United States v. Thomas Cameron Kincade

813 314, there is insufficient evidence 105 grounds, Or.App. 804 P.2d 511 (1991). against Perry the retaliation either or was motivated racial

Thomas animus. Thus, summary we affirm judgment in fa- VII. Conclusion vor of the equal defendants Thomas’ For stated, the reasons we reverse the protection Keyser claim. See v. Sacra- court’s grant district of summary judg- Dist., City mento Sch. 265 F.3d Unified ment on Thomas’ First Amendment retali- (9th Cir.2001) 741, 754-55 (affirming sum- ation claim against City Miller, mary judgment against plaintiffs be- on her Title VII retaliation claim they produced cause evidence insufficient against City. We affirm grant the employer’s decision to demote summary judgment to Adlard on all of the “racially them was motivated” (quoting claims and to remaining defendants on Henderson, (9th v. 465, FDIC 940 F.2d equal Thomas’ protection, wage retaliation Cir.1991))); see Maynard, also F.3d and common law wrongful discharge 1405 (reversing jury’s verdicts for the claims. Each party shall bear its own plaintiff because the evidence did not show costs. the retaliation against plaintiff part, AFFIRMED in REVERSED in “occurred because assisted a Black [he] part and REMANDED. person,” but rather an “suggested] alter- actions”). native motive the defendants’

VI. Other Claims

The district properly grant court summary judgment

ed wage on Thomas’ claim.

retaliation The record does not demonstrate that “made a wage Thomas America, UNITED STATES of claim,” 652.355(l)(a) (2004), § Or.Rev.Stat. Plaintiff-Appellee, “expressed or an wage intention to file a claim,” Brown v. Prop. Mgmt. Am. Corp., Or.App. 1 P.3d KINCADE, Thomas Cameron “discussed, it

Nor does show that in she Defendant-Appellant. quired about or attorney consulted No. 02-50380. agency wage about a claim.” Or.Rev.Stat. 652.355(1)(a). § Appeals, United States Court Ninth Circuit.

Summary judgment on wrong her discharge ful claim proper. was also Even Argued and Submitted March 2004. assuming City that the discharged Thomas Aug. Filed in retaliation for her to retalia opposition against Perry, tion Thomas did not suffer personal injury

the kind of that would providing

warrant remedy common law

of wrongful discharge in addition to the

existing statutory state and federal reme for retaliation.

dies See Carlson v. Crater Co.,

Lake Lumber Or.App. (1990),

P.2d on other modified General, Fran- San Attorney

Office Renkes, Alaska De- CA, D. cisco, Gregg Juneau, AK, Law, Mark J. partment of the Attor- Bennett, Department Hawaii Attorney Gen- General, Idaho Office ney McGrath, Department eral, Montana Mike Helena, MT, Hardy Myers, Ore- Justice, Salem, OR, Justice, Department gon Office Washington Gregoire, O. Christine WA, General, Olympia, Attorney Alaska, California, amici curiae States of Montana, Hawaii, Idaho, Oregon, appellee. support Washington, Knox, Stratton, Monica E. Maria Defender, Tanaka, Public Federal

Michael CA, appellant. for Angeles,

Los Marcus, Department L.

Jonathan SCHROEDER, D.C., Judge, Chief and Debra Before Justice, Washington, REINHARDT, PREGERSON, Ronald L. Clymer, D. Yang, Steven W. HAWKINS, O’SCANNLAIN, KOZINSKI, B. Chooljian, Ow- John Jacqueline Cheng, GOULD, WARDLAW, Office, SILVERMAN, Angeles, Attorney’s Los ens, U.S. CALLAHAN, CLIFTON, Circuit CA, appellee. for Judges. Hofmann, and Marcia Rotenberg Marc Center, Privacy Information Electronic O’SCANNLAIN, Judge: Circuit D.C., curiae Elec- for amicus

Washington, Center, sup- Privacy Information tronic Fourth decide whether We must appellant. port of the DNA compulsory permits Amendment conditionally-released of certain profiling Uzeta, Pro- Bird and Michelle Melinda individ- in the absence of federal offenders Inc., CA, Angeles, Los Advocacy, & tection they have committed suspicion that ualized Advocacy, curiae Protection & for amicus additional crimes. Inc., appellant. support Cox, O’Toole, Alison Todd Timothy P. I Toro, Di Public De-

Flaum, and Jennifer Colum- District fender Service A D.C., bia, for amicus curiae Washington, District of for the Defender Service Public Analysis DNA to the Pursuant Columbia, support appellant. (“DNA Act of 2000 Elimination Backlog 106-546, Act”), Anderson, No. Stat. Pub.L. R. Jo Lockyer, Robert Bill (2000), convict who have been Hin- individuals George F. Graves, Engler, A. Gerald who are federal crimes1 and ed of certain California dall, III, Camps, A. and Enid abuse, assault, abuse, gravated child sexual terms enumerated the initial 1. As arson, robbery, burglary, kidnapping, Act, offenses" federal "qualifying these crimes. murder, attempt conspiracy to commit such ag- or voluntary manslaughter, included incarcerated, parole, probation, preserve hair, saliva, or on or cells), than or skin supervised provide release2 must guidelines federal Bureau require those in federal tissue, fluid, authorities with “a custody subject other to the DNA Act bodily sample offenders”) ... on ... analy (“qualified which a[n] federal to submit to sample’s] deoxyribonucleic sis of compulsory th[at acid blood sampling. Nancy (DNA) Beatty identification information” can be Gregoire, Federal Probation Joins 14135a(e)(1)-(2); §§ performed. Collection, U.S.C. the World 66 Fed. 14135a(a)(1)-(2). §§ id. at Because the Probation Failure coop- “to (“the Federal Bureau of Bu Investigation erate in the collection of that sample [is] reau”) misdemeanor,” considers DNA information derived ... a Aclass punishable by samples from blood to be more up year’s reliable to one imprisonment and a fine (in than that obtained from other $100,000. sources of as much as 42 U.S.C. part 14135a(a)(5); § because blood is easier to §§ test and to 18 U.S.C. 3571 & 3581.3 14135a(d)(l). scheme, § passage prior See 42 U.S.C. sentencing-and-parole With cf. Act, Paskow, of the PATRIOT Pub.L. No. United States v. 11 F.3d (2001), § (1993), 115 Stat. acts of ter- Congress has thrice extended the fed- (as rorism defined 18 U.S.C. parole system eral for individuals sentenced 2332b(g)(5)(B)) and additional crimes vio- 1, for offenses committed before November (as 16) § lence defined in 18 U.S.C. have been (document- § 1987. See 18 U.S.C. 3551 note qualifying added to the ranks of federal of- extensions). ing primary difference be- 14135a(d)(2). § fenses. See 42 U.S.C. A types tween these of conditional release is complete qualifying list of federal offenses can imprison- the former follows a term of § be found at 28 C.F.R. 28.2. shortening ment rather than one. Although provisions the federal offender distinguished Our cases have not between here, the DNA Act are most relevant we note parolees, probationers, supervised and releas- beyond that the Act reaches the federal arena. purposes. ees for Fourth Amendment United Subsidiary provisions provide for collection 894, (9th Harper, States v. 928 F.2d n. 1 896 storage of DNA information from offend- Cir.1991) (Kozinski, J.); see also v. Griffin subject jurisdiction ers to the of the District of Wisconsin, 868, 873-74, 483 U.S. 107 S.Ct. Columbia, 14135b, § 42 U.S.C. and the 3164, (1987); Berge, 97 L.Ed.2d 709 Green v. Forces, § Armed 10 U.S.C. 1565. The Act 675, (7th Cir.2004) (Easter 354 F.3d 680 appropriates support $170 also million to brook, J., Hill, concurring); United States v. state pro- efforts to collect and to store DNA 902, (3d 1992); 967 F.2d 909 Cir. United cf. files from state offenders and crime scene 359, Woodrup, States v. 86 F.3d 361-62 & n. 14135(a) (j). §§ 42 evidence. U.S.C. & Par- (4th 1996) (analogizing parole, 4 proba Cir. result, tially every as a state in the Union now tion, release); supervised United v. States operates program. regu- a DNA collection A 1201, (8th Enemy, Kills 3 F.3d Cir. larly-updated summary legisla- of state DNA 1993) (treating parole probation search <http://www.dnare- tion can be found at applying pre- conditions alike and them source.com>. conditions); sentence release United States v. "parole” 2. largely Federal (5th Cir.1990) was abolished and Marmolejo, 915 F.2d replaced "supervised with release” (describing parole, probation, revocations of Sentencing Reform Act of Pub.L. No. supervised "constitutionally release as in 212(a)(2), § 98 Stat. distinguishable”); but see United States v. 3583; § See 18 U.S.C. see also John- (9th Crawford, 372 F.3d 1076-1077 Cir. States, 694, 696-97, son United 529 U.S. 2004) (en banc) (Kleinfeld, J., concurring) (2000) (cit- 120 S.Ct 146 L.Ed.2d 727 distinction). (proposing States, ing v. United Gozlon-Peretz 395, 400-01, Accordingly, qualified 112 L.Ed.2d 919 3. federal offenders on (1991)). However, post probation supervised because ex facto con- or release who refuse to statutory would arise sampling cerns if the framework submit to DNA under the Act also governing supervised mandatory release were retroac- breach two conditions of their tively applied persons probation parole: they sentenced under the shall not com- selected purposely be- “were quali- coding6 phlebotomist, collected Once —and samples are blood not they offenders’ associated fied federal cause analy- DNA Bureau for over to turned characteristics.” or medical physical known of an recording identification sis-the 106-900(1) at *27. Because H.R.Rep. No. fingerprint.”4 “genetic individual’s in the group variances are observed there repeat tandem of short Through the use alleles of various representation analyzes (“STR”), the Bureau technology loci, however, derived profiles DNA STR alleles5 located presence various evidence may yield probabilistic by STR loci) (or present on DNA markers Future or sex. race the contributor’s are each loci These STR specimen. 35, 39-42.7 DNA Testing Even Forensic is, “junk DNA”—that found on so-called so, generated STR are profiles presently stretches non-genic to the substantial Due highly trait individuated: being responsible recognized develops normally. state, A federal, specific diet the child or local of- mit an additional only represen- 3583(d); develop if both 3563(a)(1) PKU fense, child will §§ & U.S.C. see 18 pair appropriate chromosome 5B1.3(a)(l) tatives §§ & see also U.S.S.G. carry allele. If there is course, the abnormal and, 5D1.3(a)(1), submit normal, the other is allele and' the one PKU U.S.C. sampling. to DNA normal; enzyme amount will 3583(d); child 3563(a)(9) U.S.S.G. see also §§ & enough. by single allele is turn, produced normal 5D1.3(a)(8). 5B1.3(a)(10) viola- §§ & Testing Be- Forensic DNA Future super- probation or terms of one’s tion of the nearly percent of DNA is non- cause sentencing court authorizes the vised release "regions genic, show and because those of his or the conditions revoke or to extend do, variability genes genetic same 3564(d)-(e), §§ U.S.C. See 18 her release. more[,] usually ... the words common- fact 3583(e)(2)-(3). 3565(a) & ...) (e.g., describing genes ly allele used for [non-genic] DNA re- over to are carried phrase con- figurative 4. While this common gions. ...” Id. at 12. the image profiling to jures of DNA a useful biological uniqueness the that it extent evokes question begun to the studies have 6. Recent misleading technically beings, it is human of junk not contain useful DNA does notion profiling for DNA present context: in the Wayt programming material. W. genetic non-genic variations purposes these records Gibbs, Among the Gems The Unseen Genome: building of life. See blocks coded into the Junk, Am., 2003, at 29. Sci. Nov. Comm, Evidence, of DNA for the Future Nat'l Inst, Justice, Justice, Dep't Nat’l addition, DNA characteristics because In 7. Testing Nov. DNA The Future Forensic intergenerationally, it is transmitted are http:// at available identify person who a "quite [possible a is to] (last 83697.pdf 1/nij/l www.ncjrs.org/pdfKles contributing person the [DNA] relative 14, 2004) Future May [hereinafter visited Indeed, shortly after sample.” Id. at 35. this Testing]. Forensic DNA submission, under en case was banc taken Michigan Rapids, discovered police in Grand a often is used refer 5. The term allele rape kit from that DNA evidence taken par- producing a genic responsible variant prisoner pre- of an matched that incarcerated National Commission ticular trait. The only to viously convicted of sexual assault — provides the Evidence the Future of DNA apparent DNA contributor that the discover example: following illustrative previously twin brother also was had a who pres- was and who gene convicted of sexual assault particular is re- specific [A] allele rape question at the in ent the area of enzyme that in sponsible converts for the Press, Assoc. DNA tyrosine. of its commission. phenylalanine into time acid amino Case, abnormal, May Key Rape Suspect’s missing Twin enzyme or this When currently seeking disease, are phenylketonuria, 2004. Authorities develops child identical, whether the twins retarda- determine mental or PKU. The is severe result indistinguish- treated; their DNA case would happily, with which tion unless child 14132(a)-(b).9 §§ present number of alleles each of the 13 As of March CODIS (between STR loci 7 and see Future contained DNA profiles 1,641,- drawn from 41) DNA Testing Forensic and wide- 78,475 076 offenders and crime scenes. spread representation variances their Fed. Bureau of Investigation, NDIS Sta- among beings, human the chance that two tistics, available http://www. randomly selected individuals will share (last fbi.gov/hq/lab/codis/clickmap.htm vis- profile same are infinitesimal —as are 2004). May ited Of profiles, those person the chances that a randomly select- 298,767 10,270 offender records and foren- population ed from the at large pres- will sic samples originated in the states com- ent the profile same DNA as that drawn prising the Ninth Circuit. See id. from crime-scene evidence. See Future of DNA CODIS can be Testing

Forensic 39-42. used two different First, ways. law enforcement can match Once STR produce has been used to one forensic crime sample scene to another individual’s DNA profile, resulting rec- forensic crime sample, scene thereby al- ord is loaded into the Bureau’s Combined lowing officers to connect unsolved crimes (“CODIS”) System DNA Index massive —a through a perpetrator. Second, common centrally-managed linking database and of perhaps greater significance, CO- federal, state, profiles culled from and ter- DIS enables officials to match evidence ritorial programs, DNA collection as well obtained at the scene of a crime profiles drawn from to a crime-scene evi- dence, remains, particular profile. offender’s genetic unidentified this latter samples voluntarily capacity, provided by relatives potent CODIS serves as a tool missing persons. 42 U.S.C. for monitoring the activity criminal able, fraternal, police simple in which case could misdemeanors. At least three states- Louisiana, Texas, clear the late-discovered twin. Id. Virginia-currently col- arrestees, samples lect DNA from certain Beyond STR-generated profile, pending require California initiative would immediate, CODIS records contain an identifier for prospective collection of DNA agency provided sample, the DNA information from adults arrested for enumer- number, specimen identification and the felonies, years ated and within five of enact- personnel name of the associated with the ment, any felony. § La.Rev.Stat. 15:602 106-900(1) analysis. H.R.Rep. No. at *27. (2004); 411.1471(a)(2) § Tex. Gov't Code (2004); (2004); § Va.Code Ann. 19.2-310.2:1 states, Currently, Army, 49 the U.S. the Bu- Cal., Attorney see also State of Office of the reau, profiles and Puerto Rico share DNA Gen., Measures, Active available at through exception among CODIS. The lone http://www.caag.state.ca.us/initiatives/pdi/ Mississippi. the states is See Federal Bureau (last 11, 2004). sa2003rf0065.pdf May visited Investigation, Participants, NDIS available measures, light widely varying In of these it http://www.fbi.gov/hq/lab/codis/part- particularly important is therefore to ob- (last 11, 2004). May states.htm visited One solely serve that we deal here with the noteworthy consequence linking these in- legality requiring compulsory pro- DNA dependently-developed databases CO- filing qualified federal offenders on con- currently profiles DIS stores DNA taken from express opinion release. We ditional no on individuals who have been convicted of a sub- authority stantially federal or array broader of offenses than the pass narrowly qualifying the states to less tailored federal offenses enumerated in Green, 14135a(d) legislation. § § U.S.C. F.3d at and 28 C.F.R. 28.2. In- 679-81 Cf. deed, (Easterbrook, J., many programs concurring) beyond (explaining state reach well collecting profiling federal model-some that the DNA information of convicted offend- offenders, drug custody from non-violent and others ers in and on conditional release requiring samples persons present question from convicted of "does not whether action was No 2004, program. drug treatment Through March offenders. known May 21 and and on request, his taken on has that CODIS indicated Bureau data submitted 28, 2001, again Kineade May nation- investigations 16,160 aided some- a re- As samples. cocaine-positive urine the Ninth Circuit. 1,710 within

wide— the terms sult, modified district court Investiga- Investigation, Fed. Bureau on June release supervised of Kincade’s Aided, available tions in a residential treatment to include http://www.fbi.gov/hq/lab/eodis/aided- Thereafter, ap- Kineade drug program. 2004). (last May visited map.htm making progress have pears begun to reforming his life.10 B 25, 2002, probation Kincade’s On March escalating driven July On sample a him submit blood officer asked troubles, decorated financial personal refused, Act.11 He to the DNA pursuant Kineade Cameron Navy Thomas seaman objections that his eventually explaining in violation using firearm a a bank robbed personal prefer- purely matter were (d) 2113(a) & §§ of 18 U.S.C. words,’’not convic- religious his ence—in 924(c)(1). pleaded He soon § U.S.C. sug- officer probation Kincade’s tion.” sentenced charges and was guilty to those advice, attorney for contact his gested he followed imprisonment, months’ changed if his he explained and also Among release. supervised years’ three sample on a blood he could mind submit him required others, of his release terms 4, 2002, Kineade April 2002. On April outpatient in an substance participate of his inten- Office the Probation notified commit another not to program; abuse and, he promised, comply not to tion crime; to follow state, federal, local on profiling appear for refused officer. probation of his the instructions 7, 2002, pro- Kincade’s May 16. On April 2000 release August his Shortly after him in an contacted again officer bation Kineade submitted prison, from there was federal whether effort to determine co- for positive sample through which tested way they urine could work some his arrest was issued that he would warrant Kineade indicated caine. A issue. 13, the October, of the DNA requirements and November with the early comply of a original imposition Kincade’s Act if reinstated threatened district court Lacking Kin- term of incarceration. April significant supervision. term alternative, officer probation Kincade’s into cocaine abuse relapsing cade admitted Kineade court the district informed residential placement and requested 12.Therefore, the free we need not address forcibly from be collected could appli- potentially raised issues exercise general population”). holding persons Act to of the DNA cation had suspicions that he apparent 10. Based on Likewise, be- religious objections. sincere activity, was illegal Kineade been in involved such al- Kineade no claim-and cause maltes program on discharged from the treatment fairly though to us- seems obvious answer 19, investiga- subsequent October 2001. But of CODIS we not address whether use need evi- no probation revealed tion his officer or, quite literally, to elimi- repress dissent "to actually engaged in dence Kineade had 848, post or "to political opposition,” nate monitor, intimidate, conduct, court any illegal the district political and incarcerate approved the recommendation Officer’s minorities,” post at disfavored opponents and be taken. no action 848, comport with other constitutional would authority, such governmental on 18 U.S.C. limitations § 2113 and 18 U.S.C. Both Fifth, First, Amend- as the Fourteenth DNA qualifying § offenses for federal 28.2(a). § ments. purposes. Act See C.F.R. sample positive drug had refused to submit the blood tested use. Consequent- by the DNA Act. He also recom- required ly, Judge stay Tevrizian lifted his of Kin- supervised mended revocation of Kincade’s and, cade’s sentence in custody, once Kin- release, and re-incarceration. finally cade was forced to submit to DNA profiling. persists He in challenge his to to briefing prior the district court the Act. hearing, a scheduled revocation Kincade

challenged constitutionality Act that it II grounds DNA violated the Clause, Ex Post Facto the Fourth Amend While would “[i]t be foolish to ment, separation principles of powers degree contend that the secured III embodied Article and the Due Process to citizens the Fourth Amendment has 15, 2002, July Cla use.13 On Kincade entirely been unaffected the advance of appeared at a hearing revocation before States, technology,” Kyllo v. United Judge U.S. District Dickran Tevrizian. 27, 33-34, 121 150 L.Ed.2d stating After on the record he was (2001), begin-as ways- we first al with inclined to hold the DNA Act constitution principles.14 al, Judge Tevrizian offered Kincade anoth opportunity er profiling submit to DNA A proceeding lieu of with the revocation counsel, hearing. Kincade consulted with Pursuant to the Fourth Amend quickly who informed the court that Kin- ment,”[t]he right of people to be se again cade had declined to reconsider his houses, persons, cure their papers, and profiling. refusal to submit to DNA effects, against unreasonable searches and seizures, violated, shall not be and no War Following argument, Judge Tevrizian issue, cause, rants upon probable shall but rejected Kincade’s chal- constitutional supported by affirmation, par Oath or lenges to the Act. Concluding ticularly describing place to be Kincade had violated the terms of his su- searched, persons things and the to be pervised by refusing release to follow his Const, seized.” U.S. amend. IV. “The Probation officer’s lawful instruction to touchstone of analysis our under provide a blood sample, Judge Tevrizian always Fourth Amendment is ‘the reason sentenced Kincade to four months’ impris- ableness in all the circumstances of the years’ supervised onment and two release. particular governmental a citi Judge immediately invasion of stayed Tevrizian Kin- ” personal security.’ Pennsylvania zen’s imprisonment, cade’s sentence of and we Mimms, 106, 108-09, expedited appeal. April review of his On 434 U.S. 98 S.Ct. (1977) appeal pending, (quoting Terry 2003—while this 54 L.Ed.2d 331 was Ohio, and while serving Kincade was his addi- v. (1968)).15 supervised

tional again release—Kincade L.Ed.2d 889 appeal, compulsory 13. On Kincade raises Fourth 15.The extraction of blood for profiling unquestionably implicates objections Amendment Act. right personal security embodied Amendment, Fourth thus constitutes 14. Our of a federal statute’s review constitu- meaning "search" within the of the Constitu See, tionality e.g., de is novo. United States v. Ry. tion. See Skinner v. Labor Executives’ 1114, (9th Cir.2003); McCoy, 323 F.3d 1117 Ass'n, 602, 616, 1402, 489 U.S. 109 S.Ct. 103 Cortes, 1030, United States v. 299 F.3d 1032 (1989) ("We long recog L.Ed.2d 639 have (9th Cir.2002). compelled body that a nized intrusion into the 282 (1969); v. see Thornton of L.Ed.2d 685 also

