Lead Opinion
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.
I
A
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
Once STR has been used to produce an individual’s DNA profile, the resulting record
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, CO-DIS 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
B
On July 20, 1993, driven by escalating personal and financial troubles, decorated Navy seaman Thomas Cameron Kineade 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.
Shortly after his August 2000 release from federal prison, Kineade 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, Kin-cade 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, Kineade 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, Kineade appears to have begun making progress in reforming his life.
On March 25, 2002, Kincade’s probation officer asked him to submit a blood sample pursuant to the DNA Act.
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.
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 Kin-cade’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 Kin-cade’s sentence and, once in custody, Kin-cade finally was forced to submit to DNA profiling. He persists in his challenge to the Act.
II
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,
A
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,
The Court has also sanctioned several general search regimes that are free from the usual warrant-and-probable cause requirements. Though not necessarily mutually-exelusive, three categories of searches help organize the jurisprudence. The first can be called “exempted areas.” Included here are searches conducted at the border,
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,
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.”
1
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,
On eventual appeal to the Supreme Court, the Justices explained:
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.
Id. at 873-75,
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 somecases — 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.
Id. at 879,
2
Notwithstanding Griffin's apparent focus on the crucial law enforcement goals of probation and parole,
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,
3
Edmond’s emphasis on the non-law enforcement focus of sustainable suspicion-less 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 suspicion-less drug screening of their urine for law enforcement purposes. Ferguson,
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 suspieionless urinalyses upheld in the Court’s prior drug testing cases:
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.
Id. at 78,
Crucially, the Court continued, the hospital’s program also had purposes clearly distinguishable from those of the Court’s other urinalysis cases:
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.
Id. At bottom, because “the immediate objective of the searches was to generate evidence for law enforcement purposes,” id. at 83,
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,
On a hunch that Knights may have been involved (some prior crimes against PG & E had coincided with Knights’s court appearances), a sheriffs 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,
Aware that conditions of Knights’s probation required him to submit to warrant-less, 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,
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:
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.
Id. at 117-18,
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
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 probation-rehabilitation 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.
Id. at 119-20,
Assessing the government’s interest in applying the search condition to Knights, the Court similarly explained:
[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.
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.
Id. at 120-21,
5
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.
One possible distinction between Knights, on one hand, and Edmond and Ferguson, on the other, suggests a possi
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,”
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.”
Id. at 873,
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 suspicion-less search because the search in this case was supported by reasonable suspicion.
Id. at 120 n. 6,
B
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,
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,
Finally, we observe that our own 1995 decision in Rise v. Oregon,
Ill
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.
A
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 re-leasees and searches of the general public, and laying the framework for a jurispru-dentially sound analytic division between these two classes of suspicionless searches. See Ferguson,
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,
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.
Latta v. Fitzharris,
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,
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.
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,
We also wish to emphasize the limited nature of our holding. With its alarmist tone and obligatory reference to George Orwell’s 198í, 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 843-844, “political opponents,” “disfavored minorities,” post at 848,
B
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,
1
As we have recognized, supra at 821 n. 15, compulsory blood tests implicate the individual's interest in bodily integrity — “a cherished value of our society.” Schmerber v. California,
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.”
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.
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
2
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,
These interests also are intimately related to the core purposes of conditional release: rehabilitating convicted offenders and sheltering society from future victimization. See Knights,
3
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.
Because compulsory DNA profiling conducted pursuant to the federal DNA Act would have occasioned no violation of Kin-cade’s Fourth Amendment rights, the judgment and accompanying sentence of the district court are
AFFIRMED.
Notes
. 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.
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 <http://www.dnare-source.com>.
. 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,
Our cases have not distinguished between parolees, probationers, and supervised releas-ees for Fourth Amendment purposes. United States v. Harper,
. 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 com
. 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/pdfKles 1/nij/l 83697.pdf (last visited May 14, 2004) [hereinafter Future of Forensic DNA Testing ].
. 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.
. 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.
. In addition, because DNA characteristics are transmitted intergenerationally, 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 indistinguish
. 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(1) at *27.
. 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/part-states.htm (last visited May 11, 2004). One noteworthy consequence of linking these independently-developed databases is that CO-DIS 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/pdi/ sa2003rf0065.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 whetherDNA could be collected forcibly from the general population”).
