated Act of (2006) (codified at 42 parole, probation, supervised on or re- 120 Stat. 14135a(a)(l)(A)). The relevant significant § generated lease. The ease de- U.S.C. court, to require pretrial defendants provisions among bate the members of our a condition of testing DNA ultimately submit to resulted in a divided en banc 3142(b). § release. See 18 U.S.C. pretrial upholding constitutionality decision Attorney promulgated General has on the basis of two different search ordering agencies all federal regulations Compare Fourth Amendment theories. author- samples DNA to the extent obtain (O’Scannlain, J., plurality at 816-40 id. 28 C.F.R. by ized the statute. See opinion) (upholding testing DNA under 28.12(b). “totality theory), of the circumstances” (Gould, J., concurring) with id. at 840-42 the warrant- majority uphold would (concurring judgment special under by applying the “total- pretrial less seizure conviction, theory). needs The fact of circumstances” test that balances ity of the however, indispensable was to both theo- individual the intrusion into at (plurality opinion) (recog- ries. society against protecting the interest nizing changes “transformative up- as a whole. The Court conviction”); wrought by a lawful id. at of release held searches as condition (Gould, concurring) (focusing J. on an individual has only under this test after special recidivism convict- need deter has a convicted of a crime and hence been felons). Moreover, judges ed five dissent- See, e.g., lowered interest. Sam- ed, concluding pri- that the intrusion into 843, 126 California, 547 U.S. S.Ct. son v. vacy sampling occasioned could (upholding 165 L.Ed.2d 250 justified a lawful not be even after convic- pursuant to California search conducted 842-871(Reinhardt, J., tion. See id. at dis- suspi- to consent to requiring parolees law (Kozinski, J., senting); dissenting); 871-75 any time as condition cionless searches (Hawkins, J., dissenting). 875-76 The dis- release); Knights, United States objected senting judges to the fact 151 L.Ed.2d 497 S.Ct. “a government sought program- to conduct (2001) (holding suspi- reasonable designed produce matic search justify cion needed to search where was ordinary relating maintain evidence probationer had consented be searched wrongdoing criminal ... without level probation). as a condition of 843(Re- suspicion.” of individualized Id. at re- have twice considered statutes We inhardt, J., They dissenting). predict- also mandatory testing of those quiring slippery slope ever-expanding toward ed justice system, criminal involved testing. warrantless DNA See id. DNA seizure majority upheld in both a (“If 872(Kozinski, J., dissenting) collecting only because the earlier statutes that were [here], justified fingerprints can be warrant- at issue those cases limited the keep then it’s hard to see how we can persons who had been less DNA seizure to expanding every- database from to include first, In the United convicted of crimes. body.”). 816-17 States (9th Cir.2004) (en Congress the issue banc), We revisited when we considered the to reach indi- expanded the same statute constitutionality Analysis felony, viduals convicted of federal Elimination Act of Pub.L. Backlog violence, crime. often has noted that conditional releas- crime of or sexual abuse Kriesel, enjoy severely expecta- 508 F.3d 941 constricted See United States ees Cir.2007) (9th (considering constitutionali privacy general tions of relative to the ty For All Act of Pub.L. of Justice citizenry —and 108-105, 203(b), No. 118 Stat. a far more substantial interest in invad- (2004)). contentious, again Kriesel was in ing privacy their than it does interfer- majority upholding with the constitu ing liberty law-abiding with the citi- statutory on nar tionality expansion zens. grounds, vigorous a dissent. row over 379 F.3d at 834. None of these consider- 942-50(McKeown, J., Compare id. at ma Kriesel, apply Similarly, ations here. (B. at jority opinion) with id. 950-58 recognized we a direct “[a]s conse- J., Fletcher, dissenting). majority ex quence status as a su- [an individual’s] plicitly ruling limited its constitutional releasee, pervised he has a ex- diminished it, the case before in which the individual pectation privacy” and held that raising challenge the Fourth Amendment governmental interests advanced Kin- awas convicted felon. Id. at 943 n. 3 applied cade to convicted non-violent felons (majority opinion). The dissent contended equal “with force.” 508 Kincade, reasoning and the was, describes, If majority there as the a interests, government’s purported did not justified “watershed event” that what extend to those convicted of non-violent would otherwise be unconstitutional sei- 953-58(B. Fletcher, J., crimes. See id. at zure, conviction; the event was a not a dissenting). post-arrest probable cause determination. here, time, consider for the a We first It is because a conviction what distin- regulations requir- statute and associated guishes parolees, probationers, and those ing mandatory DNA testing as a condition on supervised release from members of the pretrial every release for individual general public that our court has squarely offense, charged with a federal a condition held that warrantless searches and sei- imposed plead before the individual can pretrial zures violate defendants’ Fourth trial. majority stand relies on our rights. Amendment In United States v. prior holdings in Kincade and Kriesel to Scott, (9th Cir.2006), 450 F.3d 863 we held Congress’s find expansion testing of DNA that conditioning pretrial upon release a constitutional, pretrial defendants but drug defendant’s consent to warrantless ignores our rationale those cases. We testing was unconstitutional. We so held mandatory held that testing is con- though testing provides very even such sistent the Fourth Amendment after limited information and could serve reha- (a) conviction because a convicted felon’s purpose. bilitative Our court has also de- greatly interest is reduced com- cided forcible extraction of a DNA (b) parison general citizenry; to the pretrial from a detainee is uncon- interest in invading such Boucher, Kincade, stitutional. See person’s Friedman greater. (9th Cir.2009). Friedman, 834; Kriesel, 379 F.3d at F.3d 847 508 F.3d at 949. In explained government acknowledged that a con- the DNA was changed analysis viction on both sides taken for the purpose law enforcement of the balance: placing it in a cold case data bank. detainee, pretrial 851. We held that as a changes wrought