Ordinarily, the reasonableness governmental compli States, -, depends on 541 U.S. 124 S.Ct. a search United Clause, re which (2004). ance with Warrant 2127, 2132, And 158 L.Ed.2d 905 probable to demonstrate quires authorities context arrest even of a lawful outside thereby magistrate a neutral cause to cause, are supported by probable officers him formal authoriza provide convince to to a warrant- likewise authorized conduct a search issuance proceed to tion they protective pat-down less of individuals particularized warrant. United States their long in the field so as encounter Ct., 297, 407 Dist. U.S. v. United States justified by suspi concerns are reasonable 2125, 315-16, 32 752 92 L.Ed.2d S.Ct. See, Terry, danger. e.g., cion possible Ramirez, (1972); also v. 540 U.S. see Groh 27, 392 at 88 S.Ct. 1868. U.S. 1284, -, 551, 124 157 S.Ct. (2004). However, gener- 1068 L.Ed.2d also sanctioned Court has un- of the Clause is not al rule Warrant search general regimes several conditions, variety of yielding. Under warrant-and-probable free from the usual may enforcement execute a search law cause not neces requirements. Though with its complying without first dictates. sarily mutually-exelusive, categories three instance, police may execute For warrant- help organize jurispru searches to a lawful arrest: It less searches incident can “exempted dence. The first be called to is reasonable for authorities search areas.” Included here con are searches might for threaten weapons arrestee border,16 ducted at the and at prisons,17 safety, or might them for evidence which airports and entrances See, destroyed. e.g., Chimel v. be Califor- nia, 752, 762-63, 2034, 89 buildings.18 395 U.S. S.Ct. 23 ciety prepared recognize legiti- analyzed to be not as for blood alcohol content any subjective expectation a Fourth mate must deemed Amendment omitted); search.”) (quotation might prison prisoner see Win that a in his also have Lee, 753, 760, 1611, [A]ccordingly, 470 105 ston v. U.S. S.Ct. cell.... the Fourth Amend- (1985); against proscription 84 L.Ed.2d 662 Schmerber v. ment unreasonable Califor nia, 757, 767-68, 86 1826, apply U.S. confines 384 S.Ct 16 searches does not within the course, (1966). cell.”). prison L.Ed.2d 908 Of the fact that hardly such extraction constitutes search See, Miller, 305, e.g., Chandler v. U.S. 520 dispositive, as "the Fourth Amendment does 323, 1295, (1997) 137 S.Ct. L.Ed.2d 513 proscribe 117 all and seizures...." searches ("[Wjherethe Skinner, 619, public safety risk to is substan 489 U.S. at 109 S.Ct. 1402. real, suspicionless tial blanket 606, may the risk Ramsey, 431 calibrated to rank as reason 16. See United States v. U.S. 1972, (1977) example, routine 97 S.Ct. L.Ed.2d able'.—for searches now 52 617 border, ("[S]earches airports pursuant entrances to courts and other made at the buildings.”); right sovereign official see also United States v. longstanding Edwards, (2d Cir.1974) F.2d protect stopping examining per- itself ("When jeopardy is the property crossing country, the risk to hundreds sons and into this simply by human lives millions of dollars of are reasonable virtue of the fact border.”); property pirating blowing inherent in at the also occur see Flores-Montano, up large airplane, danger of a alone meets United States v. 540 U.S. -, reasonableness, (2004); long S.Ct. test of so 158 L.Ed.2d 311 Hernandez, good Montoya search is conducted in faith for the United States v. de purpose preventing hijacking or like dam L.Ed.2d 381 age pas scope reasonable and the and with senger given has been advance notice his Palmer, 517, 526, liability 17. See Hudson a search he can to such so that avoid air.”) (1983) ("[S]o- by choosing (quoting it not to 82 L.Ed.2d travel

823 Edmond, maternity patients); labeled of category typically The second 531 U.S. searches, 48, 121 at 447 though (invalidating it has S.Ct. a roadside “administrative” given checkpoint designed that label.19 This to discover and always been inter inspections closely-regu illegal drugs); includes of dict Vernonia Sch. Dist. class Acton, businesses, see, 646, 2386, Burger, 482 v. 515 115 e.g., lated U.S. U.S. S.Ct. 47J (“[W]here (1995) 702-04, (upholding pro 107 2636 132 L.Ed.2d 564 a at S.Ct. gram subjecting interests of the owner are weak student athletes to ran dom, reg suspicionless drug interests in testing); ened and the see also ulating Treasury Employees businesses are concomi Nat’l Union v. Von particular Raab, 656, 1384, tantly inspection a warrantless 489 U.S. 109 103 heightened, S.Ct. (1989) may (upholding suspicion- L.Ed.2d premises of commercial well be rea 685 drug testing of the Fourth less of certain meaning sonable within the U.S. Customs Biswell, Skinner, Amendment.”); officials); 634, at United States v. 489 U.S. 109 311, 317, 1593, (upholding compulsory 406 U.S. 92 S.Ct. 32 S.Ct. 1402 blood (1972), in employees L.Ed.2d 87 and extends to other and urine tests of railroad See, accidents); regulatory investigations. Griffin, routine volved certain train S.F., 879-80, 387 483 e.g., (uphold Camara v. Mun. Ct. U.S. U.S. 107 S.Ct. 3164 of 523, 535-539, 1727, 18 a ing probation 87 S.Ct. L.Ed.2d 930 warrant-less search of a (1967) residence). (authorizing municipal inspec “area er’s designed compliance tions” to monitor part, For the most these cases involve codes). budding safety searches conducted for important non-law category suspicionless A final purposes enforcement contexts where needs,” “special warrant-and-probable searches is referred adherence to the years, requirement and in has impracticable. recent Court devoted cause would be Thus, development increasing explained Jersey attention to the the Court New analytical a accompanying “preservation doctrine. See v. T.L.O. order and Lidster, 419, 124 proper requires Illinois v. 540 U.S. S.Ct. educational environment (2004) 885, schoolchildren, (upholding supervision 157 L.Ed.2d close as well 843 highway against of rules con- checkpoint designed po enable as the enforcement perfectly lice to if question permissible citizens about recent duct would be crime); Earls, 339, Bd. Educ. v. 536 U.S. undertaken an adult.” 469 U.S. (2002) time, 822, 2559, 153 L.Ed.2d 735 At the same S.Ct. S.Ct. 733. (upholding program subjected explained, probable all the warrant and Court participating requirements students in extracurricular cause are ill-suited to the random, suspicion- pressing public activities to submit to needs of schools. Id. at drug testing); Ferguson City less v. 105 S.Ct. 733. The Justices there- Charleston, 67, 1281, setting requires “that the 532 U.S. fore found school (2001) (invalidating pub easing 149 L.Ed.2d 205 some of the restrictions to which ordinari- hospital’s drug testing by public lic non-consensual authorities are Bell, (2d ....”), Burger, United States v. 464 F.2d with New Yorkv. 482 U.S. C.J., 1972) (Friendly, concurring)). (1987) Cir. L.Ed.2d 601 107 S.Ct. (grouping inspections closely-regulated Edmond, City Compare Indianapolis businesses with "other situations 32, 37, 121 S.Ct. 148 L.Ed.2d T.L.O., ”) (quoting Jersey v. need' New (2000) ("We have also allowed searches 325, 353, 83 L.Ed.2d 720 purposes for certain administrative without J., (1985) (Blackmun, concurring)). particularized suspicion of misconduct sys- probation of a operation A “legality of a State’s held that subject,” and ly school, tem, gov- operation of a like its depend simply should of a student search supervi- or its prison, office or reasonableness, all the cir- ernment under on the 340-41, industry, likewise regulated of a at sion cumstances, search.” Id. of the beyond normal ‘special needs’ presents de- Blackmun As Justice S.Ct. 733. may justify depar- law enforcement in his concur- rationale scribed the Court’s proba- warrant and tures from the usual school environ- it was the ring opinion, Probation, like requirements. needs, beyond the normal ble-cause “special ment’s incarceration, sanc- is a form of criminal enforcement, ma[d]e [that] law need upon an by a court offend- require- imposed tion probable-cause warrant and verdict, finding, plea of er after at Id. impracticable.” ment proba- of always is true (Blackmun, J., guilty.... [I]t concurring). (as it to be of we have said true tioners enjoy not do parolees) liberty every to which is citizen absolute “special needs” soon as Almost as entitled, liberty but conditional articulated, however, rationale was dependent on observance properly analysis applied special needs Court re- restrictions. These special probation on the surface—to seemed—at least what assure that the strictions are meant to At law enforcement context. be a clear period genuine a probation serves as search was a warrantless issue Griffin community and that the rehabilitation home, instigated and probationer’s aof being probationer’s harmed not of law carried out under the direction goals require and large. at These same with what acting officials enforcement to as- justify supervision exercise of pure law enforcement to appeared are in fact sure that the restrictions search are The facts of the motives. observed. early illuminating. In particularly Beloit, po- (citations, 873-75, in the Wisconsin detective Id. at 107 S.Ct. 3164 omitted). proba- Griffin’s department contacted and alterations Care- quotations, lice information supervisor with tion officer’s fully noting “special that these needs”— weapons in his might have system that Griffin re- operation of a of conditional cooper- to secure the apartment. Unable supervision close lease characterized probation own officer of Griffin’s operate ation whol- convicted offenders—did search, supervisor of a execution ly the Fourth Amendment eliminate strictures, for as- probation another officer subject enlisted rights of those its accompanied three promptly probation sistance that the Court observed context apart- plainclothes policemen Griffin’s necessitated relaxation nonetheless uncovered ensuing ment. The search warrant-and-probable cause re- the usual at weapon, Griffin, 107 S.Ct. 3164. quirement. Id. was arrested and and Griffin S.Ct. In circumstances it is both unreal- such of a firearm charged possession object of the whole istic destructive sup- eventually felon. He moved relationship continuing probation during the the evidence uncovered press degree of de- upon to insist the same of his Id. warrantless search residence. reliability particular items monstrable 872, 107 data, supporting upon same violation, certainty Supreme degree appeal to the eventual On some in other contexts. Court, required explained: the Justices involving drugs especially inspection those conduct a non-invasive visual cases— interior, the car’s a weapons probation agen- and lead narcotics- illegal or —the dog detention around the cy upon to act based a vehicle’s exteri must be able Edmond, 35,121 or. 531 U.S. at 447. certainty than the S.Ct. degree lesser During program’s operation, police Fourth Amendment would otherwise re- temporarily detained more than 1100 vehi quire pro- in order to intervene before a approximately cles and arrested 100 indi damage to himself or soci- bationer does (approximately drug viduals half for viola ety. offenses). tions and half for other Two of Thus, 879, 107 Id. at 3164. the Court S.Ct. sued, eventually detained motorists al concluded, permits the ex Constitution leging suspicionless such law enforce probation parole ecution of ment detentions violated the Fourth suspi than based on no more reasonable Amendment. trig at cion-even where the search issue is motorists, Siding with the the Court ex gered by law enforcement information and plained that approved had never a by apparent motivated law enforcement it 880, 107 checkpoint program primary pur “whose purposes. Id. at S.Ct. 3164. pose ordinary was to detect evidence of

2 38, wrongdoing.” criminal Id. at 121 S.Ct. conclusion, Notwithstanding apparent fo- 447. To reach that the Court Griffin's goals distinguish precedents: cus on the crucial law enforcement of had to two United however, Martinez-Fuerte, 543, probation parole,20 the States v. 3074, (1976), “special more recent needs” cases 96 S.Ct. 49 1116 Court’s L.Ed.2d emphasized have law which upheld suspicionless absence border check aliens, underlying points the chal- designed intercept illegal enforcement motive Sitz, lenged Dep’t search and seizure. Two cases are and Mich. State Police v. 496 Edmond, 444, 2481, particularly noteworthy. In the U.S. 110 S.Ct. 110 L.Ed.2d 412 (1990), Indianapolis, upheld suspicionless Court addressed whether which roadside lawfully sobriety so, police department checkpoints. Indiana could To do the Court a operate program explained justified by of random vehicle that the former was checkpoints illegal unique government an effort to interdict a interest in border control, 37-39, 41, drugs. program, Under the officers ran- id. at S.Ct. immediate, domly stop passing type would vehicles sev- the latter “the vehi throughout city. posed eral locations Once cle-bound threat to life and limb” detained, 39, 43, 121 vehicle was officers would re- drunk drivers. Id. at 447. S.Ct. contrast, quest registration, Indianapolis’s program its driver’s license and was points, explained respond quickly 20. At various officials to to evidence of Griffin ....”); controlling id. at S.Ct. focus of conditional release is misconduct is, (“[A] ordinary probable-cause requirement criminal recidivism-that com- would re- ordinary by ordinary supervisory crimes crimi- duce the deterrent effect of the mission See, e.g., arrangement. probationer nals. 483 U.S. at 107 S.Ct. would be as- ("[R]estrictions (and long illegal perhaps are meant to assure that sured that so as his genuine socially dangerous) sufficiently probation period were serves as activities community give rehabilitation and that the is not concealed as to rise to no more than go probationer’s being large.”); suspicion, would undetect- harmed reasonable uncorrected.”); ("[M]ore supervision reduce ed and id. at id. intensive can ("[T]he ....”); probationer id. at 107 S.Ct. 3164 need of rehabil- recidivism obtaining likely ordinary delay itation is more than the inherent warrant C‘[T]he law....”). probation would make it more difficult for citizen to violate the eligibil- disqualify one from test result to generalized and ever- “only by the justified benefit, such as ity particular for a interrogation possibility present opportunity partici- any given promotion mo- may reveal inspection in- activity, in an extracurricular pate crime.” Id. at some torist has committed circumstances, intrusion on volves a less serious In such unauthorized dissemination suspend the than the flatly “decline[d] the Court The rea- parties. such results to third suspi- of individualized requirement usual enjoyed expectation sonable cion.” Id. undergoing diag- by typical patient hospital in a is that tests nostic not be shared of those tests will results the non-law en emphasis on Edmond’s without her personnel with non-medical suspicion- of sustainable forcement focus prior In cases was consent. none our in strengthened was soon less searches any upon intrusion that kind there There, addressed the Court Ferguson. expectation. lawfully could hospital public whether a 78,121 Id. at S.Ct. 1281. positive drug pregnant women’s share in an effort tests with law enforcement continued, the hos- Crucially, the Court of “crack babies.” help epidemic solve the clearly program purposes also had pital’s of the hos arrested because Ten mothers distinguishable from those of Court’s police with the eventu pital’s collaboration urinalysis cases: other City hospital and the ally sued the cases, ‘spe- In each of those earlier Charleston, Carolina, alleging that South justifi- cial need’ that was advanced as suspicion- forbids Fourth Amendment cation for the absence of a warrant or screening of their urine for law drug less di- suspicion individualized was one purposes. Ferguson, 532 enforcement general interest vorced from the State’s 71-73, 121 S.Ct. 1281. U.S. case, enforcement.... In this law however, indispensable the central and Edmond, again Court sided As in inception its policy feature of the from began by observing plaintiffs. It with the the use of law enforcement was occasioned infringement patients coerce the into substance abuse sharing private medical data hospital’s treatment. a far law enforcement constituted patients’ pri- into egregious more intrusion bottom, Id. At because “the immediate ob suspieionless urinalys- vacy rights than the jective generate of the searches was to prior drug testing upheld es the Court’s purposes,” evidence law enforcement cases: 83, 121 origin (emphasis id. at S.Ct. 1281 cases, al),21 in light there was no of “the extensive previous In the four officials at purpose of volvement of law enforcement misunderstanding about the 84, 121 every stage policy,” id. at use of the test potential the test or the results, concluded that “this protections were the Court and there closely fit within the simply results case does not against the dissemination ” needs.’ Id. guarded category ‘special of an adverse parties. to third The use footnote, poses. point the exten- explained: [that] "We Our essential In a the Court entanglement reasoning sive of law enforcement cannot those words lest our be italicize legitimate previous spe- justified reference to needs.” of our be misunderstood. none (citations upheld the collection Id. at 83 n. 121 S.Ct. cial needs cases have we omitted). pur- of evidence for criminal law enforcement chemicals, uid instruction manuals on chemistry circuitry, and electrical cut bolt may cases seem to While these recent ters, telephone pole-climbing spurs, drug moving requiring toward paraphernalia, padlock and a brass primarily for law en- search conducted ” stamped Knights ‘PG & E.’ Id. soon was purposes accompanied forcement must be charged, ultimately arrested and and he individualized quantum at least some sought suppress the evidence obtained signaled the suspicion, the Court existence 116, 122 during deputy’s search. Id. at limitations in States v. possible United S.Ct. 587. Knights, Characterizing having At issue there was a sanc- L.Ed.2d Griffin probationer long only purely probationary warrantless search of a tioned suspected having committed crimes tar- undertaken with non-law enforcement mo- (“PG E”) tivations, geting Knights Pacific Gas & Electric & argued the search Shortly Knights facilities. after was impermissible of his residence was because placed probation drug on for an unrelated solely by it had been motivated law en- offense, E targeting an arson a PG & objectives forcement and was executed en- approximate- electrical transformer caused tirely by law enforcement officials. The 114-15, ly damage. million in Id. at Court, however, rejected cursorily $1.5 his ar- 587. S.Ct. gument: logic opinion up- This dubious Knights may On a hunch that have been —that holding constitutionality of a particu- the (some prior against involved crimes PG & implicitly lar search holds unconstitu- E Knights’s ap- had coincided with court any tional that is not it—(cid:127) search like pearances), deputy a sheriffs established contrary express runs to state- Knights’s apartment. surveillance of Griffin’s ‘special holding ment that its needs’ hours, Knights’s he sus- the wee observed ‘unnecessary made it to consider wheth- pected accomplice apartment leave the car- probationers er’ warrantless searches of cylindrical rying items-potential pipe three were otherwise reasonable within the nearby waterway. bombs-toward Short- Fourth meaning of the Amendment. thereafter, ly deputy heard three splashes, Knights’s compatri- and watched 117-18, 122 (quoting Id. at S.Ct. 587 Grif- empty-handed 3164). ot return to the residence fin, 483 U.S. at 115, 122 driving away. before Id. at S.Ct. analyze Rather than the warrantless followed, deputy 587. The and after see- Knights’s apartment search of within the ing suspected park nearby, accomplice framework, in- the Court needs observing “a Mo- approached his question to “consider opted th[e] stead vehicle— materials, a explosive lotov cocktail and open by assessing [left ] Griffin can, gasoline padlocks and two brass that constitutionality Knights’s of the search of description fit removed from those Id. at apartment.” S.Ct. E the PG & transformer vault.” Id. so, To do it turned to the traditional totality test-balancing circumstances Knights’s pro Aware conditions of Knights’s priva- him interest in required bation to submit to warrant- the invasion of less, cy against searching interest suspicionless person searches of his State’s time, deputy supported his home without a warrant residence importance to promptly probable executed a warrantless search of cause. Of central today, explained Knights’s process, home. In the he uncov our decision Court cord, ammunition, liq “Knights’s probationer status as a ered “a detonation possible incarcera- probation, tion of condition informs both subject to a search 119, 122 Id. at that balance.” tion. sides of inter- regard Knights’s With