. Based on apparent suspicions that he had been involved in illegal activity, Kineade was discharged from the treatment program on October 19, 2001. But subsequent investigation by his probation officer revealed no evidence that Kineade had actually engaged in any illegal conduct, and the district court approved the Officer’s recommendation that no action be taken.
. 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).
.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 Kineade maltes 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 848, or "to monitor, intimidate, and incarcerate political opponents and disfavored minorities,” post at 848, would comport with other constitutional limitations on governmental authority, such as the First, Fifth, and Fourteenth Amendments.
. On appeal, Kincade raises only Fourth Amendment objections to the Act.
. Our review of a federal statute’s constitutionality is de novo. See, e.g., United States v. McCoy,
.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,
. See United States v. Ramsey,
. See Hudson v. Palmer,
. See, e.g., Chandler v. Miller,
. Compare City of Indianapolis v. Edmond,
. 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.,
. 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,
. As a matter of fact, Knights does not even mention Ferguson, and it references Edmond only once-and purely in passing. Id. at 122,
. 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 863 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,
. We recently were presented with an opportunity to address the question left open by Knights. At issue in United States v. Crawford,
. 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,
. 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."
Judge Reinhardt’s dissent, post at 859-60 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,
. A substantial portion of Judge Reinhardt's dissent is devoted simply to establishing that the Supreme Court has never expressly authorized suspicionless, arguably law enforce
To the extent Judge Reinhardt’s dissent’s refrain of "never,” post at 843, 854, 855, 862, 869-70, 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 827 (discussing and quoting Knights,534 U.S. at 117-18 ,122 S.Ct. 587 ). 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. 6,122 S.Ct. 587 .
. In Morrissey v. Brewer, the Supreme Court observed:
Typically, parolees are forbidden to use liquor or to have associations 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.
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, avail able 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).
. 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).
. But see supra at 819 n. 9.
. 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 articula-ble 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,
. 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.
. 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] preexisting goldmine of DNA data for their research.”
. 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).
. 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.
. 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,
. 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.
. 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,
. 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 834-835; see also Crawford,
Concurrence Opinion
concurring:
I agree with the majority that Thomas Kineade’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.
I
The majority affirms based on extension of United States v. Knights,
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.
Finding these authorities most persuasive, I reach the same conclusion as the majority, and I concur in the judgment.
II
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
. 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,
. 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 pur
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.,
. 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, propensity for particular disease, race and gender characteristics, and perhaps even propensity for certain conduct.
. 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.
Dissenting Opinion
dissenting:
“They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.” BeNjamin FRAniclin, HISTORICAL Review of Pennsylvania (1759).
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.
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.
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).
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
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 832. 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 834-835, and, because the forcible extraction of blood is a constitutionally insignificant invasion of privacy, ante at 836-837, and the weight of the government interest in DNA profiling “is monumental,” ante at 839, suspicionless searches are constitutionally reasonable.
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 “monumental” 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.
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.
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 Jeffeeson, 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 constitu
I. The Scope of the DNA Act and the Combined DNA Index System
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”),
A. The Expansion of CODIS
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(1), 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).
The DNA Act requires samples
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 injur[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; of. 18 U.S.C. § 2281 (criminalizing .violence against maritime fixed platforms).
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
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,
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/ppusOB.pdf, 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 Maec MaueR, Race to IncaRcekate (1999).
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/ bro-ehure.pdf (last visited June 20, 2004).
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 nonviolent 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 Al. California’s propositions frequently are emulated by
B. Junk DNA and the Potential for Expansion
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 818-819. It takes comfort in the fact that scientists have long assumed that junk DNA is “non-genic,” that junk DNA
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 842. 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/co-dis/forensic.htm, affording the federal government the opportunity to re-test and reanalyze 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 842 n.3.
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 818. 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).
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
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
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.
Osborn v. United States,
II. The Reasonableness of the Search
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,
A. The Constitution Requires Individualized Suspicion for Law Enforcement Searches
The Fourth Amendment’s requirement that searches be supported by reasonable and particularized suspicion and a warrant
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.
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.
Id. at 100-102,
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,
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,
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.
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.
Id. at 37,
Although the “general interest in law enforcement” does not refer to every law enforcement objective, see, e.g., Illinois v. Lidster,
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,
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,
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.”