[The] transformative clearly defendant retained his estab- accompanying lawful conviction and rights. term of conditional release are well-rec- lished Fourth Amendment Id. at ognized by Court, the Supreme squarely rejected which 860. Friedman the con- showing proba Absent a warrant or justified testing could tention Kriesel, profiling to conduct DNA ble cause in Kincade and holdings by our case, the burden to bears those cases concerned because “both exception that a Fourth Amendment show felons still DNA from convicted extracting or seizures are justifies that the searches Fried- whereas supervision,” state under Brown, States v. “reasonable.” United convicted yet not been man had (9th Cir.2009) (“A 410, 414-15 563 at charged. which he was crime with search is unconstitutional un warrantless demonstrates that it government less the concurring majority opinions and The established and well- within certain ‘fall[s] and Friedman Scott thus conflict with both to the warrant exceptions defined determi- that a cause holding ”). The cannot dem clause.’ conviction, nation, consti- than a rather exception that an under the “to onstrate that results in event” tutes the “watershed tality approach ap of the circumstances” My privacy. expectation a diminished Pool, defendant, plies pretrial because circumvent Friedman colleagues try to privacy not have the reduced inter does Friedman, there was no suggesting felons in ests of the convicted Kincade or search, but a stat- authorizing the statute Nor, majority opinion as the ac Kriesel. trump the Constitution. ute does not knowledges, government plausibly can the by suggesting They dismiss Scott rely “special exception, on the needs” be home, which we interest one’s privacy apply cannot exception cause Scott, than the greater recognized gener searches and seizures conducted for not body. in one’s This is privacy interest purposes. al law See Fried enforcement by authority or common sense. supported man, F.3d at 853. Pool does not bear 580 See, California, v. 384 U.S. e.g., Schmerber govern the burden to establish 769-70, 1826, 16 L.Ed.2d 908 86 S.Ct. protect ment will fail to inter heightened privacy (recognizing is taken. Both ests after the DNA beyond intrusions respect “with interest colleagues misallocate the burden of my surface”). body’s proof. prison My colleagues point as well privacy interests have Because Pool’s pretrial that deal with de- security cases diminished as result of not been being temporarily de- fendants who are conviction, the “intrusion” facility. Bell jail prison tained in a See govern- justify significant. The must Wolfish, U.S. seize, indefinitely re- and ment seeks (1979). They similarly point L.Ed.2d 447 tain, profiles, not individuals’ DNA authority involving the detention of de- samples of individuals’ entire but rather present a demonstrated dan- fendants who 14132(b)(3); § 42 U.S.C. DNA. See community. (Dec. to the See United States ger 74,937-38 74,932-01, Fed.Reg. Salerno, 95 2008). 481 U.S. S.Ct. samples These contain “massive (1987). cases, These private L.Ed.2d 697 data” includ- personal, amounts of confinement, health, “person’s with the conditions ing deal information about disease, to detain a race particular the individualized decision and propensity and trial, here, characteristics, inapposite perhaps even gender until and defendant yet been de- for certain conduct.” propensity when the defendant has (Gould, J., concurring). any flight risk or dan- 379 F.3d present termined to samples to be community permits and we are not The statute ger to the justice agencies, in to criminal disclosed prison security. concerned [beyond body’s ... sur- for criminal defense intrusions judicial proceedings, even, personally if identifi- purposes, and on the mere chance desired evi- face] removed, for research able information is might be obtained.” 384 dence 14132(b)(3). 42 U.S.C. purposes. 769-70, 86 S.Ct. 1826. implicated by the concerns Finally, majority equating errs in seizure, material, storage, of DNA interests in this case contains, personal information it is cer- in Kincade with those identified concurring opinion tainly substantial. under Kriesel because Friedman much of the difference between makes Scott, government may rely on profiles, DNA but it samples DNA pretrial those interests when detainees are acknowledges that the DNA sam- rightly involved. Our decision Friedman ple, fully analyzed, if contains a vast squarely forecloses the reli- concurring amount of information. using samples pretrial ance on opinion significance diminishes the of the past defendants to solve and future crimes. fact that cannot seize a See 580 F.3d at 858. Friedman held that sample it must seize a DNA profile; a pretrial DNA extraction from defendant profile. in order to create a The seizure gov- violated the Constitution where the storage sample, and indefinite of the which purpose simply gather ernment’s “was justify that the government is what must human tissue for a law enforcement data- exception, under a Fourth Amendment bank, objective an that does an not cleanse