S.Ct. 587. the Court observed: privacy, est in a dual concern with The State has probation very in the nature of Inherent the one hand is the probationer. On enjoy the do not probationers is that ... successfully that he will hope every citizen is liberty to which absolute community. integrated back into the On punishments as other entitled. Just concern, quite justified, the other is the an offender’s curtail criminal convictions likely engage more that he will be freedoms, granting probation a court ordinary criminal than an mem- conduct reasonable conditions may impose community. The ... [State’s] ber of the of some freedoms deprive the offender violators of the apprehending interest by law-abiding citizens. The enjoyed law, thereby poten- protecting criminal Knights proba- judge who .sentenced may enterprise, of criminal tial victims necessary it tion determined that was justifiably probation- focus on therefore ac- probation Knights’s condition way in a it does not on the ers It was ceptance provision. of the search ordinary citizen. to conclude that the search reasonable result, 587. As a Id. primary would further the two condition held, “no needs Court probation-rehabilitation goals suspicion to conduct more than reasonable society from future criminal protecting at probationer’s a search of house.” Id. [a] clearly probation The order violations. 121,122 S.Ct. 587. search condition and expressed the unambiguously informed of Knights was 5 probation signifi- it. condition thus a Having upheld proba- thus warrantless cantly Knights’s diminished reasonable purely law designed tion search to further privacy. expectation having done so purposes, enforcement (citations 119-20, 122 Id. at S.Ct. 587 wholly special outside the confines of omitted). quotations analysis, Knights suggests needs some- in Assessing government’s interest departure a from Edmond and thing of Knights, applying the search condition (and Ferguson to a more limited extent similarly explained: the Court all, Griffin). After each of those cases very assumption of the institution [T]he searches under a had assessed warrantless probation probationer is that special needs rubric that demands some likely ordinary than the citizen to more underlying apart gov- motivation from the rate of violate the law. The recidivism general in ernment’s interest law enforce- higher than probationers significantly beyond declining apply ment. Yet even general probation- crime rate. And wholly analysis, Knights ig- such almost even more of an incentive to ers have previous nored the Court’s decisions conceal their criminal activities and Ferguson.22 Edmond and dispose incriminating evidence quickly possible One distinction between ordinary pro- than the criminal because hand, they may Knights, on one and Edmond and bationers are aware that be other, subject Ferguson, suggests possi- on the supervision and face revoca- 122, fact, passing. Knights purely in Id. at 22. As a matter of does not even once-and Ferguson, Edmond 122 S.Ct. 587. mention and it references 829 probable-cause make the warrant and The search conducted ble reconciliation: impracticable.” requirement sus supported by reasonable Knights was spe most recent T.L.O., while the Court’s picion, (quoting Id. at 107 S.Ct. 3164 suspicion- focused on (Blackmun, cial cases have needs 469 at 105 S.Ct. 733 seizures, Raab, such as the J., concurring)); less searches see also Von 489 See, e.g., at issue here. profiling (noting U.S. at 109 S.Ct. 1384 at -, 889; Lidster, at special present “justify S.Ct. needs in that case 540 U.S. 76-77, ordinary from the departure at S.Ct. warrant Ferguson, 532 U.S. Skinner, Edmond, probable-cause requirements”); 1281; at 581 U.S. (“Except at S.Ct. tempt might 447. One therefore S.Ct. circumstances, certain well-defined suspi quantum to conclude that the ed search or seizure such a case is not Knights’s the search of supporting cion accomplished pursu- unless it is reasonable pushed what the Court be apartment was judicial upon prob- ant to a warrant issued See, analysis. e.g., post yond special needs excep- recognized able cause.” We have at 861-862. however, rule, special tions to this “when long not think so. The Court has We do needs, beyond the for law normal need special analysis needs to be understood enforcement, proba- make the warrant and absence of triggered by complete requirement impracticable.” ble-cause from the suspicion, departure but needs, special When faced with such we warrant-and-proba- Fourth Amendment’s govern- have not hesitated to balance the Griffin, after requirements. cause ble mental and interests to assess the all, under upheld the search the Court probable- of the warrant and practicality supported analysis needs was also in the con- requirements particular cause grounds,” 483 U.S. 875- “reasonable text.”) (quoting Griffin, 483 U.S. 3164, and Scalia Justice 3164) (citations and additional for the analysis opinion of his opened T.L.O., omitted); quotation internal by observing: Court (de- 8, & n. 105 S.Ct. 733 U.S. at 340-42 usually require that a Although justifying we a de- scribing special needs only pursuant warrant-and-probable to a search be undertaken from the parture (and supported by proba- expressly thus in schools and warrant cause standard cause, says war- whether individualized declining as the Constitution to “decide ble be), of the ex- is an essential element permitted suspicion must we have rants needs, adopt for beyond reasonableness standard we ceptions “special when authorities.”).23 enforcement, by school law searches the normal need for supported by probable cause. ing a Judge we con- warrant Reinhardt’s dissent claims analysis analysis special with in special the result of a needs The Court's resort to needs fuse failure, trigger: departure from the warrant- product its "The and it cases is the of that such and-probable regime of the Fourth cause applied analysis even warrantless has such special triggers a Amendment is not what there was reasonable sus- cases where search analysis; departure is the result of needs picion, and T.L.O. like Griffin analysis special in which the Court needs charge, Contrary Judge this Reinhardt's purpose programmatic finds a valid understanding compatible with the Court's apart en- regime-a purpose from law search 325, Buie, Maryland U.S. v. 494 decisions in n.23. The needs.” Post at 863 forcement 1093, (1990) 276 108 L.Ed.2d 110 problem view is that courts look for with this Chimel, ("protective sweeps”), apart special need from law enforcement 752, (searches to ar- S.Ct. 2034 incident 89 only government has executed needs after 1, rest), Terry, U.S. at 88 S.Ct. 1868 392 challenged without first obtain- some search such are conducted Moreover, made the muster when Knights clear purposes.24 law line at enforcement to draw the prepared was not Court threshold-at least suspicion a reasonable B to conditional releasees. it comes not when left unre contrary, expressly it To the upon to are not the first court called We special whether needs question solved the address this unresolved issue. Confronted suspicionless searches analysis controlled challenges to the federal DNA Act at all: probationers cir analogues, law our sister and its state peers cuits and the states have divided probation whether the We do not decide analytical approaches in their before —both diminished, completely condition so spe Supreme and after the Court’s recent eliminated, expec- Knights’s reasonable hand, the cial needs decisions. On one ... that a search tation of Second, Circuits, Seventh, along and Tenth in- officer without law enforcement variety courts and with a of federal district would have satis- suspicion dividualized Courts, Supreme have at least two state requirement of fied the reasonableness under a upheld DNA collection statutes Amendment. The terms of the Fourth analysis (though always special needs permit such a probation condition totality that the ruling possibility out the search, but we need not address might validate the circumstances constitutionality suspicion-less need). special search absent some See search because the search this case (7th Berge, Green v. 354 F.3d supported by suspicion. was reasonable Kimler, Cir.2004); v. United States (10th Cir.2003); at 120 n. 122 S.Ct. 587. The F.3d Roe v. Id. Marcotte, (2d Cir.1999); Knights’s interpretation express rational 193 F.3d 79-82 Justice, regard Dep’t is that-without to the v. reservation Vore (D.Ariz.2003); prior F.Supp.2d Court’s decisions Edmond and 1133-35 Comm’n, entirely open Miller v. Ferguson remains U.S. Parole —it (D.Kan.2003); suspicionless F.Supp.2d whether searches of question 1175-78 Sczubelek, pass F.Supp.2d conditional releasees constitutional United States searches). (pat-down post understanding at 863 n.23. As our needs doc- Cf. already trine. explained, we have has Court justified each of those searches with reference recently presented oppor- 24. We were with an goals-primarily to non-law enforcement offi- tunity question open by left address 822-823; safety. supra cer see also Knights. Crawford, At issue in United States v. Buie, 327, ("A at 494 U.S. 110 S.Ct. 1093 (9th Cir.2004) (en banc), 372 F.3d 1048 was 'protective sweep' quick limited constitutionality suspicionless of a search premises, search of incident to an arrest and pursuant conducted standard California safety protect police conducted to officers probation parole term almost identical to others.") added). (emphasis or Given its ea- However, Knights. the one at issue in we did "manufacturing] gerness to eschew neat cat- not resolve whether the was constitu- search names," 853, egories post with clever objection judges, tional. Over the of five see preference grouping for all warrantless J., (Trott, concurring), id. at we 1062 instead large category searches "into one of cases decision, purposes for of our but "assume[d] " needs,’ id., involving 'special it is odd that decide, need[ed] not and that the d[id] Judge recognize unlawful,” Reinhardt's dissent does not (ma- parole was id. at 1053 search generally that these searches —which are con- jority opinion), and resolved the case based suspicion, ducted with some level of but ulti- solely analysis pursuant on an attenuation Harris, 14, mately justified by reference to a non-law New York v. 495 U.S. 1640, goal easily with Id. at enforcement reconciled 109 L.Ed.2d 13 1054-59. —are

831 (E.D.Wash.1993); Landry v. Attor v. States (D.Del.2003); 1493 United 315, 319-23 General, 336, 343-48, 709 ney 1142, 429 Mass. 1165-69 F.Supp.2d Reynard, 220 State, Martinez, v. (1999); Gaines 116 v. 276 N.E.2d 1085 (S.D.Cal.2002); State 359, (2000); 166, P.2d 171-73 State Nev. (2003); 998 769, 527, 771-75 P.3d Kan. 78 Commonwealth, 654, v. 1076, 259 Va. Olivas, Johnson 73, P.2d 122 856 v. Wash.2d State, v. (2000); Steele, Doles 769, 779 529 S.E.2d v. (1993); 155 Ohio State 1085-86 (Wyo.1999); In re 315, 1127, P.2d 317-20 994 659, N.E.2d 1132-37 802 App.3d Action, 187 County Maricopa Juvenile 354, D.L.C., 370- In re (2003); 124 S.W.3d 496, (1996); 419, P.2d 500-01 Surge, 94 P.3d Ariz. 930 v. (Tex.App.2003); State 73 Adams, 243, v. Cal.App.4th 9 People 115 1551561, (Wash.Ct.App. *7 345, 2004 WL (2004); L.S. v. 170, 180-84 2004). Cal.Rptr.3d 12, July (2001); State, Peo 1004, 1006-07 805 So.2d contrast, Fifth Cir Fourth and By Calaban, 293, v. Ill.App.3d 272 208 ple cuits, Judge, numerous Circuit a Seventh (1995); 588, 532, 591-92 649 N.E.2d Ill.Dec. courts, variety of and a federal district Gammon, 699, 704- Cooper v. 943 S.W.2d compulsory approved courts have state 345, Surge, 94 P.3d (Mo.Ct.App.1997); 05 a traditional assess under profiling 1551561, July (Wash.Ct.App. *7 2004 WL to gauged of reasonableness ment v. also United States 12, 2004); Lifsh cf. Green, tality of the circumstances. (2d Cir.2004), itz, 158, 164 & 165 363 F.3d (Easterbrook, J., con 354 F.3d 680-81 amended, 173, 180 & 181 369 F.3d Jus Dep’t v. U.S. curring); Groceman Knights “[d]ispens[ed] (explaining (5th Cir.2004) tice, 411, 413-14 354 F.3d be previous distinction Court’s] [the with Woods, v. curiam); 329 Velasquez (per probation for undertaken tween searches Cir.2003) curiam); (5th (per 421 F.3d and, investigative purposes, ary and for Murray, 962 F.2d Jones v. 306-07 distinction, ‘special needs’ Goord, 2004 v. (4th Nicholas Cir.1992); for re articulated justification Griffin (S.D.N.Y. Jun *2-*6 WL suspicion required level of ducing the Stegman, 295 v. 2004); United States searches,” concluding probationary Pad (D.Md.2003); F.Supp.2d 548-50 “[pjrobationary searches —whether Ferrero, 1343- gett v. F.Supp.2d 294 pur probationary enforcement for law Meier, v. (N.D.Ga.2003); United States 44 Knights if acceptable under poses —are CR97-72HA, Dist. LEXIS 2002 U.S. No. (or poten suspicion upon reasonable based Lu United States v. (D.Or.2002); 25755 standard)”).25 tially a lesser CR98-480-02HA, Dist. jan, No. 1995 that our own Finally, observe v. we Shelton (D.Or.2002); 25754 LEXIS Oregon, 59 F.3d v. (W.D.Wis.1996); in Rise Gudmanson, decision F.Supp. 1048 constitutionality (9th Cir.1995), upheld the Erickson, F.Supp. ger v. Kru by apply- collection statute Kan (D.Minn.1995); state Vanderlinden the circumstances totality of (D.Kan.1995); pure sas, Sand ing F.Supp. 1210 of the methodo- (E.D.N.C. resolution Coman, analysis. Our F.Supp. 496 ers v. by Knights, open left logical question, Eikenberry, F.Supp. Ryncarz v. 1994); 1130, (E.D.Cal.2002); 1135-40 F.Supp.2d 228 knowledge, only judges two 25. To our —be- Raines, County course, Cir sides, Montgomery majority three- Maryland of the v. the case, (January see this judge panel first heard Case No. 98303 that Criminal cuit Court 1095, Kincade, va- F.3d 28, 2004), published v. 345 summarily United States vacated with reh’g granted, F.3d en banc 354 cated and WL follow, 2004 A.2d opinion to — 853 Cir.2004) (9th invalidated 13, 2004). (Md. July —have Miles, United States collection statutes. squarely implicates legitima- addressing constitutionality therefore cases the parole and its cy precedent probation recog of our own method. searches-thus nizing constitutionally significant distinc Ill tion between searches of conditional re- general public, leasees and searches of the precluding possibili While not laying for a jurispru- framework ty satisfy that DNA Act could the federal dentially analytic sound today division between special analysis, needs we reaffirm suspicionless these two classes of continuing vitality of Rise—and hold searches. totality Ferguson, at 79 n. that its reliance on a of the circum (“[W]e agree S.Ct. 1281 analysis uphold compulsory petitioners stances profiling properly of convicted offenders both read as limited Griffin comports Supreme probationers with the Court’s recent the fact that have lesser precedents appeal in expectation and resolves this con public than the requirements 874-75, cert with the of the Fourth large.”) Griffin, (citing 483 U.S. at 3164).26 Amendment. course, 107 S.Ct. Knights, And affirmed post-Edmond, post-Ferguson A possibility that conditional releasees’ di stressed, expectations As minished of privacy may we have neither Edmond nor Ferguson suspicionless justify judicial condemns sufficient to assessment parole conditional releasees in the of a or probation search’s reason absence of a “special demonstrable need” ableness special outside the strictures of Indeed, apart 117-18, from law enforcement. analysis. Knights, Fer needs 6, 122 guson explicitly distinguished from itself 119-20 & n. S.Ct. 531.27 dissent, Ferguson In his Griffin, Justice Scalia cit- because it overlooks the facts of (a (to authored)' pointedly reiterate), ed he decision police where had initiated con- Griffin — observing office, that the search in that case was probation tact encouraged with the spurred by provided information to Griffin's probation officers to search Griffin's resi- probation police dence, search, officer and that the accompanied during them probation officers who conducted the search processed produced by the evidence accompanied by of Griffin's residence were search, where merely it then was used not police support proposition probation, revoke Griffin's but officers—in was turned "special-needs developed, doctrine was attorney's over to the district office in order to ordinarily employed, precisely and is to en- prosecute charges. Griffin on new See Grif- able searches law 870-72, fin, 483 U.S. at enforcement 107 S.Ct. 3164. Per- officials who, course, ordinarily have a law enforce- haps missing something, we are but this objective." ment 532 U.S. at precisely seems to be the kind of "en- (Scalia, J., dissenting) orig- (emphasis in tangling] probation officers with normal law inal). Ferguson majority’s identification enforcement officers in a collective effort to constitutionally significant of a distinction be- solve, investigate, prosecute crimes” expectations tween the privacy enjoyed by Judge Reinhardt’s dissent claims is forbidden probationers ordinary and those of citizens by Ferguson. Post at 859-60 n. 20. Yet the response was thus the crucial feature of its point Ferguson’s having explicitly whole presence Justice Scalia’s claim-that the of a distinguished towas harmonize the Griffin objective law enforcement is not fatal ato two cases—not overrule the latter: "Griffin analy- search assessed under needs properly Ferguson, read as limited....” Compare sis. id. at 79 n. 121 S.Ct. 1281 U.S. at 79 n. 121 S.Ct. 1281. (Scalia, J., with id. at 121 S.Ct. 1281 dissenting). portion Judge 27. A substantial Reinhardt's dissent, Judge post at simply establishing Reinhardt’s 859-60 n. dissent is devoted exchange Supreme misreads this expressly between the Fer- Court has never au- guson majority part suspicionless, arguably and dissent—in no small thorized law enforce- a lawful convic- who have suffered course, possibility “those the mere Of subject to a “broad properly are conditional tion” suspicionless searches that might infringe that pure range [restrictions] under may be sustainable releasees society,” in free rights constitutional analysis is circumstances totality of the Lile, 24, 36, 122 McKune v. 536 U.S. S.Ct. searches that such to establish insufficient (2002),28 2017, L.Ed.2d 47 no small analy under such sustainable actually are extraordinary rate of re- part due to the of the issue resolution begin our sis. We See, e.g., Pa. among cidivism offenders. of the well-established by taking note Scott, 524 Prob. & Parole v. U.S. condi Bd. and other parolees principle 357, 365, 2014, 141 L.Ed.2d 344 the full 118 S.Ct. not entitled to releasees are tional (1998); Knights, 534 U.S. at pos protections rights and panoply 587; Griffin, at 107 S.Ct. Quite to the 483 U.S. by general public. sessed 3164; Crawford, F.3d at 1069-71 recognized has contrary, Court categories with certain of undesir- releas- dence of conditional ment-oriented demonstrated, they persons. Typically, also must also able the Court ees. As we have parole permission such from their officers expressly declined to condemn seek has activities, Su- engaging specified occurrence —the such This common before searches. having squarely re- yet employment living quarters, preme changing Court's not or why legal question we have marrying, acquiring operating solved a motor or —is decide, vehicle, we are heartened community, case to traveling outside the recognition that there is a Judge Reinhardt's incurring substantial indebtedness. sitting why we en banc. good reason regularly report Additionally, parolees must Judge they Reinhardt’s dissent’s are as- parole the extent officer to whom To to the 843, 854, 855, "never,” post peri- at signed refrain of must make and sometimes 869-70, support chal- its is intended reports of activities. odic written their constitutionality, (cit- we lenge (1972) DNA Act's to the 92 S.Ct. 2593 rejected again Supreme Court Arluke, that the note Summary ing Parole Rules-Thir- A logic Knights revers- peculiar Later, Delinq. & 15 Crime teen Years —while incidentally, Judge Rein- ing, a decision (1969)). contemporary parole 272-273 More v. joined, United States hardt had see can be found in probation restrictions (9th Cir.2000). See Knights, 219 F.3d §§ 5B1.3 &5D1.3. U.S.S.G. (discussing quoting supra at 827 restrictions, parolees pro- Beyond these 587). Knights, are de- of serious crimes bationers convicted Judge spirit Knights, we note that In the right states. See The to vote most nied Court’s suggestion Reinhardt's —that Felony Sentencing Project, Disenfranchise- suspi- yet explicitly to sanction failure as 1, 3, avail the United States ment Laws in releasees searches of conditional cion-less http://www.sentencingproject.org/ able un- implicitly such searches somehow holds 24, 2004) (not- (last May pdfs/1046.pdf visited logically dubious as it constitutional —is as deny franchise to felons ing that 31 states contrary Knights's express statement deny the states probation and that 35 needed "not decide whether that the Court addition, parole). In felons on franchise to diminished, so or probation condition severely rights are their Second Amendment eliminated, Knights’s completely reasonable ("It See, 922(g)(1) § e.g., 18 U.S.C. limited. expectation of ... search person has any who be unlawful for shall any without indi- enforcement officer a law of, pun- any court a crime been convicted in suspicion have satisfied would vidualized exceeding by imprisonment for a term ishable requirement of the the reasonableness ship transport in interstate year ... or one 6,n. Id. at 120 Fourth Amendment.” commerce, possess in or affect- foreign or or S.Ct. 587. ammunition; commerce, any firearm or ing Brewer, Supreme Morrissey Court firearm or ammunition to receive or shipped transported in or observed: which has been commerce.”) (enumer- foreign interstate or li- Typically, parolees are forbidden to use omitted). correspon- ation quor or to have associations 834 determined,