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, 540 U.S. at -,
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,
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.
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 surveillance 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 824. 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.
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.
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.
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.
Last but not least, the Griffin Court confronted a search regime which required reasonable suspicion before any search could be conducted. See
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.
III. The Totality of the Circumstances Test
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, suspi-cionless 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 suspi-cionless 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,
No Supreme Court ease 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.
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.
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. The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary.
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.’ ”
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,
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 829. In support of this proposition, the plurality cites Grif
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.
B. The Dangers of Adopting the Totality of the Circumstances
The rationale employed by the plurality would set us on a dangerous path. The
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 832, 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 sus-picionless searches would be valid in many more situations than the plurality would presently be willing to admit.
The Court has identified countless groups of individuals who have reduced expectations of privacy. Conditional re-leasees are obviously one such group. See Morrissey v. Brewer,
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 government’s “persuasive” law en-for cement 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.
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 834-835.
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
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,
C. Even Under the Totality of the Circumstances Test, the Searches Authorized by the DNA Act Are Unreasonable
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
1. The Extent of the Intrusion Caused by the Search
The intrusion authorized by the DNA Act is significant. As the Supreme Court explained in Skinner v. Ry. Labor Executives’ Ass’n,
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.
I would hold that the invasion of privacy required by the DNA Act is substantial.
2. The Expectation of Privacy
It is by now a banal observation that probationers and parolees have diminished expectations of privacy. See United States v. Knights,
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 834-835. In other words, convicted offenders’ reduced privacy expectations may last forever.
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.
3. The Governmental Interests
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
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 839 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,
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.
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.
D. Summary
Were we to apply the totality of the circumstances analysis, I would hold that the balance of considerations makes the programmatic 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.
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 estab
IV. Conclusion
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.
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 ease 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.
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.
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.
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,
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 Brandéis once wrote,
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.
Olmstead v. United States,
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.
. 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 constitu
. 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 CO-DIS 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.
. 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)(l). However, the record in this case reveals, and neither party before us has disputed, that the
. 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.
. 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.
. 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).
.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 844, all members of the Armed Forces are already required to provide DNA samples.
. 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 856-857.
. The term “special needs” first appeared in Justice Blackmun’s concurrence in New Jersey v. T.L.O.,
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,
.This basic Fourth Amendment tenet was reiterated this term in Hiibel v. Sixth Judicial District Court, - U.S. -,
. I recognize that several Circuits have recently done so in affirming the DNA Act on one theory or another. See ante, at 830-832. I respectfully disagree with those decisions for the reasons set forth in this dissent.
. 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,
. 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,
.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
. 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.”).
. Claiming that DNA profiles are designed to "identify” the releasee, much like fingerprints, is disingenuous. See ante, at 837. 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.
. 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 840. That, however, is not the purpose of the Act. See text preceding and following this note; see also Kozinski dissent, at 874-875. 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,
. 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.
. 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,
. 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 832 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.
. 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,
. 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
. 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 829. If that were the case, special needs analysis would control cases involving protective sweeps, see Maryland v. Buie,
. Whether the state may authorize suspi-cionless searches of the homes of probationers and parolees remains an unanswered question. See Knights,
. 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.
. 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 835 (quoting United States v. Crawford,
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 834-835 & n. 29. Additionally, the availability of a cause of action under § 1983 is not a justification to deny an individual his Fourth Amendment rights.
. 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.
. Certainly, it constitutes far more of an intrusion than merely requiring an individual to identify himself. See Hiibel, - U.S. -,
. See Tolbert v. Gomez,
. 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,
Dissenting Opinion
dissenting:
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,
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.
Once Kincade completes his period of supervised release, he becomes an ordi
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 pinprick — against the “monumental” benefits to society, op. at 839, it is unclear how the balance could be struck any differently as to ex-probationers than as to current ones.
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?
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 836-38. 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
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 838 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.
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.
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
Because the great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence ushered in by Katz v. United States,
Judge Gould commendably recognizes the troubling implications of using Kin-cade’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 Kin-cade’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.
The plurality enthusiastically accepts this justification and thus has already an
Dissenting Opinion
dissenting:
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.
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,
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,
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.
. 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.