very fingerprinting different from and oth- otherwise unconstitutional search.” Id. booking procedures. er traditional rely Nor gener- on a majority suggests also errs when it in preventing alized interest the commis- that we are bound Kincade’s character- by pretrial sion of crimes defendants. produced ization of the information from a rejected assumption pre- Scott “the that [a “minimally as invasive.” likely trial defendant more to commit is] law, binding This is not circuit this crimes than public, other members of the aspect plurality’s opinion failed to an individualized determination to without garner majority support. See Finally, effect.” 450 F.3d at 874. (Gould, J., concurring) in “reducing interest recidivism” is mean- (“DNA stores and reveals massive ingless yet where the defendant has not personal, private amounts of about data been convicted of an initial crime. In this individual, and the advance of science case, prior Pool has no criminal record. promises to make stored DNA more time.”). Moreover, revealing reasons, forgoing For all of the I re- court’s decision in Kriesel held instead that spectfully dissent. any privacy be- concerns were reduced cause of the defendant’s lawful conviction. expressly

508 F.3d at 948. It refused

adopt plurality’s reasoning the Kincade on invasion, degree noting that “[t]he samples

concerns about being used

beyond purposes identification are real and Indeed,

legitimate.”

Court held Schmerber that inter- “[t]he dignity

ests human protects

the Fourth Amendment forbid

Case Details

Case Name: United States v. Pool

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 14, 2010

Citation: 621 F.3d 1213

Docket Number: 09-10303

Court Abbreviation: 9th Cir.