(Trott, J., concurring); Ewing privately see also and undertaken-mat- 11, 25-27, California, 538 123 S.Ct. U.S. of legitimate government ters concern and 1179, (2003); Parke v. 155 L.Ed.2d 108 investigation. recognized As we nearly 20, 27, 517, Raley, 113 121 506 U.S. S.Ct. thirty years ago: (1992) (“States L.Ed.2d 391 have a valid purposes parole system give the deterring segregating ha- interest the parole authorities a criminals.”). Thus, bitual conditional re- unique invading interest privacy the may “only ... leasees claim conditional parolees supervision. their In under liberty dependent on properly observance responsibilities order to fulfill his dual special parole restrictions” that extend helping parolee reintegrate the “substantially beyond ordinary the restric- into society evaluating progress, his by law an citi- imposed tions individual and for preventing possible further anti- 480, Morrissey, zen.” at 478 & or by parol- social criminal conduct the (1972); Scott, 92 S.Ct. 2593 524 U.S. at ee, it parole is essential officer (“[T]he 365, 2014 State accords a have a thorough understanding of the degree limited of freedom in return for environment, parolee and his including parolee’s assurance that he will com- habits, personal his relationships his ply the often with strict terms and condi- persons, with other and what he is do- cases, tions of his release. most ing, at both home and outside it. It is willing parole only State is to extend be- equally important that this information upon cause it is able to condition it compli- kept up date-Many of the[ac- requirements.”). ance with certain companying] restrictions relate to mat- generally These restrictions “are meant ters which might the [releasee] other- to assure that the [conditional release preserve wise be entitled to private. as period genuine term] serves as reha- (9th Fitzharris, Latta v. 521 F.2d 249 bilitation and that the community is not Cir.1975) (en banc) (plurality opinion). harmed being large. [releasee]’s at changes These transformative wrought goals require These same justify by a lawful conviction and accompanying supervision exercise of to assure that the term of conditional release are well-recog- restrictions are in fact Griffin, observed.” Supreme Court, nized which often (internal 483 107 U.S. S.Ct. 3164 has noted that conditional enjoy releasees omitted). they citations And whether are severely constricted expectations priva- initially legitimated furthering “spe- as cy general relative to the citizenry need,” 873-74, cial id. at S.Ct. —and has a far more sub- recognized merely serving govern- “ stantial interest in invading their ‘overwhelming ment’s interest’ in ensur- than in interfering it does liberty ing that a complies with [releasee] those See, of law-abiding e.g., citizens. Knights, requirements prison and is returned to if 119-20, 587; so,” Scott, S.Ct. Fergu- he fails to do 524 U.S. at son, 1281; 532 U.S. at 79 n. 118 S.Ct. 2014 S.Ct. (quoting Morrissey, 408 Griffin, 3164; 2593), U.S. at 483 U.S. at S.Ct. once such noticed, Crawford, (Trott, see also imposed clearly strictures are 372 F.3d at 1071 (“Parolees J., they dramatically concurring) ... relationship alter the be- are a dis- tween government. group the releasee and the crete that are a demonstrable men- bottom, For at they ace to safety render all kinds of of the communities into individual choices-choices that which discharged. otherwise Parolees have privately considered, would be privately adjudicated demonstrated their crimi- against searches right privacy to a of and willingness capacity and nal conduct enough deprive capricious, right and a to seizures that are crimes serious commit yet not fin- liberty. They have searches and seizures that privacy against them of in connection serving their sentences ished at Crawford, 372 F.3d harassing.” are enjoy a presump- not Skinner, do with which (Trott, J., concurring); cf. Moreover, collec- their of innocence. tion (noting 109 S.Ct. 1402 489 U.S. at demonstrates parole tive behavior while purpose of a warrant that “[a]n essential past axiom that behavior of the truth privacy interests requirement protect is to behavior.”). future predictor the best subject to a search or by assuring citizens fun- are not the and that such intrusions that such severe seizure believe We be- relationship in the acts of disruption arbitrary or damental random along with society, and the offender that no warrant explaining tween and agents,” in- concomitantly greater government’s in part in the case at bar required was supervis- monitoring and closely terest nature of due to “the standardized releasees, suffi- turn ing conditional minimal discretion tests and the vested suspicionless searches cient sustain to administering with charged those the ab- even in person property his the[m]”).29 safeguards amply shel These “spe- non-law enforcement sence of some releasee’s residual ex ter conditional where such searches cial least need”—at to, of, privacy. and entitlement pectation Amendment touchstone meet Fourth emphasize also wish to limited We totality by the gauged as of reasonableness its holding. nature of With alarmist our circumstances. George to obligatory reference tone way holding no us be clear: Our Let 198í, Reinhardt’s dissent Judge Orwell’s di- releasees’ that conditional intimates that our decision ren- repeatedly asserts serve to privacy expectations minished subject in America to every person ders pro- ability their to invoke extinguish in- purposes, for CODIS sampling guar- the Fourth Amendment’s tections of public high schools cluding “attendees searches and unreasonable against antee universities, seeking to persons obtain or class given search or Where seizures. licenses, for federal applicants em- drivers’ satisfy the cannot traditional of searches any persons requiring form ployment, or test, a condi- circumstances totality of the identification, those who of federal may lay claim constitu- tional releasee at by airplane,” post 843- desire travel any citizen. relief-just like other tional mi- “disfavored opponents,” “political out- Further, regard and without newborns,” 848,30 post norities,” “all post reiterate analysis, we come of such vehicles,” “arres- “passengers that con- Trott’s recent observation Judge no, tees,” really, “the entire post at “retain[ ] likewise releasees ditional 864— Nothing could Post at 849. population.” against government right we re- the truth —and further from arbitrary, seizures that searches and has, decency, note, play and of fair Judge traditional ideas Trott We also exclusionary rule 28 U.S.C. [and] to other remain entitled then conditional releasees remedy provide and re- § both protections: 1983 would basic dress. a search in which such the manner Should and enumeration omit- (quotations at 1072 the con- Id. conducted shock seizure[i]s or ted). community's de- of our sense science fairness, cency so brutal [be] supra at 819 n. 9. comport 30. But see that it d[oes] offensive spectfully suggest dissenting bodily that our col- individual's interest in integrity —“a league ought recognize the obvious and society.” cherished value of our Schmer significant distinction between the DNA 757, 772, California, ber v. profiling law-abiding citizens who are 16 L.Ed.2d 908 None passing through some transient status theless, firmly it is established that “the students, newborns, Ce.g., passengers in a intrusion occasioned a blood test is not lawfully adjudicated plane) car or on a significant, since such ‘tests are a common proven criminals conduct substan- whose place days periodic physical these tially heightens government’s the interest experience examinations and with them monitoring quite properly them and car- quantity teaches that the of blood extract lasting consequences simply ries do minimal, ed is people and that for most the simple having not attach from fact of the risk, procedure virtually involves no trau born, school, going public been or to or ” ma, Skinner, 625, pain.’ or 489 U.S. at Green, riding in a car. See also 354 F.3d Schmerber, (quoting 109 S.Ct. 1402 384 (Easterbrook, J., at concurring).31 679-81 771, 1826); at U.S. see also Win ston, (ob 470 U.S. 105 S.Ct. 1611

B serving “society’s judgment that blood mind, With this framework in we can tests do not unduly constitute an extensive now appraise the reasonableness of the imposition on an personal pri individual’s federal compulsory pro- DNA Act’s DNA vacy bodily integrity”); Yin v. Califor filing of qualified federal offenders. nia, (9th (Rein Cir.1996) 95 F.3d 870 evaluating totality the of the circum- J.) (“In hardt, world, today’s a medical stances, degree we must balance examination that does not include either a which profiling DNA interferes with the urinalysis blood test or would be unusu privacy qualified interests of federal of- al.”). Indeed, Supreme Court ob against significance pub- fenders of the nearly years ago served 50 blood that”[t]he lic profiling. interests served such procedure test has become routine in our Texas, 47, 50-51, Brown v. U.S. everyday life. It is a ritual (1979). going for those S.Ct. 61 L.Ed.2d 357 military

into the service as well as those applying for marriage Many licenses. col leges require As we recognized, supra have at 821 n. such tests before permitting 15, compulsory implicate blood tests literally entrance and millions of us have Indeed, already Thus, recognize our fingerprint cases such involves evidence. in the distinctions. As we noted in Rise: context, fingerprinting there exists a consti- gathering fingerprint evidence from tutionally significant distinction between persons" sufficiently sig- "free constitutes gathering fingerprints per- from free expec- nificant interference with individual guilt sons to determine their of an unsolved privacy tations of that law enforcement offi- gathering criminal offense and the of fin- required cials are to demonstrate that gerprints purposes for identification from cause, probable have least articula- persons custody within the lawful suspicion, ble person believe state. committed a and that criminal offense Rise, (citations 59 F.3d at paren- 1559-60 fingerprinting negate will establish or omitted). course, theticals Of the distinction person’s connection to the offense. Never- case, greater Rise identified is even in this as theless, everyday "booking” procedures implicates only the DNA Act rights routinely require merely even the accused identification, provide persons convicted fingerprint regard- felons—not "free or even investigation less of whether of the crime mere arrestees.” Id. at 1560. of one is convicted Rise, person “[o]nce ... same through the voluntarily gone of- predicate included of the felonies Brei donors.” becoming blood routine Act], identity his under [the 77 fenses Abram, thaupt of state interest a matter pa For has become 1 L.Ed.2d expectation any legitimate lost especial he has releasees supervised rolees de- identifying information custody have in the while who ly—individuals F.3d at sampling.” 59 more severe blood subject to much rived from lawfully been Groceman, at 413- 1560; 354 F.3d privacy than also corporeal see of their intrusions Jones, trained 14; F.2d at 306-07.32 conducted draw blood sterile therefore and who professional, medical amici supporting his Both Kincade and reduced substantially prison leave gov- because protest passionately exposure-the such sensitivities samples destroy blood ernment does in bodily their breach of compelled Act’s such and because profiling DNA drawn for Bell v. the less offensive. is all tegrity conceivably could be samples therefore 39, 99 & n. 558-60 Wolfish, information or oth- private more mined for (1979) (uphold 1861, L.Ed.2d 447 future, present- in the misused erwise of cavity body ing suspicionless profiles of DNA generation ly legitimate “must male inmates during which inmates of far by the irretrievably prospect tainted spread to over and bend genitals [their] lift per- of future consequential invasions more inspection [and for visual buttocks [their] dissent Judge Reinhardt’s privacy.33 sonal of anal cavities vaginal t]he wherein the light maintains that likewise visually inspect also inmates female por- CODIS possibilities “nightmarish” ed”). act immediate- tends, must post at we de- time, profile DNA the At the same wolf the program-before ly to halt sample blood from the defendant’s rived fold, Post at than after. rather enters the of the defen- only a record establishes 844. infor- personal identity dant’s —otherwise raised amici concerns can offender qualified in which mation indeed his dissent are Judge Reinhardt lawfully once right claim no them ones, do not dismiss and we weighty (indeed, offense qualifying of a convicted the fact beyond But lightly. into booked lawfully arrested and once protections provides Act itself in DNA For, recognized custody). as we state samples it to allows storage of government’s argument response to this 32. Kincade's —that required personal medical information persons "retain[] been virtually free have all citizens, retaining identity potentially at some up give their of its to evidence thousands time, legitimately may claim yet biological still for point in secrets to those citizens’ access testing— compulsory end, DNA exemption from au- state long, whatever and to however have suffered Those who misses mark. & Advo- Protection see fit.” Amicus thorities interest in their lose an lawful conviction Inc., as "it is inevitable cacy, cautions well-recognized as degree suffi- identity to a advances, point, [DNA technology at some permanently cient to entitle purposes with- other for samples] will be used of their identi- verifiable record maintain a to knowledge individu- consent out the its merely sporadically to demand ty; not Privacy Electronic And amicus al tested.” independently lawful condi- production under "soon, not if predicts that Center Information tions. what request access already, will scientists preexisting goldmine as [a] serve would for the District Amicus Public Defender instance, data for their research.” Columbia, starkly warns that misuse,34 job against compulsory such our is limited to profiling qualified federal resolving constitutionality pro- offenders can be described as mini- us, gram designed before as it is and as it mally invasive—both in terms of the bodi- system In implemented.35 has been our occasions, ly intrusion it and the informa- government, base courts decisions not on lawfully produces.36 tion it fantasies, Hollywood post dramatic cf. concretely particularized but facts developed in adversary the cauldron of the contrast, the interests furthered process and reduced to an assessable rec- the federal DNA Act are undeniably com- If, aligned ord. amici Kincade’s pelling. By establishing a means of identi- insist, Judge Reinhardt’s dissent fication that can be used to link conditional when, program permits some future releasees to crimes committed while parade oppo- of horribles the DNA Act’s are at large, compulsory profiling unregulated nents disclosure of CO- fear — “ society’s serves ‘overwhelming interest’ profiles private parties, genetic DIS dis- in ensuring parolee that a complies with crimination, state-sponsored eugenics, and (whatever means) requirements th[ ]e his [of it and is release] the use of CODIS prison returned to if he “quite literally, somehow fails do so.” po- eliminate Scott, litical opposition,” post at U.S. at 847—we have S.Ct. 2014 every (quoting that respond Morrissey, confidence courts will 408 U.S. at 92 2593). appropriately. currently As structured S.Ct. The deterrent effect of such however, implemented, and see, Roe, the DNA profiling,37 Act’s e.g., 79; 193 F.3d at 14132(b)(3) (strictly crime, §§ 34. See 42 U.S.C. committing limit- terred from but not ing permissible profiles the thinking seriously enough uses of DNA and "to they realize that samples) (providing stored long & 14135e are safe leaving criminal as avoid DNA penalties fact, claims, improperly for those who disclose or evidence at the scene.” In he profiles samples). receive theory DNA or stored the especially deterrent is "far fetched” knowledge because recidivists' particular, pause 35. In we to note here that the fingerprints authorities have their does express we opinion legality no on the —consti- not seem to committing deter them from ad- tutional or otherwise—of the so-called "DNA ditional crimes. Kincade, amici, dragnets" aligned cited his problem that, suggestion The with this Judge and Reinhardt’s dissent. (which fingerprint unlike evidence can be ef- fectively by wearing gloves), masked there is factors, Beyond 36. these we note that condi- simple way no leaving to avoid DNA evidence clearly tional releasees are informed of the at the scene of a per- crime. Just as DNA requiring condition them to submit to com- blood, semen, saliva, meates it is recover- pulsory profiling, reducing DNA thus further able from epidermal hair and cells—which any expectation privacy they may otherwise sophisticated even the most criminals cannot enjoy minimizing and further the intrusive- help but leave Techniques behind. first devel- Knights, ness of the search. See 534 U.S. at oped in Britain have allowed scientists to ("The probation 122 S.Ct. 587 order generate profiles just DNA from 30-50 cells' clearly expressed the search condition and material, genetic worth of and a new crime Knights unambiguously was informed of it. planned lab City expects for New York probation significantly condition thus di- generate profiles culled from as little as 6 Knights' minished expectation reasonable genetic cells’ worth of material collected at privacy.”). nearly every the scene of crime committed 37. argues Kincade theory city-including the deterrent all-too common non-violent profiling logical fallacy: property rests on a burglaries offenses like home potential thinking Dewan, seriously criminals will be auto thefts. See Shaila K. As Police enough implications DNA, about profil- of DNA Extend Smudge Use Trap Could ing Times, for they might their Thief, actions that be de- May N.Y. 2004.

839 society, members of our Jones, productive 4; lives as n. Rise, 1561 & F.3d at goal sys- of our society’s fostering rehabilitative 311, similarly fosters at F.2d profiling release. Such recidivism. reducing tems conditional interest enormous society in his Craw- into helps protect highlighted likewise Judge Trott As among concurrence, re-arrest conditionally rates of released offenders are which ford astounding, probationers oper- to the attributable by reducing crime parolees J., (Trott, concurring); pro- F.3d at 1069-70 like programs release of limited ation Court, too, frequently has Supreme Rise, at 1561. 59 F.3d parole. bation recid- need reduce pressing solving stressed a foundation by laying And See, population. among the offender ivism successfully de- are not crimes that those 25-27, 123 S.Ct. at U.S. Ewing, 538 e.g., profiles, of DNA by the collection terred 84, 103, Doe, 1179; 538 U.S. Smith provides means DNA Act both (2003); L.Ed.2d compliance such individuals’ monitor 32-33, 122 S.Ct. McKune, at 536 U.S. supra at of their release —see the terms 120, 122 S.Ct. at 2017; Knights, pain minimize helps n. 3—and 817-818 878, 880, 875, 876, 587; Griffin, 483 offenders sow suffering recidivist contributing to Finally, our communities. crimes, profiling past solution bring helps offenders qualified federal of crime who victims to countless closure knowledge in the have long languished sub- releasees’ light of conditional large. To- remain perpetrators priva- expectations stantially diminished these interests weight of gether, intrusion occasioned cy, the minimal monumental.38 overwhelming so- and the sampling, blood by the clearly furthered interests so cietal intimately relat- are also These interests con- from DNA information collection of re- conditional purposes of the core toed that offenders, conclude we must victed offenders rehabilitating convicted lease: fed- qualified profiling compulsory DNA victim- society from future sheltering to- reasonable under offenders is eral 119, 122 at Knights, 534 U.S. See ization. Therefore, tality circumstances.39 365, Scott, 587; at S.Ct. 524 U.S. S.Ct. every oth- ourselves today realign we 880, 107 & 2014; at 875 Griffin, 483 U.S. have court to appellate er state federal 3164; v. Jack- also United States see holding issues-squarely Cir.1999). considered these (9th As son, 189 F.3d require- DNA Act satisfies help to steer deterrent, can profiling DNA Fourth Amendment. law-abiding ments toward releasees conditional application of the universal We note 39. the CODIS might observe that We further offenders qualified profiling to federal DNA just as help can absolve innocent database any particular any claim precludes guilty. For inculpate easily as it can pursuant to the Act out carried wrongly- undoubtedly is true that it while harassing. supra arbitrary, capricious, or voluntarily DNA test- can submit accused 834-835; Crawford, at 372 F.3d also see J., arise, CODIS need use ing should the recog- (Trott, concurring). weAs potential sus- thousands of promptly clears Rise, which "the a case in this is nized in ever be- from preventing them pects thereby contributes — statute [the] evenhandedness "advancing the position, and ing put in that reasonableness,” "by en- F.3d at its prosecuting overwhelming public interest in not be or- will suring extractions that blood Rise, (em- illegitimate purposes.” randomly at 1561 or for accurately," 59 F.3d dered crimes at 1562. Id. expeditiously. original), phasis Charleston, IV 532 U.S. 81 n. 121 S.Ct. (2001) 1281, 149 L.Ed.2d 205 harmonized compulsory profiling DNA con- Because in the a suspicionless context of Griffin pursuant ducted to the federal DNA Act Supreme search. Thus the Court has no violation of Kin- would have occasioned special per- shown that the needs doctrine rights, cade’s Fourth Amendment mits the search in this ease.1 judgment accompanying sentence of the district court are by person The deterrent felt on super- vised participate release who must in the

AFFIRMED. program and the database CODIS special serves the of a supervised needs GOULD, concurring: Judge, Circuit system. release succinctly, Stated agree majority I with the Thomas program likely to deter future I Kineade’s conviction should be affirmed. supervised crime of the releasee it because separately write because I believe that we increases the person chance that a on su- should affirm “special under a needs” theo- pervised caught release will be if he or she ry totality rather than the of the circum- commits a new crime. Stated another theory. pose stances I further a caveat on way, the Supreme Court’s reluctance to properly the limits of what canwe decide apply special analysis needs to endorse today. warrantless searches aimed at general law against enforcement applying cautions this I general doctrine to law enforcement aimed past crime. It does not mean that majority affirms based extension analysis needs cannot applied of United Knights, States v. DNA collection from supervised those on (2001), 151 L.Ed.2d 497 purposes release with the to deter future does not reach the issue whether the Su- crime, give a tool to avoid consecutive or preme “special Court’s needs” doctrine repetitive release, crime on supervised sustains the search. I affirm would based and, occurs, when such crime to let law on the “special monitoring needs” of con- enforcement act to return the releasee to supervised victs on deterring release and prison custody practicable. as soon as their possible Each recidivism. method of goals These lie at the heart of analysis supervised support Supreme has in Court release, properly which reintegra- doctrine aims at support from our sister cir- tion of the my through cuits. But in releasee view it would be deterrence. better special This special supervised follow the need of approach needs be- release cause looks with it extant forward to crime in precedents control. the future while Wisconsin, release; v. the felon is on supervised use Griffin (1987), L.Ed.2d 709 held CODIS past database to solve parolees may subject state be to a crimes is incidental to special the and for- warrantless search special ward-looking based on a penalogical justi- need that theory. needs Ferguson City v. program.2 fies the That such deterrence Knights, 1. Supreme open Judge the Court left Reinhardt in dissent at footnote 17 argues supervised that even if suspicionless parolee whether a deterrence of search of a goal, releasees is the ultimate the immediate was reasonable under the Fourth Amend- objective get of the search is to evidence of totality ment's analysis. circumstances the past agree. Increasing crime. I do not Knights, 534 U.S. at 120 n. 122 S.Ct. 587. crime, solving key likelihood of pur- future he was demanded. While his DNA suspicionless when permitting need special is a release, special there is a supervised cogently is on has been parolees DNA extracted and concurring to have his in his need Judge Trott advanced in the database. This Crawford, 372 stored CODIS v. in States opinion United Cir.2004) (9th (Trott, deterring penalogical purpose serves 1048, 1066-1077 F.3d crime while on committing from a new in the context him J., concurring). applied As release, of course it will extraction, special theory supervised this of DNA him if so catching of our he does by three also aid adopted been has need Berge, 354 we do not have notwithstanding. v. What See Green sister circuits. (7th Cir.2004); fully paid States has petitioner United us is a who F.3d before (10th Kimler, society, Cir. has com- debt to who 335 F.3d his or her Marcotte, term, 79-82 2003); 193 F.3d or her and who Roe v. served his pletely case, (2d Cir.1999); Opinion Judge system. also In that penal see left the has (listing other identify at 830-831 to maintain need that I special O’Scannlain conclusion). this have reached the record of gone, courts the DNA is but database is not. DNA the CODIS felon’s persua- most authorities Finding these supervised re- on previously Once those conclusion as sive, I the same reach their debt to wholly cleared lease have judgment. in the majority, I concur raised, may society, question be II Al- entry erased?” the CODIS be “Should counter-intuitive to might it seem though do not emphasize what we I also write to glean- once record law enforcement is now on Thomas Kincade today. decide lost, ais substantial might ed there release, in that status and was supervised law Act, the state’s interest in goal goal is to vindicate deterrence pose the DNA serves enforcement, person profiling a on su- DNA supervised release. The heart of at the my as super- view is best seen applicable pervised release in to those Act was made release, goal. goal, I public at That as opposed serving to the a different main vised it, Congressional through demonstrating intent deterrence. large, is rehabilitation see through also misses Judge in his dissent to ensure successful rehabilitation Reinhardt grasp "special all-or-nothing approach at a to the I do not deterrence. the mark in his Kincade; justify search of straw to 19. Because circum needs” Act in footnote recognize the need precisely, I has com more a releasee that arise when stances Congress supervised longer has identi- release that pleted supervised and is no release ap- Supreme Court has justice system fied and are not now before the criminal us, legality proved. definitively we cannot discuss applica beyond its Act immediate of the DNA flair, Reinhardt, advocate’s Judge presented. case now to Kincade in the tion made, point which I too much into reads Amendment, Indeed, we First outside of the my with Dr. quotes, article co-authored he challenges to lightly entertain facial do not Stern, Catastrophic Threats entitled Simon Valley & Miss. Congressional acts. Yazoo Amendment, 77 Cal. L.Rev. S. and the Fourth Co., Vinegar R.R. v. Jackson (2004). takes a That article 814 & n. 160 (1912) pre (generally 57 L.Ed. 193 special doctrine approach to needs flexible a statute’s constitu cluding consideration of my analy- wholly with that I think consistent applied facts of other tionality to the spe- noted that the we sis here. While there Fallon, al., cases); and et Hart H. Jr. Richard indirectly arises from cific deterrence and the Federal Courts Wechsler’sThe Federal ordinary is not the criminal prosecution of ed.2003) (5th (noting System 180-84 point there prosecution, our of a main aim adjudi generally refuses to Supreme Court controlling determining bearing no on has by challenges). The dissent errs cate facial ap- The DNA Act purposes the DNA Act. present facts not here focusing overmuch on prosecuted. only person has been plies after a Thus, ed. main prosecution, where the unlike a privacy proper interest at stake.3 a ished his or paid her term and has his or presented, case where this issue is we society.4 her debt to Once the weigh society’s need to presumably would sample need for the DNA gone, has does of the benefit from retention DNA records government have sufficient reason to person’s right, of a in a against felon sample retain the in order to overcome the sense, privacy. generally classical to See privacy felon’s interest? Kincade’s case Brandéis, Louis Samuel Warren & The upon does not call ques- us answer this Right Privacy, Harv. L.Rev. I express tion. no question view on the (1890). age In our which databases can the future retention of a felon’s DNA after using super- be “mined” in a millisecond supervised terminated, release is nor do I computers, fast in which extensive infor- majority opinion understand the express can, could, potentially mation glean- question. view on this (even “junk” ed from DNA DNA cur- used), rently in which this data can REINHARDT, Judge, Circuit easily be stored and shared govern- PREGERSON, KOZINSKI, whom worldwide, parties ments and private the WARDLAW, Judges, join, Circuit real, threat of a privacy loss of even if dissenting: yet we cannot full scope discern the “They give that can up liberty essential problem. A related concern was voiced safety obtain little deserve neither ago, more than decades long two before BeNjamin FRAniclin, liberty safety.” nor profiling. general- advent of DNA See Pennsylvania HISTORICAL Review of Miller, ly Arthur R. The Assault on Privar (1759). cy 24-54 monumental in- With Today approves this court the latest in- technologies, creases in Professor Miller’s stallment in government’s the federal ef- alarm technology’s priva- about on assault fort to construct comprehensive cy national seriously pondered. must be A nice database into which basic question, properly if and when information con- presented, cerning would be American samples, though whether DNA citizens will be entered rest of their lives'— n lawfully obtained from a felon and stored for the super- release, may vised properly although be retained no majority exists with respect to after the felon fin- legal justification has for this conclusion.1 course, Fingerprints, 3. routinely are samples, though main- that these DNA taken for use taken, soldiers, tained lawin enforcement files identifying once remains of fallen now perhaps arguable analogy this is an routinely for used in law enforcement investi- But, Ham, fingerprints, databases. gations. unlike Army Patricia A. An DNA stores and Suspects: reveals massive History amounts of The Constitutionality individual, personal, private data about that Military’s Repository and Its promises and the advance of science to make Access Purposes, Law 2003- for Enforcement 1; revealing stored DNA more Army in time. AUG Fed.Reg. Law. DNA, fingerprint (Oct. 3, person, 1997). Like identifies a Possibly practice such a DNA, fingerprint but says nothing test, unlike justifiable balancing under a but in a health, person’s propensity about the par- proper case the issues will be con- disease, gender ticular race and express characteris- fronted. I proper no view on the tics, perhaps propensity even question. for certain resolution of this conduct. plurality 1. judges, consists of five includ- author, might A similar ing issue be raised former joined Judge who have sample soldiers who had a DNA opinion. taken for They adopt sweep- O'Scannlain's purposes test, of ing totality "identification of human re- of the circumstances as I will mains,” might and who explain, blatantly concerned to know eviscerating the constitu- suspected of harassment merely shameful and to authorize claim My colleagues communist-sym- alleged of certain and profiling communists “compulsory the offenders,” of the twentieth federal in the middle conditionally-released pathizers Back- Analysis by the DNA on the centrali- century depended largely as authorized (“DNA Act”), Act of Elimination log about count- of information collected zation (2000). 114 Stat. Pub.L. No. non-communist members numbers of less possi- if it were lucky indeed would be We vio- by means that citizenry our of —often opinions. their the effect of to so limit ble The same the Fourth lated Amendment. they espouse, For, rationales the under a few dec- Raids true of the Palmer was all Americans will plurality’s, the especially roundup Japa- of and of our earlier ades later, of risk, rather than sooner be at placement Americans and their nese permanently having samples our Two. during World camps internment War cyberspace, and in federal on file placed Solove, Digital Daniel J. generally worse, subjected to being of perhaps even Dissipation Fourth and the Dossiers of pro- programs governmental various other L.Rev. Privacy, 75 S. Cal. Amendment conducted viding suspicionless for searches purposes. enforcement for law benign inten- with governments Even nor precedent Court Supreme Neither regulate or proven unable have tions Amendment of rule Fourth any established of information wisely vast stores use concur- today’s plurality supports law prob- citizens. The regarding their collect ap- the Court Never has opinion. ring to col- allowing government the lem one we confront like the proved of a search information private maintain lect designed search today: programmatic of our lives intimate details the about relating maintain evidence produce charge bureaucracy most often the yet con- wrongdoing, ordinary criminal regulated information poorly “is of individualized any level without ducted pro- This has susceptible [] to abuse. approved has the Court Never suspicion. it alters the per- social effects because found construction government’s government power built from database between governmental balance manent and de- to a exposing individuals suspicionless people, general investigation in the vulnera- harms, increasing for use their signed series criminal offenses. prosecution degree power decreasing bility and lives.” Id. their they exercise over carries program of such a approval to be information such To allow in allow- inherent dangers all of the with it extrac- compulsory through the collected collect and store ing of non-con- bodies blood from the tion in a central- its citizens information about contrary to the runs senting Americans terrorized Edgar place. J. Hoover ized country was founded. this on which values rights movement of the civil leaders judgment endorse colleagues who My he collected exploiting the information the search despite fact so surveillance do government’s files. Our his consequences adverse have suspicion would also drastic requirement individualized tional Five protections. judge, One Fourth Amendment searches. for our for law enforcement basis, compose a different Judge concurs who judges, Gould the same number necessary votes to affirm. making judges join six those plurality, dissent. Four rationale, "special fifth, needs" Judge Gould’s author. The opinion, including the this test, than the limited its face more is on Hawkins, similar reasons. Judge dissents application here its plurality’s, but in the end in they approve, airplane, just and the manner regime Already, name a few. all it, they approve encourages very which the members of the Armed Forces must sub- government authority involuntary centralization of mit to the extraction of blood repeatedly purpose that has resulted the sacri- for the of providing samples. DNA Indeed, fice of our liberties in the name of law given govern- the “monumental” Proper attention to consti- ment “insignificant” enforcement. interest and the inva- history privacy by tutional doctrine and would have sion of plurality, described the contrary led to a result. it is imagine balancing difficult to that the it performs interests then would not justify suspicionless To the au- searches justify the government’s including data re- Act, thorized plurality garding system all Americans re- away sweeps traditional Fourth gardless expectation of the level of the requirement Amendment law enforce- privacy they might possess. This is ment officials conduct searches when what the our Framers of Constitution in- predicated suspicion on some level of tended. being the individual searched has commit- In place ted a crime. of this time-honored The sixth vote for judgment is principle, plurality employed has an based on a narrower and far different le- opaque “totality of gal theory the circumstances” test. respectable more “special —the ante It should come as no Unfortunately, needs” doctrine. my re- standard, shock that under this malleable spected colleague opts who for the my colleagues have concluded that needs standard obliterates the distinction forcible extraction samples of blood from between law enforcement and non-law en- probationers parolees, perma- and the forcement purposes doing and in so under- profiles nent maintenance of protections constructed mines the the Fourth Amend- databank, samples from in a afford, those federal ment designed almost to the constitutionally reasonable. The “totali- same extent as plurality. those ty” of the upon by circumstances relied Thomas Jefferson once warned that plurality is as Those follows: who commit guard time to against corruption “[t]he expectations priva- crimes have reduced tyranny is before gotten shall have cy, 834-835, and, ante because the forc- hold of us. It is better to keep the wolf ible extraction constitutionally of blood is a fold, out of the than to trust to drawing his insignificant privacy, invasion of ante at teeth and talons after he shall have en- weight government and the tered.” Thomas Jeffeeson, Notes ON the monumental,” interest in profiling “is (William ed., of VIRGINIA Peden State ante at suspicionless searches are con- 1955). plurality has failed to heed stitutionally reasonable. warning, this opens and instead the door

Under employs, the test the plurality programs multifarious law enforcement any person experiences who in involving suspicionless reduction em- expectation his suscep- ploying legal would standard imposes no tible to having sample his blood significant extracted arbitrary limits on and invasive and included in pub- actions; effect, CODIS—attendees of plurality universities, high lic persons simply schools or asks us to power. trust those in seeking licenses, appli- obtain drivers’ employed The rationale in the concurring cants for federal employment, persons opinion, while more obedient to traditional requiring any form of federal identifica- legal concepts, would in likely the end tion, and those who desire to travel result in a similar elimination of constitu- laboratories. See just 14 state and local excessive exercise on the restraints tional and Back- Mission Statement CODIS I cannot Because power. governmental shortly enlargement began ground. Its accept willingness colleagues’ join my since. stopped and has not thereafter a limitation on dangerous and drastic so program made CODIS a Congress liberties, dis- respectfully I our individual Crime reach 1994Violent nationwide the sent. Act, which and Law Enforcement Control FBI to create a national the authorized Act and the DNA Scope The I. samples collected from of DNA database System DNA Index Combined victims, convicted scenes and crime crime prac- for all which program federal The human re- offenders, and unidentified today is not approved is purposes tical Analysis Backlog DNA Elimi- mains. See initially enact- as the one nearly as limited 2000, H.R.Rep. No. 106- Act nation DNA data- The by Congress. federal ed 900(1), DNA Act House at 8[hereinafter litigation, Com- at issue this base passage until of the It was not Report]. (“CODIS”),2 System Index DNA bined Death Pen- and Effective Anti-Terrorism vastly about more information contains (“AEDPA”), Pub.L. alty Act when it was than it did individuals more however, (1996), Congress Stat. of the A brief created. examination first “expand FBI to CODIS authorized helps development of CODIS origins and DNA Act House crimes.” include federal expan- limitless why further demonstrate legislation, this Despite at 8. Report, of this nation- scope and reach sion concluded Con- Department of Justice inevitable, helps ex- is database wide the executive yet provided had gress today’s unlikely that why I find it so plain authority to legal with sufficient branch train day and good for “this decision federal offend- samples DNA from collect Alhuright, only.” Smith enacted the Congress Consequently, ers. (1944) L.Ed. 987 “the states that Act of which DNA (Roberts, J., dissenting). super- for the responsible office probation an individual law of under Federal

vision CODIS Expansion A. The supervised release parole, probation, or from each indi- sample a DNA collect shall manner at the glance Even a brief been, is, of a convicted or has who vidual has devel- federal which the 42 U.S.C. offense.” Federal qualifying plain makes expanded oped and CODIS 14135a(a)(2). § broad and system scope samples3 from requires DNA Act CODIS is inevitable. growth future been convicted who individuals have serving all pilot program began in 1990 as 20, 2004) (last CO- [hereinafter June system visited hierarchical 2. CODIS is three-tired Background']. sharing. National Mission Statement The FBI's DIS of information (NDIS) local state and approach constitutes allows System "The tiered DNA Index par- according hierarchy, all databases highest agencies operate level in the CODIS their require- and state legal the local ticipating legislative laboratories at specific to their database. All to the NDIS have access level ments.” Id. system collect- profiles in the CODIS DNA sample as a DNA Act itself defines The DNA (LDIS) flowing to before level ed at the local fluid, tissue, sample bodily or other "a (SDIS). SDIS "al- databases operative state analysis can be which a individual on exchange states to lows laboratories within 14135a(c)(l). § carried out.” However, U.S.C. Statement profiles.” CODIS Mission See reveals, case this the record in Background, available disputed, that party has before us program.htm neither http://www.fbi.gov/hq/lab/codis/ ante, crimes.” at 816 account performance “certain federal of his of official And, notes, plurality rightly 111(a)(1) & n. 1. § duties. See 18 (making U.S.C. DNA Act of 2000 contained a narrow to, alia, illegal any person it inter offenses, qualifying including list of crimes oppose any or interfere with officer or arson, voluntary manslaughter, such as employee of the United States “while en- plurality and con- and murder. What gaged in or on account of performance mention, however, fail to curring opinion duties”); of official see also 18 U.S.C. qualifying of- the most recent list § 2116 (criminalizing the interference with 28.2, fenses, § contained at in- 28 C.F.R. any postal discharge clerk of his laundry cludes a of federal crimes that list in connection postal duties with a car or vastly ap- than the expansive more list steamboat). If an owner of a boat de- proved by the 2000 DNA Act.4 stroys his vessel order to obtain an qualifying The current list of crimes is payment, may insurance he be forced to it so broad and eclectic that is difficult to provide sample, a DNA see 18 U.S.C. name, familiarity absent an intimate with § any non-owner of a boat who code, the intricacies of the federal criminal cuts, “maliciously spoils, destroys any or any categories discernible of criminal ac- cable, cordage, buoys, buoy rope, head beyond tivities that remain the reach of fast, fast, or other fixed to the anchor or qualifying the DNA Act. The list of of- moorings belonging any vessel” will suf- compiled fenses includes crimes from more fate, 2276; § fer a similar 18 U.S.C. of. separate than 200 sections the United § U.S.C. 2281 (criminalizing .violence Code, resulting in possible States countless against platforms). maritime fixed permutations qualifying crimes. For If the examples sufficiently above do not example, one’s DNA could be stored on file government demonstrate that the federal with government upon the federal forever simply has not chosen to collect DNA sam- “willfullyinjur[ing] a conviction for or com- ples from the most hardened criminals or any mit[ting] depredation against any recidivists, likely most consider the follow- States,” property of the United such as ing sample non-exhaustive of enumerated spray painting graffiti government aon § crimes listed at 28 C.F.R. 28.2: resisting building tearing or a apart pro- bill $1 arrest, 2231; § 18 U.S.C. various forms of against perceived arbitrary govern- test disorder,” 231; § “civil § mental 18 U.S.C. policy. partic- See 18 1361. U.S.C. ipation, riot, Similarly, might promotion, an individual or have DNA incitement of a sample forcibly 2101; § if taken he interferes with 18 U.S.C. advocating the over- duties, a mailman in the course of his or throw of government, the United States forcibly opposes 2385; employee § federal on U.S.C. interference with access to required participating FBI has transportation systems, all CODIS lab- §§ 18 U.S.C. profiles by oratories 1993, 2332f, to construct DNA obtain- 2332b; development, stock- ing samples. blood chemical, piling, biological, or use of or nu- 175, 229, 831, weapons, §§ clear 18 U.S.C. say quali- 4. This is not to that the enumerated 2232a; genocide, the commission of Indeed, fying many crimes are not serious. 1091, torture, 2340A, § § U.S.C. 18 U.S.C. or § of the crimes listed at 28 C.F.R. 28.2 are crimes, 2441; § other war 18 U.S.C. threats among the most heinous crimes in federal President, 871; against § 18 U.S.C. qualifying code. Some of the more severe murder, 1111; attempted the assassination or assassination § crimes include 18 U.S.C. assault, officials, high-level §§ sexual 45; abuse and U.S.C. 2241- 18 U.S.C. the willful destruction of aircrafts and § attacks, generally, against terrorist mass 2274; with, facilities, breaking § tampering or service health reproductive into, vessel, 248; entering person’s an avia- another § interference with U.S.C. 2275-76; flight §§ attend- removal member or destruction or flight crew U.S.C. tion 46504; seizure, § interference ant, prevent 18 U.S.C. property 49 U.S.C. meat, or poultry, 2232(a); federal designed impair § intimidation of action 21 U.S.C. inspectors, poultry products jurisdic- continuing federal court’s rem 461(c), 675; any animal harming of § particular property, over a 18 U.S.C. tion officials, 18 by law enforcement used 2232(b); sexually explicit § production 1368; of kick-backs receipt § U.S.C. minors, 2260; § depictions of 18 U.S.C. employees, 18 U.S.C. public works from a any transfer of obscene material to robbery, 18 874; § theft personal minor, 1470; § interstate stalk- 18 U.S.C. 2111-12; “to conspiracies §§ U.S.C. order, ing protective or violation of a 18 threaten, any person,” intimidate or 2262; 2261A, persuading §§ or en- U.S.C. 241; right § interference with U.S.C. any to travel across state ticing individual 594; in- vote, attempts § 18 U.S.C. engage prostitution, in 18 U.S.C. lines to of the any employee command timidate or 2422; importation any § alien to the engage or not en- government to federal any purpose, immoral United States 610; § activity, 18 U.S.C. gage political 1328; § or altera- U.S.C. removal “mailing of extortion and various forms firearm, on a or tion of the serial number communications,” “making threatening a or receipt of a firearm with removed of credit” or col- extensions extortionate number, § altered serial 26 U.S.C. 5861. by of credit “extortion- lecting extensions applies The Act even to several sections 875-78, 892, 894; means,” §§ 18 U.S.C. ate long that have the federal criminal code a member of the Armed being a felon-or See, repealed. e.g., 18 U.S.C. been dishonorably dis- Forces who has been And, provided §§ in case the firearm, a possession of charged-in insufficient, the DNA Act is also list is fraud, 922(g); computer § U.S.C. or con- triggered by “attempt the catchall 1030; manslaughter, attempted § U.S.C. “[a]ny of- provision, which covers spiracy” 1113; § committed incest 18 U.S.C. attempt conspiracy is an or fense that country, 18 U.S.C. Indian Indian any foregoing of the offenses.” commit 1153; injuri- § use of a hazardous or 28.2(1). § C.F.R. an Indian on federal land or ous device permanent na power The to assemble 1864; reservation, tampering § 18 U.S.C. all offenders who tional DNA database of 1512; witness, piracy § 18 U.S.C. any crimes listed committed of the have 1651; nations, § the law of 18 U.S.C. under placed If catastrophic potential. above has delay the movement or the obstruction hands of an administration commerce, any commodity article or at the cost of liber chooses to “exalt order 1951; racketeering § various 18 U.S.C. California, 274 U.S. ty,” Whitney v. 1952(a)(2), crimes, §§ 18 U.S.C. (1927) 71 L.Ed. 1095 1962; entering post into a breaking and J., (Brandeis, the database dissenting), 2115; office, cruelty § to seamen U.S.C. or, quite repress dissent could be used of the United jurisdiction in the on vessel opposition. literally, political to eliminate 2191; States, “Shanghaiing § 18 U.S.C. in the Many qualifying offenses threat, 18 U.S.C. sailors” force that involve conduct Act are crimes in DNA 2194; person § of a vessel misuse First the exercise of closely related to within the territori- command of the vessel and as- States, rights speech to free Amendment 18 U.S.C. al of the United waters disorder, incitement, provide civil state that does not its sembly, such profiles for in the national inclusion various forms “interference” and the NDIS, database, via CODIS. See Federal are so Other offenses crimes listed above. Investigation, Bureau of NDIS Partici- broadly described that vaguely or pants, http://www.fbi.gov/ available that can be de- cover almost conduct (last visited hq/lab/codis/partstates.htm if Even the list of scribed as unlawful. 2004). ap- June The FBI has noted in the DNA Act re- qualifying offenses provingly “rapidly the states are ex- static, governments might future mains panding scope and size of their CODIS already reach to moni- use the Act’s wide hope databases” and has stated its tor, intimidate, political op- incarcerate “eventually, all 50 will all states include ponents and disfavored minorities. felony qualifying offenses” in their lists Giving us a concrete sense of how broad Investigation, crimes. Federal Bureau is, plurali- Act the reach of the current System FBI’s Combined Index currently ty opinion notes that CODIS Program: A Partnership Federal/State profiles 1.6 million DNA contains over Crime, Fighting Violent available popula- But that drawn from offenders. http://www.fbi.gov/hq/lab/codis/ bro- tion is certain to rise even without statuto- (last 2004). ehure.pdf visited June ry nearly assistance. 6.9 million indi- With legislation Recent in several states has viduals under some form of correctional authorized the federal to store supervision years, Lauren E. recent see profiles access DNA of individuals who Palla, Justice, Dep’t Glaze & Seri have been convicted of run-of-the-mill non- Statistics, Probation and Bureau of Justice violent crimes possession such felonious States, 2003, Parole in the avail- United stamps, of food see Br. of Amicus Curiae http://www.ojp.usdoj.gov/bjs/pub/ able at Public Defender Service for the District of pdf/ppusOB.pdf,CODIS has the immediate Brief], Columbia at 6 [hereinafter: PDS potential exponential for It is no growth. 36-18-24, (citing §§ Ala.Code 13A-9-91 secret, incidentally, that minorities are dis- (2003)). profiles CODIS also contains popula- proportionately represented this individuals who have been convicted of no many tion and that no sen- whites receive merely crime whatsoever but have had the tence at all for when commit offenses Louisiana, being misfortune of arrested in which Hispanics prison blacks or receive Texas, Virginia. (citing or See id. at 7 La. probation. generally time or Maec 15:609(A) (West § Supp. Rev. Stat. Ann. (1999). MaueR, Race to IncaRcekate 2003); Tex. Gov’t Code Ann. potential expansion, for howev- CODIS’ 411.1471(a)(2) (West 2003); § Va. St. er, population is not limited to the of con- (2003)). § 19.2-310.2:1 California will like- pas- victed federal offenders. Even before ly next in group-a popular be this and well- Act, sage fifty of the 2000 all states DNA funded ballot initiative is on the November adopted legislation had some form of man- expand ballot that would the State’s collec- dating samples the collection of DNA for tion of DNA samples to include arrestees. Nancy Beatty inclusion in Wildermuth, CODIS. See See John Proposition to Take Gregoire, Fears, Federal Probation Joins the DNA Privacy at Arrest Stirs S.F. Collection, 12, 2004, DNA World June at Al. California’s Chron., Fed. Proba- Today, Mississippi propositions frequently are emulated tion If jurisdictions.5 monplace gradual unless the erosion of imaginative less other protections the DNA Act’s reach Fourth Amendment now set expansion of trajectory, place (noting current it is reversed. See id. at 42^43 to follow its continues dragnets CODIS includes DNA have become increas- long will not be before misdemeanants, ingly early from arres- common since the 1990s and profiles tees, efficacy suspected questioning suspicion- criminals of these and other searches). Hansen, Unfortunately, given nation. See Mark less throughout the Jouenal, May plurality’s holding ABA ill-considered Dragnet, Congress likely government is soon interest is “monumental” and (noting at 43 authorizing infringement privacy rights DNA the is mini- approve legislation mal, juvenile simply beginning, and adult that erosion is profiling offenders arrestees). made, And, step once that not the end. undoubtedly pressure to ex-

there will even further to include pand the database B. Junk DNA and the Potential of individuals who wish to obtain profiles Expansion passports, ap- licenses6 or federal drivers potential expand CODIS’s is not con- jobs for federal or admission to plicants likely fined to its future inclusion of more universities, children who attend public categories and more persons be sub- schools, elementary secondary all public jected profiling. system to DNA also newborns, ultimately, under the ratio- ability identify increasing has adopted plurality, nale the entire amount of information about each of its increasing use of DNA population.7 The profiled subjects understanding as our of “dragnets,” police which officers encour- develop lightning DNA continues to at particular in a communi- age all individuals that speed. plurality The is correct samples DNA to local law ty provide to profiles currently DNA on file in CODIS in order to an enforcement officials assist analyses “junk are based on DNA.” See ongoing investigation despite criminal ante at 818-819. It takes comfort in the suspicion, individualized absence long fact that assumed that example type a concrete scientists have serves as junk junk DNA practices may shortly “non-genic,” which become com- DNA is consent, any driver rea- 5. California’s ballot initiatives have often with or without from Proposi served as models for other states. driving. sonably suspected drunk See Jo- (1998), § 300 to take tion Blood, Hallinan, Cal. Educ. Code seph Literally, T. Police Draw just example, bilingual one which eliminated They Fight Stop Intoxicated to Put a to replaced education in the state and it with Drivers, 24, 2004, (noting L.A. Mar. at Daily, courses, English language immersion almost Indiana, Iowa, Alaska, Arizona, Florida, immediately prototype became for similar Nevada, Michigan, passed all and Texas have legislation generally states. See Cha other legislation authorizing forcible extraction of Chandrasekhar, Bay ru A. State Buries samples). blood Bilingualism: Advocacy Lessons Learned from Bilingual Education's Recent in Massa Defeat chusetts, (2003). extending currently advocate 7.Some scholars L. Rev. Chicano-Latino Proposition So too did anti-affirma See, population. CODIS to cover the entire measure, Proposition tive action Smith, e.g., Kaye DNA D.H. & Michael E. placed tax reduction measure that drastic lim Legality, Legitimacy, Databases: Identification governmental taxing powers, itations on local Coverage, Population-Wide Case for especially regard property to taxes. supra, As noted 2003 Wis. L. Rev. Forces are all members of the Armed already passed legislation 6. Some states have samples. authorizing samples, already required provide DNA police to to collect blood only revealing in time.” Gould identifying more taken contain samples concurrence, nothing else. Id. That at 842 n.3. “fingerprint,” and DNA has been dis- understanding junk type might gov- of information What Gillis, time. See Justin puted for some eventually to extract from ernment be able Published; Com- Code Mouse Genetic junk today, Even as the samples DNA? Human Indicates parison With Genome admits, profiles “DNA derived plurality Vital, BeMay DNA” Post, “Junk Wash. may yield probabilistic STR evidence 5, 2002, (noting at A1 that studies Dec. Ante at the contributor’s race sex.” junk revealed that DNA contains Yet that seems to be a dramatic body how the information about valuable “fingerprint” understatement. The DNA and that the “instruction set genes uses likely poten- entered into CODIS has the junk is at least as DNA] within [contained tial reveal information an individ- about set, gene probably bigger”). big as the defects, “genetic predispositions ual’s Moreover, being new discoveries are made diseases, perhaps even sexual orienta- day challenge assump- the core Krent, tion.” See Harold J. Diaries Of underlying junk name-regions DNA’s tion and Data Banks: Use Restrictions Under thought “junk previously of DNA be Amendment, the Fourth Tex. L.Rev. may genic after all. See Clive DNA” (1995) (cited in 95-96 Br. of Amicus Curiae Cookson, Regulatory Found in Genes Inc., Advocacy, Protection & at 6 [herein- DNA”, 4, 2004, “Junk June Times, Fin. Br.]). Advocacy after Protection & DNA 11; Function Found Junk L.A. analysis presence can reveal the of traits 5, 2003, Times, June at A14. diseases, for thousands of known currently The fact that scientists lack which countless numbers diseases comprehend full capacity signifi- currently unknown. Protection & Advoca- junk cance of the data stored within Br., cy ominously, at 6. More some have samples Judge is irrelevant. As Gould predicted profiles that the DNA entered concurrence, criminal, engage types will in certain or concurrence, society. debt to See Gould socially non-criminal but perhaps disfa- Moreover, FBI encourages at 842. the all vored, (citing behavior. Id. 7-8 studies portions laboratories to retain of the evi- raising specter profiles that DNA they collect, samples dence see Federal might study be used to the links between Investigation, Bureau of Standards for particular genes propensity and the for ¶ Labs, 7.2, DNA Testing Forensic deviance). social http:/www.fbi. gov/hq/lab/co- available at say might To actu- profiles CODIS dis/forensic.htm, affording gov- the federal ally purposes hardly be used for such is opportunity ernment the to re-test and re- report by A far-fetched. the Office of virtually analyze limitless number of Technology [hereinafter: Assessment samples progresses. as science also (“The Congress of the has warned Brief, OTA] U.S. at 10 Act PDS also neither “possibility exists to test DNA recommends, requires, nor even destruc- Thus, acquired specifically pur- for identification samples analysis.”). tion of after as observes, poses for disease information in a data- Judge perceptibly Gould “DNA worse, base,” option may and that “[t]his stores and reveals massive amounts of time, personal, private espe- ... and become more attractive over data the advance probes promises cially types of science to make stored DNA as the number and OTA, ordinary rigors judicial free from the Genet- increase.” genetic orders See, Tests, Uniting The and e.g., supervision. Forensic Uses ic Witness: (cited by Providing Ap- America Strengthening in Protection & at 10 July 12-13). Required Intercept to and propriate Tools pressures The Advocacy Br. at (USA-PATRIOT) Act, Obstruct Terrorism produces as CODIS only increase will 272, §§ 206 Pub.L. No. 115 Stat. “hits,” crime scene linking unsolved more wiretaps), (library records profiles. (roving newly entered evidence to searches) (“sneak searches), peak” and type of maintenance of this permanent The times, pressures such untold millions of Amer- information about further than ever before icans, expand all of our citi- CODIS if not indeed about increase. zens, monumental are certain to government affords of those to intrude into the core powers II. The Reasonableness Search the heart of concerns which lie at

intimate privacy. right provides Fourth Amendment true, my colleagues people It as some of the to be secure right “[t]he houses, effects, confronted argue, today papers, we are persons, their constitutionality of question with the of the and sei- against unreasonable searches violated, the current program zures, before us. Yet and no War- shall not be database, cause, issue, it compared upon probable when CODIS rants shall but affirmation, beginnings, represents par- modest or supported its Oath describing place to be ticularly alarming whereby privacy trend searched, persons things to be and the being whit- dignity of our citizens [are] Const, “The ba- seized.” U.S. amend. IV. away by imperceptible steps. [] tled Amendment, recog- purpose sic of this may individually, step Taken each Court, of this nized countless decisions consequence. little But when viewed as security of safeguard is to whole, begins emerge a soci- there arbitrary invasions against individuals have seen—a ety quite unlike we The Fourth governmental officials. may in- society in which expres- gives thus concrete Amendment regions of man’s trude into the secret people which is basic right sion to a life at will. Mun. society.” v. Court to a free Camara States, Osborn United Francisco, 387 City County San (1966) 17 L.Ed.2d 394 87 S.Ct. 523, 528, 1727, 18 L.Ed.2d J., dissenting). And when such (Douglas, (internal (1967) omit- quotation marks constitutionality is determined policy’s ted). purposes, the Consti- To serve these it reasonable merely by whether seems that searches be generally requires tution circumstances,” “totality under the of the ap- cause and be supported probable night- fear that the we all have reason to by a warrant proved prior to execution in films such as depicted marish worlds magistrate. impartial issued will become Minority Report and Gattaca especially given the case realities. This is Requires A. The Constitution of our cur- potentially endless duration Suspicion Individualized for terror,” in the course of rent “war on Searches Law Enforcement already we have seen war-time which requirement Fourth Amendment’s expand to its The rapidly seeks by reasonable supported increase its that searches be powers law enforcement and to a warrant suspicion and particularized and authority against to take action its citizens ... implication, general all searches —was history. in our The his- deeply rooted re suspicion to retain the individualized amendment of that background torical general quirement typical contained were that our Framers’ demonstrates warrant, requirement but to make ideal to the steadfastly committed enforceable, instance, meaningful and for and searches conducted warrants general by raising required level of individual particular reasonable and in the absence of objective probable cause.” suspicion ized in a democratic were intolerable suspicion Acton, States, Sch. Dist. v. U.S. 361 Vernonia Henry v. society. See United 47J 2386, 646, 670, 115 132 L.Ed.2d 564 168, S.Ct. 4 L.Ed.2d 134 80 S.Ct. U.S. (1995) (O’Connor, J., noted, dissenting) (emphasis (1959). Henry As the Court original). warrant, in which the name general The left to be arrested was person feared blan- particular, the Framers assistance, blank, and the writs searches, of- whereby ket law enforcement inveighed, against which James Otis go ficials would door-to-door to conduct oppressive practice perpetuated the both area, every regard- in an searches of house to arrest and allowing police suspicion. (noting less of See id. that the suspicion. Police control took search on may Framers have considered blanket control, judicial since no place even “more worrisome “area searches” before a showing “probable cause” search”). general They typical than the Virginia magistrate required. was The suspicionless knew that the use of blanket adopted June Rights, Declaration investigatory searches and seizures for against practice: rebelled “subject purposes would unlimited num- warrants, whereby any general “That persons bers of innocent to the harassment may command- messenger be officer or involuntary ignominy incident to de- places without suspected ed to search Mississippi, tention.” Davis v. committed, or to seize evidence of a fact 721, 726, 1394, 22 L.Ed.2d 676 named, or persons not person plain It that “the Fourth de- particularly whose offence is not prevent meant to [such] Amendment was evidence, supported by scribed and upon personal wholesale intrusions se- ought grievous oppressive, curity citizenry.” of our Id. Maryland The Declara- granted.” jurisprudence Fourth Amendment has XXIII, (1776), Rights Art. was tion years. considerably evolved over the equally emphatic. a num- recognized, example, Court has from departures ber of reasonable philosophy

That later was reflected requirement warrant some instance the Fourth And as the suspicion required has relaxed the level of Amendment. early American decisions both before may official con- before a law enforcement show, immediately adoption after its See, Ohio, e.g., Terry duct search. suspicion, or report, common rumor or 20 L.Ed.2d “strong suspect” even was not reason (1968) (upholding “stop and frisk” adequate a warrant for ar- support upon suspicion as a reasonable rest. general exception require- to the warrant (internal ment); 752, California, v. Id. at 80 S.Ct. 168 Chimel 395 U.S. omitted). (1969) 762, 2034, 23 L.Ed.2d footnotes and citations 89 S.Ct. 685 “[T]he incident to particular way (upholding the Framers chose to curb searches conducted general exception arrest as a to the war- general abuses warrants —and

853 (1997) without (affirming, deciding explicit has even The Court requirement). rant ly, constitutionality suspi- of non- of blanket categories limited approved certain airports cionless searches at and entrances conducted law enforcement See, e.g., buildings at all. to federal when such searches any suspicion absence 606, carefully 431 calibrated meet “sub Ramsey, v. U.S. United States (1977) 1972, safety).8 616, public L.Ed.2d 617 stantial and real” risk 97 52 S.Ct. However, the existence of border searches the Warrant (upholding suspicionless in the Fourth Amendment demon longstanding right the Clause “pursuant to beyond and strates doubt that there are some sovereign protect stopping itself crossing categories of searches “for which individu examining persons property Burger, suspicion nonnegotiable.” York v. alized Verno country”); into this New nia, 2636, 673, 691, 702, at 115 107 S.Ct. 96 515 U.S. S.Ct. 2386 482 U.S. (1987) (O’Connor, J., dissenting). whether (upholding warrantless And L.Ed.2d 601 attempts catego one to manufacture neat inspections closely-regulated businesses names, ante, at beyond the need for ries with clever see 830- special as a need enforcement); 832, groups large Em them all into one Treasury law normal Raab, 656, category involving “special 109 of cases ployees v. Von 489 U.S. (1989) needs,”9 702, 1384, 103 107 (uphold Burger, L.Ed.2d 685 see 482 U.S. S.Ct. 2636, overriding suspicionless drug testing high-risk S.Ct. lesson is clear: ing when the wishes to search special customs officials as United States for normal law en individuals in order to obtain evidence of beyond need the need Miller, forcement); ordinary wrongdoing, criminal v. 520 U.S. some level Chandler 305, 323, 1295, suspicion required.10 L.Ed.2d 513 of individualized 117 S.Ct. 137 Francisco, justify pal City County exceptions Court San 8. None of those serves which, 523, 1727, regime, present search as I de- 387 U.S. 87 S.Ct. 18 L.Ed.2d 930 below, primary pur- (administrative for the (1967) scribe is intended inspections). But pose assisting everyday investigation in the nearly pre-dated all of those cases the Court’s infra, prosecution of See at 856- crimes. phrase "special first use of the needs.” 857. T.L.O., 353, 105 S.Ct. 733. More 469 U.S. over, categorized group later Courts have “special appeared term needs” first involving suspicion-less searches and of cases Jersey concurrence in New Justice Blackmun’s beyond law en needs the need for normal 733, T.L.O., 325, v. 469 U.S. 105 S.Ct. 83 See, "special e.g., needs” cases. forcement (1985), which he stated that L.Ed.2d 720 Edmond, 32, 37-38, Indianapolis U.S. 531 exceptions to certain cases would allow for 447, (2000) (ex S.Ct. 148 L.Ed.2d 121 333 probable-cause requirements warrant and plaining search line of cases that the border governmental pri- balance of when the case, Michigan previous stop and the traffic supported departure, vate such a but interests Sitz, 444, Dept. U.S. State Police v. balancing appropriate that such would be 2481, (1990), were 110 L.Ed.2d exceptional "in those circumstances special sus- needs cases because involved needs, beyond the normal need which primary picionless programs "whose search enforcement, for law make the warrant and of ordi purpose was to detect evidence [not] impracticable." probable-cause requirement wrongdoing”); Burger, 351, nary criminal Id. at 105 S.Ct. 733. (explaining that U.S. at 107 S.Ct. 2636 occasions, Supreme On several Court search line of cases falls the administrative upheld suspicionless has non-law enforce- need”). "special under situations of regimes using search without the words ment Palmer, See, "special e.g., Hudson v. needs.” was Fourth Amendment tenet 10.This basic 104 S.Ct. 82 L.Ed.2d 393 term in Hiibel v. Sixth Judicial (1984) reiterated this (prisons); Ramsey, United States v. Court, - U.S. -, 124 S.Ct. District L.Ed.2d 617 There, searches); (1977) (border the Court L.Ed.2d 292 Camara v. Munici- 854 mistrust of excessive the Framers’ historic Needs Doctrine Special

B. The Ed- police. in hands of the power years hundred in over two once Never 37, mond, 121 447. at S.Ct. 531 U.S. approved Court Supreme history has Therefore, suspicionless programmatic no designed pro- search suspicionless of a special unless the search is reasonable wrong- of criminal ordinary evidence duce general is “divorced from the State’s need consti- police.11 doing for use v. Ferguson in enforcement.” interest law Henry has described tutional tradition 67, Charleston, 79, 121 City 532 U.S. time, promi- most over been reaffirmed (2001) 1281, (holding 149 L.Ed.2d 205 S.Ct. majority years by the nently in recent hospital program a state unconstitutional Edmond, 531 Indianapolis opinion drug use pregnant that tested women for 447, L.Ed.2d 333 121 148 S.Ct. police to the and then made available Edmond, explained the Court that the grounds of the tests on the results that objective [suspicionless] “immediate ordinarily unrea- A or seizure is search for law generate was to evidence searches of individualized in the absence sonable purposes”). enforcement wrongdoing. While such suspicion of in law Although “general interest compo- not an “irreducible” suspicion is every does not refer to law enforcement” reasonableness, recog- we have nent of see, objective, e.g., Illinois v. enforcement only limited circumstances nized Lidster, 419, -, 124 540 U.S. S.Ct. apply. usual rule does not which the (2004) (upholding 157 L.Ed.2d 843 certain example, upheld For we have stop special traffic under the suspicionless searches where regimes suspicionless needs doctrine when the searches were spe- designed was to serve program information not about the designed to elicit needs, normal need for beyond cial vehicle, occupants of “but other indi law enforcement. viduals”), needs, valid as the Court Lidster, recently explained may (emphasis add most Id. at S.Ct. Vernonia, include to obtain information ed); 515 U.S. at efforts see also (O’Connor, J., dissenting) possible related crimes S.Ct. (“The mass, may committed. suspicionless searched individual have view -, searches, evenhanded, gener See 540 U.S. at S.Ct. however support principle inviolate in the Further for this comes ally unreasonable remains context.”). involving drug Ed from the cases school test criminal law enforcement cases, only recognized excep ing. In those the Court has drawn mond held that the rule that a clear distinction between searches con general tion to the suspi purpose solving ducted for the type based on some individualized and/or justified by punishing crime and those searches con cion is when the search is needs, punitive ducted without the involvement of “special beyond the normal need enforcement,” inoperative consequences or law enforcement officials. law render only identifying holding purposes, even when the in- explicitly reaffirmed its in Brown v. Texas, 47, 52, sought person’s formation is a name. (1979), that it is unconstitutional L.Ed.2d 357 require identify individuals to themselves recognize several Circuits have re- 11. I police suspicion. affirming officers without reasonable cently done so in Act on ante, suspicion, theory level of individualized there- Some one or another. See 830-832. fore, disagree qua respectfully with those decisions remains the sine non of cases involv- I ing for the reasons set forth in this dissent. searches undertaken for law enforcement

855 Earls, control” allow such intrusions See, v. 536 U.S. crime would e.g., Bd. Educ. 2559, 822, 833, 153 L.Ed.2d 735 part 122 S.Ct. to become “a routine of American (2002) that “the test results (emphasizing 42,121 life.” 531 U.S. at S.Ct. 447.12 over to law enforce are not turned evaluating When we are the reasonable Vernonia, 515 authority”); see also ment search, suspicionless ness of a conducted (stressing at 658 n. 115 S.Ct. 2386 U.S. pursuant programmatic to a search re for the “search here is undertaken gime, “we consider all the available evi distinctly nonpunitive prophylactic and in to the relevant dence order determine Raab, added); purposes”) (emphasis Von at primary purpose.” Ferguson, 532 U.S. 666, 109 (noting that 489 U.S. at S.Ct. 1384 81, 121 S.Ct. 1281. No matter what the “may not used in a criminal test results be be, goal” may “ultimate of the statute itself without the prosecution employee question ask is whether “the imme we consent”). employee’s objective gen diate of the searches was to never, ever, short, the Court has pur erate evidence law for enforcement regime suspicionless searches upheld 83, 121 poses.” (emphasis Id. at 1281 S.Ct. government’s pur on the desire to based so, If original).13 search is unconsti objectives. ordinary sue law enforcement 1281; 121 tutional. See id. at S.Ct. see Edmond, 41, 121 447 531 U.S. at S.Ct. See Lidster, at -, 124 also 540 U.S. S.Ct. at ap had “never (noting that the Court proved general program suspicionless [a unequivocal purpose The of the searches primary purpose was to seizures] whose performed pursuant to the DNA Act is to ordinary criminal detect evidence ordinary investigatory the sort of generate Vernonia, wrongdoing”); see also 515 U.S. evidence used law enforcement officials Raab, 658, 115 2386; 489 U.S. at S.Ct. Von everyday purposes. law enforcement 1384; Skinner, at 109 S.Ct. 489 U.S. maintained from the out- at 109 S.Ct. 1402. To the con litigation purpose of this that the of the set trary, explicitly disapproved the Court searches authorized the DNA Act is to explained such searches Edmond “help law enforcement solve unresolved permitting suspicionless Moreover, plain it is justified by general “the interest and future cases.”14 States, 806, 813, part, required Whren v. United 116 12. For the most the Court has (1996), probable L.Ed.2d with the law officials to have enforcement programmatic bodily objective purpose search cause in order to invade individuals' integrity purpose assisting ordinary regime, doctrine re for the which the needs Ferguson, U.S. investigations. Cupp Murphy, quires us to evaluate. See criminal See 81, 83-84, 291, 295-96, & n. 20. U.S. 93 S.Ct. 121 S.Ct. 1281 (1973) (holding police L.Ed.2d 900 could government’s supplemental suspect give scrapings 14.The en banc require a from his attempts purpose fingernails brief to recast the as evidence because of the cause”); purely meeting the su- probable DNA Act in terms of "existence of Davis v. Mis- 721, 727-28, probation pervisory parole needs of sissippi, (1969) systems. Supplemental (holding police En Banc Br. for 22 L.Ed.2d 676 States, assertion, This "suspects” give fingerprints the United 13-14. could not force clever, government's investigation prob- while is belied aid in a criminal absent cause). panel arguments made before the initial able government's contention is this case. The compared against purpose when plurality’s 13. The contention that the even less credible legislative express purpose as stated in the of the searches is irrelevant confuses the sub- Moreover, jective history the DNAAct. as I discuss individual officer conduct- intent search, infra, samples ing the collection of DNA is not which is irrelevant under to reveal at Act, designed The searches are Congress’s the DNA passing accu- individuals point the swift and in time whether the concern was some primary as involuntarily of crimes ex prosecution samples rate solution whose blood legislative history general a matter. some crime.” tracted have “committed approving references littered with Lidster, at -, is 124 S.Ct. at 889. past ability solve DNA evidence’s con paradigmatic search This is thereby prosecu- assist future crimes needs doctrine. special demned See, Report, Act House e.g., DNA tions. Some, including the Government 23-27, example, 8-11, For at 32-36 Judge concurring opinion, in his Gould argued to Con- of Justice Department a con- maintain that the DNA Act serves underlying concepts that “one of the gress stitutionally “special need” because valid a database of is to create behind C.ODIS the Fourth Amendment intrusion serves it to profiles and use convicted offender supervise need to its conditional state’s no sus- for which there are solve crimes Wisconsin, releasees. Congress at 27. Members of pects.” Id. Griffin Cong. L.Ed.2d 709 107 S.Ct. arguments. similar made (1987), constitutionally rea- the Court held S11645-02, (daily ed. Dec. at S11647 Reo. probationer of a con- 2000) sonable the search purpose of add- (arguing that pursuant probation to “solve ducted to a Wisconsin into CODIS is ing profiles crimes”) (state- regulation permitted probation further offi- prevent crimes and Cong. Leahy); 146 ment of Sen. cers to conduct warrantless searches Rec. “ H8572-02, (daily at ed. Oct. long H8575-6 ‘reason- probationers’ homes so (“The 2000) (statement Canady) Rep. grounds’ presence able to believe the DNA sam- is to match purpose [CODIS] at supported contraband” the search. Id. where there are no ples from crime scenes regulation 107 S.Ct. 3164. The convicted of- suspects the DNA of a was not made condition Grif- Clearly, samples the more we fenders. to all probation, applied fin’s but instead system, greater the likeli- have held probationers statewide. The Court up with matches and hood we will come system operation probation that the of the cases.”).15 solve presented “special beyond need” that of normal law enforcement —the state’s need gov- that the question There can be no to assure supervision to “exercise conducting [ ] primary purpose ernment’s in fact that[probation] restrictions are ob- DNA Act is to pursuant to the 3164; served.” Id. at see id. generate assisting or- capable evidence (holding ‘special is “a need’ dinary investigations. probation law enforcement (FY2001), 2001) ("DNA (August part supervisory of federal or at 1 evidence of the function systems, Act not probation state and the conjunction used in with the Combined DNA parolees, primarily probationers, directed at (CODIS) System powerful investi- Index persons but at all conditional releasees gative beginning tool at the crime scene with designated convicted of crimes. ending with a the collection of evidence and conclusion.”); judicial Dep’t. see also Justice interpretation 15. The executive branch's Backlog, Acts to Clear DNA Herald, Miami supports the under- the DNA Act and CODIS 2, 2001, Attorney Aug. (quoting Gener- 19A standing legislative history. advanced saying technology al Ashcroft as "DNA can See, Justice, e.g., Dep't Using DNA to Solve machine, ensuring 2002) operate truth (July (stating as kind of Cold Cases 4 that the DNA system "powerful clearing tool law justice by identifying guilty database enforcement”); is a Justice, Suspect Dep't of No innocent.”). Backlog Program Casework DNA Reduction State, im- permitting degree explained ernmental database. its Griffin privacy that would not be from pingement upon departure probable the warrant and public if to the applied requirement by referring constitutional cause repeatedly large”). special supervisory to the interests at the probation system. heart of the reasons, For several does Griffin requirement A warrant would interfere support regime the validation of the search an appreciable degree proba- with the by the DNA Act. First and prescribed system, setting up tion a magistrate foremost, already explained, I have the probation rather than the officer as the primary purpose of the DNA Act is judge of supervision how close a the ordinary collect information for law en- Moreover, probationer requires. the de- purposes help forcement law enforce- —to lay inherent in obtaining warrant spe- authorities determine ment whether would make it proba- more difficult for particular cific individuals have committed tion officials to respond quickly to evi- in supervi- crimes. It is not to assist the misconduct, dence of and would reduce releasees, purpose sion of the the Griffin possibility the deterrent effect that the identified.16 Court expeditious searches would otherwise Second, although proba- involved Griffin Although create.... a probation officer tioners, persons one of the classes of cov- impartial magistrate, is not an neither is Act, ered the DNA the similarities end police normally he the officer who con- in Griffin, there. Unlike the DNA Act against ordinary ducts searches the citi- involves surveillance extends far be- .... setting, zen such a we think it yond periods conditional releasees’ of su- dispense reasonable to with the warrant pervision. Contrary plurality’s sug- to the requirement. gestion, government’s alleged the interest 876-77, 107 488 U.S. at 3164. not, supervision—was accord- Griffin — Court, contrast, ing By to the a “clear law enforcement” the of the purpose DNA ante, Instead, See objective. Act at 824. is to obtain material for inclusion purpose regime permanent help of the search databank to solve crimes Griffin proba- may supervision prior was to facilitate have been committed to the during pro- the finite term of their of supervised tioners individual’s term released but, often, certainly, period; pro- bation it was not to most will be committed at some past supervision duce unbounded evidence of or future time after his term of is com- gov- Although for inclusion in a are permanent plete.17 probation crimes officers Claiming profiles designed system simply by deterring 16. that DNA are lease future crime. releasee, "identify” finger- concurrence, That, much like See at 840. howev- Gould ante, disingenuous. prints, See at 837. er, purpose is not the of the Act. See text Kincade, instance, for was identified and note; preceding following this see also fingerprints, booked with his identifica- dissent, Moreover, Kozinski at 874-875. even by a tion was confirmed criminal conviction goal if deterrence were a conscious of the law, long before court of before his DNA system, special CODIS needs doctrine sample was taken. The collection of a DNA apply. would not The concurrence confuses sample "identify” a thus does not conditional alleged goal programmatic an ultimate of the releasee more than a search of his home regime objective search "immediate merely does—it collects more and more infor- search!],” a distinction that "is criti- mation about that releasee that can be used to Ferguson, cal." 532 U.S. at See investigate past unsolved or future crimes. (holding S.Ct. 1281 that the relevant consider- Judge Gould contends that the DNA Act supervised serves the needs of re- Third, or is not limited to even under CODIS samples the blood collect forced to proba- to cover federal designed primarily immediately Act, required they are By the terms of parolees. tioners or to the FBI them over to turn thereafter Act, con- persons covers all CODIS CODIS, storage in analysis, permanent qualifying offenses re- victed of the Act’s enforcement officials future use law incarcerated of whether gardless purposes. for law enforcement placed super- penal institutions 14135a(b). Any use of the § U.S.C.A. overwhelming majority vised release. crimes committed to solve samples of federal offenses of individuals convicted release is supervised during period probation; they are are not sentenced to purpose primary to the thus incidental Act, where, under the prison, sentenced to And, special needs doc- Act. under the of blood sam- compulsory extraction ancillary trine, matter that it does not Dep’t of ples generally occurs.18 See make the task may Act be to benefit of the Statistics, Com- Justice Bureau of Justice releasees some- supervising of conditional Statistics, pendium Federal Justice of a presence “be- what easier. Even 2001, http://www.ojp.us- available at “justify departure cannot nign” motive (last pub/pdficfjs0105.pdf visit- doj.gov/bjs/ protections, giv- from Fourth Amendment 2004) 7, in July (noting that ed of law en- pervasive en the involvement offenders were sen- 74.5% convicted Ferguson, 532 U.S. 17.5% were prison forcement” interests. tenced to while probation).19 CODIS now 22, sentenced to at n. 121 S.Ct. 1281. 84-85 & primary pur- period supervised release was irrelevant. is whether the direct ation prison "generate taken in pose the search is to evidence The DNA would have been ”). purposes The forced ex- placed permanently law CODIS whether or enforcement designed to scare the traction of blood is not subsequent period release not a of conditional designed avoiding is releasee into crime—it imposed. had been permit of a national database the construction solving past and future crimes. See aimed at inquiry Judge attempts our Gould to limit 19. objective supra at That an ultimate 830-832. question legitimate to to the sole whether it is Act, through the of crime of the the reduction probationers parolees take blood from and/or dangerous criminals or de- incarceration of disregard samples and to the use to which the terrence, goals compatible of the is with the inevitably put. way be That is not the will system Ferguson As probation is irrelevant. programmatic which the Court evaluates the explained, al- "law enforcement involvement constitutionality, purpose, and thus the ways purpose or serves broader social some regime special cases. We search needs view, objective, respondents' vir- [and] under directly purpose. to the Act and its must look tually any suspicionless search nonconsensual 81, 20, Ferguson, 532 U.S. at 83-84 & n. special under the needs could be immunized (examining S.Ct. use to which urine 1281 solely by defining in terms doctrine the search ante, samples put); were see also at 837-838 immediate, ultimate, pur- than of its rather job (explaining that "our is limited to resolv- pose. approach Such an is inconsistent ing constitutionality program before the Fourth Amendment.” us, imple- designed as it been as it is has 1281; M. Gould & Si- see also Ronald Moreover, mented”). today’s prevail- under Stern, Catastrophic Threats and the mon view, ing highly suggest as it is unrealistic to Amendment, n. Fourth 77 S.C.L.R. does, Judge whose Gould individuals (2004) ("The of crim- indirect interdiction may samples in CODIS blood are stored committing is incho- inals from future crimes destroy their DNA records after free to sue to prosecution, ate it is not the main in each but expired. Doing period release of their has point.”). underlying very purpose so would vitiate the adoption of the DNA Act. Furthermore Ironically, blood that where Kincade's is according plurality, Amend- to the the Fourth sample eventually The fact was extracted. is limited to the by a ment violation in this case was to be followed his incarceration could profiles includes DNA members be conducted. See 483 U.S. at also forces, despite armed the fact that the 3164; see also id. 880 n. repository originally was army’s DNA (holding only regula- S.Ct. 3164 that “the only “for promised to be used the identifi- tion upon rely which we for our constitu- of human remains.” See Br. of cation tional decision permits which for the Amicus Curiae Pub. Defender Serv. warrantless search ‘reasonable Columbia, (citing at 13 62 Fed. Dist. ”). grounds.’ supervisory state’s in- (Oct. 1987)). Thus, Reg. terests, beyond the normal needs of law conditional the relevance of individual’s enforcement, implicated were in Griffin program release status to the CODIS precisely because the searches were de- Only very highly per- attenuated. small signed to check on probationers individual Act are centage persons covered suspected who were of violating the terms subjected compulsory blood extraction of their conditional release. Neither Grif- release, while on conditional and the use of precedent nor later supports hold- the information collected is not limited to fin ing constitutional under the needs way fairly of time. In no can it period that, regulations relating doctrine all state Griffin, be said like CODIS is a designed to program supervision supervision aid of probationers parol- of conditional releasees. suspicion ees without and notwithstanding presence ordinary of an law enforce- least, Last but not Court Griffin purpose primary ment as the factor under- regime required confronted a search which suspicion any lying reasonable before search the search.20 They reading Ferguson plainly of blood. believe that what is extraction incorrect. The Ferguson done with that information once it is taken is plurality footnote to which the re- purposes. irrelevant for Fourth Amendment responded argument, fers to the made in Jus- ante, This, course, at 837-838. is di- dissent, special tice Scalia's that the needs rectly contrary analysis to the mode of permits suspicionless doctrine searches con- event, Ferguson any according dictates. to ducted law enforcement officials for law complet- plurality, the an individual who has objectives. enforcement 532 U.S. at 81 n. period supervised ed his release would not support, 121 S.Ct. 1281. For Justice Scalia be free to show that the DNA Act authorized Ferguson majority respond- The cited Griffin. ''search” under its unconstitutional inter- support proposi- ed that does not the “Griffin pretation Finally, of the Fourth Amendment. tion for which the dissent invokes it.” Id. It Judge approach Gould's would allow future explained special that the needs cases have justify programs courts to law enforcement suspicionless approved searches when under interest related but subordinate to purpose “there was no law enforcement be- traditional, primary, the law enforcement little, hind the searches ... and there was if Including need served the new- search. any, entanglement with law enforcement.” justified borns in CODIS could be to serve the exactly Id. Yet this is what the DNA Act con- weighty help prevent needs to abduc- child templates probation required officers — determinations, paternity and tions assist in samples Act to under the collect primary purpose even if the were to maintain immediately turn over to federal law them throughout the newborns' records their lives analysis, storage in enforcement officers for investigations. use in future for criminal CODIS, possible use in future criminal This, too, directly contrary Ferguson. (b). § prosecutions. See 42 U.S.C.A. 14135a 532 U.S. 121 S.Ct. 1281. entangles probation The DNA Act thus offi- cers with normal law enforcement officers in plurality Ferguson 20. The contends that inter- solve, investigate, collective effort preted requirements to mean that the Griffin special precisely type prosecute crimes. This is the simply of the needs doctrine do not program Ferguson suggested involving proba- would apply in searches of cases Ante, parolees. tioners and at 832 n. 26. This violate the Fourth Amendment suspi- analyzing blanket framework Conclusion C. in- regimes, plurality the cionless search blanket forbids Amendment The Fourth a malleable and boundless employs stead for ordi- conducted searches suspicionless merely the asks whether standard'—-it Under purposes. nary enforcement law to- considering “the was reasonable search only remaining the plurality’s opinion, See, tality present.” of the circumstances that has Fourth Amendment area of the Knights, e.g., States United longer no would “nonnegotiable” been 112, 121, L.Ed.2d 497 Gould, that the I believe Judge safe. Like plu- chosen approach The case. controls this doctrine special needs guar- the structural rality dispenses with however, Gould, I hold would Judge Unlike Amend- guided have Fourth antees that designed plainly DNA Act is that the Founding. jurisprudence since the ment criminal ordinary generate evidence guarantee It the constitutional eliminates superviso- not to serve wrongdoing, and not be that law enforcement will That need, ry as was the case Griffin. spe- conducted in the absence of individualized under impermissible purpose is an I Consequently, to all kinds suspicion opens cial doctrine. the door needs doctrine, that, hold under governmental would nationwide bureaucratic Act is unconstitutional. disregard Fourth programs citizens, rights of our

Amendment Totality being III. The only remaining safeguard Test Circumstances judiciary weigh prop- willingness of the erly importance general the relative danger- a far more plurality The takes interests and individ- law enforcement in his Judge ous course than does Gould infra, I show privacy right. ual’s As simply ap- The concurrence concurrence. demonstrates, today’s that is a decision doc- needs plies, misapplies, plurality’s doctrinal thin indeed. reed doctrine, suspi- that trine. At least under circum- apply totality decision to a carefully scrutinized cionless searches are suspicionless to a enforce- stances test law only when and held constitutional just regrettable, as ment search is from law apart need serve a valid reckless, pragmatic than its even more however, be- plurality, The enforcement. to find constitutional the mass decision not do suspicionless lieves that searches collection, extraction, involuntary per- ba- justified on the need to be traditional storage samples manent of DNA CO- Court. employed by Supreme sis the DIS for future use. the Court’s established Casting aside interest, however, public supposed to [are] we the also plurality, asserts that probationer,” have in mind the welfare of the by misreading the facts of this result reach ante, of id. at were control the facts of at 832 n. Yet Griffin. police: "we although rather than the deal clearly the search the search reflect Griffin ongoing there is an tip police offi- in which police situation was initiated not, supervisory relationship be- one that physically present at the home cers were —and searched, entirely, juncture of the or at not adversarial —between ing every least critical object the of the search and the decisionmak- process to search the decision search —from de- er.” at 107 S.Ct. 3164. Therefore out and Id. search itself—was carried the claim, plurality's did contrary to the upon entirely by probation officers cided the Griffin involve, condemned, Indeed, Fergu- not but rather police. relied the Griffin authorities, noted, entanglement probation offi- son the upon probation the fact that the objectives. protecting law enforcement assuredly charged with cers with who "while justified Support only by A. Precedent Does Not the framework was the com of all of Totality present. the Circumstances bination the circumstances Approach 5 at S.Ct. 587. The plurality is correct those circum supports the Supreme No Court ease stances included the expectation reduced totality of the circum- plurality’s use of the privacy by Knights held account suspicionless stances test for searches de- the probation. conditions of his But the signed against to obtain evidence for use included, circumstances also as the Court present searched in or future persons emphasized repeatedly, the fact that investigations. criminal The Knights deci- supported by suspi search was reasonable sion, only opinion plurali- to which the cion: that, ty points, support does not the view group because the searched includes condi- holdWe that the balance of these con- releasees, may simply disregard tional we requires siderations no more than rea- principles governing traditional Fourth suspicion-to sonable conduct a search of law, Amendment and conduct law enforce- probationer’s this degree house. The ment searches the absence individual- suspicion required individualized of a suspicion.21 ized search ais determination of when there upheld a is a Knights sufficiently high probability warrantless search home; probationer’s criminal occurring defendant’s conduct is to make probation included an explicit terms the intrusion on the individual’s mandating Although condition submission to such interest reasonable. at given ordinarily requires time. 534 U.S. Fourth Amendment clearly Knights degree probability S.Ct. 587. decid- embodied in cause,’ question ‘probable ed the Fourth Amendment out- the term a lesser de- “special gree side of the needs” framework. satisfies Constitution when the (stating governmental private S.Ct. 587 balance of in- question presented as whether war- terests makes such a standard reason- probationers rantless searches of are con- able. interests Those warrant lesser stitutionally probable-cause reasonable without reference than here. standard “special probation suspi- to the needs” of the has reasonable When officer system question probationer subject cion that a to a —the Griffin consider”). it “unnecessary engaged Court found search condition is in criminal distinguished “special activity, The the that enough Court there is likelihood cases, occurring needs” line of it did so cautious- criminal conduct is that an but ly, explaining probationer’s signifi- that departure its from that intrusion on the recognize (considering privacy I that even needs cases at 889-91 the balance of governmental only needs after interests versus employ balancing "totality a test akin to a of determining stop question that the traffic in approach. the circumstances” But do so [the "was not to determine whether individu- only regime question the search in has after crime, committing a to als were but searched] valid, been deemed to be a non-law enforce occupants, ask vehicle of the members Compare Ferguson, at ment search. 532 U.S. Thus, help”). "general public, their the for (refusing apply &84 n. 121 S.Ct. 1281 to approach Fourth Amendment” to reasonable- balancing "a test to determine Fourth Amend something applied that has been in ness is ment because the was reasonableness” search suspicionless search cases after the generate by undertaken to evidence for use alleged "spe- Court has determined that the laws); enforcing police general the criminal of a valid non-law cial need” consists enforce- Lidster, at -, purpose. 124 S.Ct. ment

862 ap- Fourth Amendment “general The interests is

cantly diminished plurality by Knights the proach” described circumstances The same reasonable. Fourth Amendment cases refers to those that reasonable conclude us to that lead to sought has either in which the Court constitutionally suspicion sufficient suspicion level of the minimum determine un- requirement warrant a also render type of particular a required support necessary. the quan- whether search or to measure (internal 587 122 S.Ct. U.S. 534 in a possessed suspicion officers tum of omitted) added); see (emphasis citations requi- to meet the was sufficient given case (noting 587 n. 122 S.Ct. id. at 119 also Indeed, “totality the the site level. the constitution- not address “we need designed guide was circumstances” test the search because suspicionless ality of a probable cause reason- the Court its by supported rea- in this case was search See Illi- suspicion determinations. able 122, 122 id. suspicion”); sonable 213, 238, Gates, 103 S.Ct. nois v. U.S. (“We the warrant- therefore hold (1983) (explaining L.Ed.2d by rea- supported Knights, less search “totality of the circumstances the by a con- authorized suspicion sonable traditionally informed analysis has [ ] within was reasonable probation, dition determinations”). test The probable cause Amendment.”). meaning of Fourth however, used, justify has never been law enforcement searches. suspicionless quoted above Knights from passage The circum- contrary, “totality of the To the willing- the Court’s suggests that strongly cases, of some level presence stances” imposed ignore the limitations ness a always given has been a suspicion large- was based special needs doctrine involving suspicion- qua non. sine Cases suspi- of individualized ly presence on the regimes not programmatic search less the Court say suggests I because cion. That “general” Fourth Amendment cases. applying its reasons explained never single why plurality cannot cite test. totality of the circumstances totality of the applied case that has need not decide only that “[w]e Court said regime suspi- to a circumstances test acceptance of the search Knights’ whether cionless searches. consent in the constituted condition complete waiver sense history, despite Schneckloth Despite this however, rights, Knights, Fourth Amendment strongly suggestive language his the search conclude that we maintains plurality implausibly because general under our Knights suspicion-based reasonable drawing was a line between unnecessary of ‘examin- approach suspicionless Fourth Amendment searches is ” analysis trig- circumstances.’ 534 ing totality “special [is] because needs suspi- (quoting gered complete Ohio absence U.S. at S.Ct. 587 Robinette, 33, 39, cion, from the Fourth departure but (1996)).22 warrant-and-probable cause important It is Amendment’s L.Ed.2d 347 Ante, at 829. In proper requirements.” support in its to understand this statement plurality the cites proposition, of this historical context. Grif- "general” Robinette, course, question, example as in all Fourth of the almost is an 22. cases, whether the officer totality circum- Amendment was of the traditional use of the Robinette, suspicion justify his subse- had sufficient approach. Court stances warrant, a probable quent search in absence of had considered whether officer some level of sus- whether he needed to have get out of his car after cause to ask a driver to picion. 117 S.Ct. 417. speeding. See 519 pulled The U.S. he had been over for “special analy- a needs” The fin, applied way which best to make sense of Knights, the fact that the search of despite sis in light of and the “special Court’s Griffin suspi- reasonable supported Griffin was cases, recognize needs” is to that plurality Id. The somehow cion. infers Knights the Court apply was free to “totality this that the of the circum- from “totality of the circumstances” test because test is not limited to stances” the search supported by was individualized suspicion. plu- based on reasonable The suspicion.24 True, Knights Court could rality’s logic is The fact faulty. that just as well have followed lead Griffin’s justified suspicionless search must be on justified the search on the of the basis special way in no basis needs means special state’s operate need to proba its suspicion-supported that a search cannot However, system. tion given the presence instance, justified on that if basis. For suspicion, individualized either doctrinal special prevent need of the state to approach appropriate. was Because the Sitz, driving drunk highways, see DNA Act’s authorized blanket searches 451, 2481, justifies 496 U.S. 110 S.Ct. supported by any are not modicum of indi stops traffic where no individualized suspi- suspicion, vidualized I would hold that the exists, certainly cion that same need would “special needs” line of cases controls our justify stops such based on a reasonable analysis case, of this totality and that the suspicion particular drivers were in of the may ap circumstances test not be event, any fact drunk.23 In the line be- plied. suspicionless tween law enforcement searches and upon searches based reason- B. The Dangers Adopting the able individualized is as suspicion old as Totality the Circumstances the Fourth Amendment and is fundamen- employed by tal The rationale preservation plurality to the of the inter- provision protects. ests which that would set us on a dangerous path. The Additionally, simply validity it cannot be ques- the case constitutional of the search in answer, "special analysis "triggered needs” ... tion—the is that the Court has held by departure regimes from the Fourth Amendment's constitutional search where the lack (blan- warrant-and-probable requirements.” suspicion cause role for individualized Ante, students, case, drug testing ket special at 829. If that were the all random traffic drivers, stops analysis inspections of all random involving needs control cases would businesses) Buie, closely-regulated protective sweeps, Maryland is combined see v. 325, 1093, purpose. with a valid non-law enforcement 110 S.Ct. 108 L.Ed.2d 276 (1990), arrest, searches incident to see Chimel 752, California, 395 U.S. 89 S.Ct. may suspi- 24. Whether the state authorize (1969), searches, pat-down L.Ed.2d 685 probation- cionless the homes searches of Ohio, Terry v. parolees ers and remains an unanswered departure L.Ed.2d 889 from the question. Knights, 534 U.S. at 119 n. warrant-and-probable regime 587; cause of the see also United States v. Craw- triggers (9th Cir.2003) Fourth Amendment is not what ford, (holding 323 F.3d 700 special analysis; departure needs is the suspicionless probationers searches of special analysis Amendment), result of needs in which the parolees the Fourth violates programmatic purpose Court finds a valid (9th reh’g granted, vacated 343 F.3d 961 regime purpose apart Cir.2003); the search from law 372 F.3d 2004 WL —a plurality’s (9th (en 2004) banc) enforcement needs. Under the (assuming Cir. Jun view, "trigger” needs concurring doc- objection over the of several trine is the judges, deciding, same as the result. A far better but not that such searches view, explanation, my Amendment, holding focuses on the rea- violate the Fourth but why warrant-and-probable challenged son cause re- that the evidence too attenuat- was search). gime appropriate determining product is not the ed to be deemed a of the 864 countless has identified the Court totality of The the claims that

plurality reduced have of individuals who groups be- simply analysis applies circumstances Conditional re- privacy. have re- of parolees expectations probationers cause See obviously group. is such are one privacy. of If leasees expectations duced Brewer, 471, 478, why a 92 to see 408 U.S. case, impossible Morrissey v. it is (1972). in a But apply 2593, not multitude would 33 L.Ed.2d similar test S.Ct. no individ- in which All circumstances one. students of other not the they are to I do mean suspicion significant exists. ualized have public schools who attend totality of the application that the suggest Bd. privacy, of ly expectations diminished per dangerous test 830-31, 122 the circumstances Earls, 822, of v. of Educ. tradi- courts have explained, I have se. As (2002), 2559, L.Ed.2d 735 S.Ct. relevant cir- all of the tionally balanced in voluntarily participate ex students who evaluating the sufficien- when cumstances less of an activities have even tracurricular in the suspicion to search cy of an officer’s 831-32, 122 see id. at S.Ct. expectation, determining or a warrant absence of vehicles passengers Drivers and 2559.25 than suspicion rather whether reasonable See, privacy. expectations have reduced danger The cause is sufficient. probable 295, Houghton, 526 U.S. Wyoming v. e.g., its will- lies in approach plurality’s 1297, 143 L.Ed.2d 119 S.Ct. totality the circum- apply to ingness Labron, 518 U.S. (1999); Pennsylvania v. enforcement uphold law test stances 938, 940, 116 S.Ct. 135 L.Ed.2d exists. suspicion all where no searches (1996). privacy expectations, Arrestees’ all of us would approach, an Under such too, reduced. appear significantly to be when liberty eroded inevitably have our California, 395 U.S. v. See Chimel against are balanced privacy our interests 23 L.Ed.2d enforce- interests law the “monumental” examples. These are few but ment. plu analysis engaged Under totality the circumstances rality, a test rationale, if employed plurality’s suspicionless search apply would cases, in the end of the result future would Certainly, regime involving groups. these general requirement Fourth Amendment’s circumstances test totality of the would suspi- on individual that searches be based again we are to review apply when forced reasoning, “the plurality’s cion. Under the as it expanded, Act once it is the DNA proba- judicial parole of a or assessment be, samples inevitably will to require tion outside search’s reasonableness frighten particularly from arrestees —a all analysis,” ante needs strictures of considers that the ing prospect when one fact that condi- justified by police allows offi apparently Constitution expecta- “diminished tional releasees have nearly for a limit cers to arrest individuals expectations If reduced privacy.” tions of conduct, including refusing to range of less require- inapplicable render privacy inquiring name an law provide one’s sus- suspicion, then ment of individualized official. Hiibel Sixth many enforcement picionless would be valid — Nevada, Dist. Court would Judicial plurality more situations than the 2451, 159 -, L.Ed.2d admit. presently willing be individuals, cases, expects group cannot such search 25. The fact that the school totality predecessors, deciding as Earls and its considered factor in whether “special evi- paradigm needs” cases is further analysis applies. circumstances individual, dence that the level (June 21, 2004); objectives see also At for cement WL 1373207 least for —at Vista, City Lago water v. majority vast of us who at some times or of 149 L.Ed.2d 549 others in our lives have a reduced expec- Indeed, privacy. tation of in the face of governmental “monumental” totality If the of the circumstance test law enforce- justify suspicionless interests, could used to law ment I find it difficult to under- searches, enforcement Fourth suspicionless stand when searches would Amendment would be little more than an be found to violate the Fourth Amend- afterthought as the seeks to ment. general conduct more and more invasive The plurality’s answer to this is not

programs in the name of law enforce- reassuring:”Where given a search or class ment. This would be so if even of searches cannot satisfy the traditional searches, initially, at least were confined totality test, of the circumstances condi- persons expectations with reduced tional may lay releasees claim to constitu- privacy. already We have seen the ex- pansion just of CODIS and the DNA Act —an tional like other citizen.” relief — expansion today by my Ante, is authorized at 834-835.26 The problem my with colleagues under the Fourth Amendment. plurality’s view that is under the bal- worse, if expansion possible Even such analysis ancing performed, it has it is diffi- respect forcible extractions imagine cult to privacy interests could how CODIS, blood to be included in numerous prevail ever over law enforcement needs. equally less or intrusive methods evi- Here, plurality proclaims namely, dence all ordinary collection — question search in consists except perhaps searches and seizures physical piercing of an individual’s skin in requiring bodily those more extensive in- Despite order to extract his blood. justified vasions —will all be valid when government’s “persuasive” privacy law en- obvious intrusions suffered plurality ample pro- constitutionally also contends that unreasonable because of the See, underlying programmatic purpose. e.g., tections for conditional releasees remain in Ferguson, right privacy against govern- “a 532 U.S. at form of 121 S.Ct. 1281. The fact that conditional arbitrary, ment searches and seizures releasees will retain that are equal protection process their right privacy against basic and due searches and sei- rights is no reason to eviscerate the core of capricious, right priva- zures that are protections traditional Fourth Amendment cy against searches and seizures that are ha- against unreasonable searches and seizures. Ante, rassing.” (quoting at 835 United States (9th Cir.2004) (en Crawford, 372 F.3d 1048 The claim that conditional releasees will banc) (Trott, J., concurring)). It no doubt somehow be able to file a lawsuit under 28 right true that conditional releasees retain a § U.S.C. 1983 is not credible. Even if the privacy against arbitrary harassing or plurality did not assert that there is an “over- searches, just right retain a whelming” public and”monumental” interest against government searches based on their completing comprehensive national DNA race, religion, ethnicity, database, or or other factors utterly implausible it is to think that might violate the Fourteenth Amend- any court would find that a search conducted problem Act, ment. U.S. amend. XIV. The Const, pursuant to a statute like the or a view, course, plurality's with the is that the general regulation traffic such as the ones at prevents Lidster, Fourth Amendment searches that possibly issue in Edmond and could "unreasonable,” simply are searches that play violate "fair communal standards of arbitrary, capricious, harassing. decency.” or Ante at 834-835 & n. 29. Addition- suspicion- ally, availability amend. IV. And while few Const, of a cause of under action programmatic § less justification deny searches would count as 1983 is not an indi- arbitrary capricious, many may rights. well be vidual his Fourth Amendment history throughout our pressures draulic perma- in a are included those whose data to water database, heavily on the Court which with that bear governmental nent give guarantees repeated conduct constitutional can down the hydraulic That genetic profile upper individual’s the hand. police of the searches the the greater concludes never been forever, plurality probably the has pressure Ohio, constitutes intrusion Terry v. today.” Fourth Amendment it than is (1968) If privacy. of invasion “insignificant” 1, 39, L.Ed.2d 889 an govern- the insignificant, J., plurality’s the invasion were The dissenting). (Douglas, to show to do much not need would ment un- already buckled regime has boundless “insignificant” made the that its interests the hand strengthen to pressures der the plu- the According to reasonable. search enforcement; only it worsen of will law “over- however, society has an rality, more. I see demands the on terror” “war that condi- ensuring in whelming interest” workable depart to the no from reason with the terms comply tional releasees framework, supported by constitutional in release, re- “enormous interest their jurisprudence generations of considered recidivism,” inter- and a substantial ducing matter, suspi- determining when for the past to the contributing solution est in per- searches are programmatic cionless to bring “closure to offenses order I they are not. would and when missible Ante, at 838- of crime.” victims countless needs test. inquiry special limit to the our inter- weight these The 839. combined Id. at told, “monumental.” ests, is we the Totality the Cir- Even Under C. the enforce- So, likely, would be law Test, the Searches Au- cumstances search any suspicionless interests ment Act Are Unrea- by the DNA thorized regime.27 sonable judicial under review impotence The by plurality the test the Although used ap- circumstances” “totality the the I believe meaningful guidance, no provides plurality’s in the display proach is on full under that faithful standard even does “balancing of interests” opinion. to principles the central the application of of a balance—to provide much require invali- Amendment Fourth would reading of contrary, any reasonable regime. of the search Under dation the “bal- reveals plurality’s decision test, given search is balancing whether gov- tilt in favor of the always ance” will factors —the turns on powerful hy- reasonable several have been ernment. “There however, expectation privacy will be sig- a "full” plurality, claims short 27. The inspiring trump the law en- to awe citizens sufficient between normal nificant difference plurality heavily interests found in the forcement factors and convicted offenders and, Act undoubted- analysis, the DNA be advanced totality of the circumstances designed provide expan- ly, by statutes law nearly as other is not therefore that test effective modern take enforcement more as I have claimed. No one should sive totality of circumstances test If the There no differ- tools. solace from assertion. this kind, degree, really were the Fourth Amend- between "traditional” one of ence suspi- regardless of absence of test other ment conditional countless releasees cion, really doctrine and if the needs groups of who have been found individuals group inapplicable when the tar- privacy. made possess expectations of And were limited search geted suspicionless a blanket re- applicants federal school while children privacy, gime expectations of has diminished arguably possess privacy more than positions releasees, subject suspicionless be difficult to funda- it would plurality conditional scruti- expec- to serious Fourth Amendment mentally explain higher how unable considerably ny the future. still fall tations of which expecta- of the searched individuars far more of an level intrusion than the mere intru- insertion of a needle privacy, tion of the character into an individual’s sion, body consequent and the strength government’s and the extraction of a sample.28 blood In prior of which must be balanced cases dealing interests —all light in of the level of intrusion against by each other the facts of authorized factors, taking samples, I of blood Balancing each case. those courts did not totality regime confront a samples would hold that the of the circum- which the were turned into by profiles capable being stances makes the searches authorized of searched time and again throughout the DNA Act unreasonable. time See, the course of an e.g., individual’s life. 1. The Extent Intrusion of Schmerber, 384 U.S. at 86 S.Ct. by Caused the Search (describing 1826 the blood test as designed by The intrusion authorized the DNA to produce evidence of inebriation at the search). significant. Act is As the Supreme time of the The startling advance explained in v. Ry. technology Court Skinner Labor of magnified power has Ass’n, 602, Executives’ 489 U.S. 109 S.Ct. the initial by search authorized the DNA 1402, (1989), Act, 103 L.Ed.2d 639 “a com- that privacy such the invasion of pelled body intrusion into the vastly significant for blood more might that we have analyzed to ... previously Here, be must be deemed a assumed. the DNA light Fourth Amendment search. In of placed in the CODIS database contains society’s security information, our concern for the sensitive and no one say can person, one’s it physi- today is obvious this what future uses will be made of it intrusion, penetrating cal governmental files; beneath the once it is entered into skin, infringes expectation privacy certainly, today’s provide restrictions no society prepared recognize guarantees to regarding governmental future 616, reasonable.” Id. at 109 1402 uses. To reduce the searches authorized (internal omitted); quotation marks physical see the DNA Act to the act of California, taking also Schmerber v. ignore U.S. blood would be to the “totali 757, 767, ty 86 S.Ct. 16 L.Ed.2d 908 of the surrounding circumstances” (1966); Wright, United States v. ignore F.3d search and the manner in to which (9th Cir.2000). 1020, 1025 though Even “the advance of technology” has affected the Court has in some cases upheld degree privacy such “the secured to citizens constitutional, searches as it Kyllo has insisted the Fourth Amendment.” v. States, 27, 33-34, that searches of an body individual’s are United 533 U.S. “severe, (2001). brief, though upon S.Ct. 150 L.Ed.2d 94 intrusionfs] We personal security cherished ignore technological developments cannot [are] subject context, scrutiny.” Cupp constitutional in the Fourth Amendment but 291, 295, Murphy, 93 S.Ct. instead must confront “what limits there power technology this upon L.Ed.2d guaranteed privacy.” shrink the realm of It is true that courts have sometimes 34, 121 Id. at S.Ct. 2038. privacy described the invasion caused blood tests in less forceful I privacy terms. The would hold that the invasion of however, question, required by search constitutes the DNA Act is substantial. Brown, Certainly, 28. it constitutes far more of an 159 L.Ed.2d merely requiring (requiring intrusion than an individual rea- 99 S.Ct. 2637 Hiibel, - U.S. -, identify suspicion inquiry). himself. See sonable for such an that the collection there is little doubt scope in its unprecedented Act is The completed. far will soon data from more we have expand once only to threatens parol probationers event even the sub- forms. With its initial justified once mind, expectations have full I ees invasion nature stantial society and paid have their dues pri- expectations to the reasonable turn their terms of conditional completed have parolees. by probationers vacy held however, con has plurality, The release. Privacy a severe and fundamen Expectation cluded that “such relationship between disruption tal observation by now banal It is society, along with the offender and have diminished parolees probationers concomitantly greater inter government’s United States privacy. of See expectations monitoring supervising and closely in est 112, 119, 122 S.Ct. Knights, 534 U.S. releasees, in turn sufficient is conditional Knights As 497 151 L.Ed.2d his searches of suspicionless to sustain parolees’ and ex- probationers’ explained, of in the absence property and even person curtailed, are and privacy pectations ” ‘special need’ some non-law enforcement impose “reasonable society may therefore words, Ante, In other convict at 834-835. the offender of deprive that conditions privacy expectations ed offenders’ reduced law-abiding citi- enjoyed by freedoms some may forever. last (emphasis at Id. zens.” added). plurality makes disagree plurali- But the error the with the respectfully I freedoms” expectations of “some treating privacy a reduction of the ty’s assessment subjected to the elimination to equivalent by if it were searches held individuals as my colleagues’ evident that de- Despite all. DNA Act. I conclude under the contrary, conditional releasees parolees’ to the diminish- spite probationers’ views All of expectations. expecta- the privacy privacy, those expectations do retain ed plurality discuss they given cited the retain must be sufficient authorities tions “eliminated,” reduced, expecta- process. not the weight balancing in the the releasees have conditional tions Interests 3. The Governmental period supervision the

during their See, 118-19, 122 S.Ct. e.g., id. at state. government’s turn interests I now to the most salient fact (emphasizing that the question. conducting searches the analysis totality of the circumstances in its described these interests plurality has subject “proba- to a Knights that was was “enormous,” “overwhelming,” as “significantly condition” tion search Certainly, one would think “monumental.” expectation of [his] diminished reasonable prevention the that such interests involve at Griffin, privacy”); act, ticking defusing of a of a terrorist the Fitzharris, 3164; 521 F.2d Latta v. bomb, missing weap- discovery the of the banc) (9th Cir.1975) (en (plurality destruction, something sim- of mass ons opinion). According the ilarly weighty. so. Not normal, these words describe Moreover, plurality, DNA Act impact of the pre- everyday needs law re persons limited to in a conditional not enforcement — rehabilitation, crimes, encouraging venting who It individuals status. affects lease by solving to victims bringing supervision, closure completed their period have I that the agree old crimes. never been well as some have who solving very interest strong has a subject The data some to that status. disagree I deterring crime. But in CODIS and arrestees are now included sought investigations to be advanced of criminal interests easier.30 The anything Act than the ordi- willing other same would be true were we nary every advanced in favor of needs sacrifice all of our in privacy interests designed to crime control. program personal liberty. assist Those who won our inde- chose, however, supra, (describing pendence 856-857 Act’s to follow primary purpose). provide course but instead to us with safeguards contained the Fourth in- government’s order make the Amendment. judges We as do not have are, appear stronger terests than authority to sacrifice those constitu- plurality pursuant contends that searches protections. tional to the Act purpose serve commendable ensuring the innocent will not be D. Summary ante, wrongly convicted. See n. 38. certainly hope I would that the Act would apply Were we to totality purposes. for such experi-

be used Recent analysis, I circumstances would hold that ence has shown that DNA evidence can the balance of considerations makes the convicted,29 help exonerate the wrongfully programmatic suspicionless un- I applaud and would be the first constitutionally unreasonable. The inva- helped wrongfully statute that accused or privacy sions of the Act authorizes are analysis convicted individuals obtain DNA substantial; probationers the parolees worthy purpose. for that subjected to its provisions maintain rea- sonable expectations privacy; and the Unfortunately, not Act the we government’s interest, significant, while today. review Act nothing The DNA does stronger ordinary no than its interest wrongfully to the assist accused or convict- investigating prosecuting crimes. On Act provides option ed. The no for DNA balance, government’s the desire to create testing prove to those who seek to their comprehensive a DNA give databank must innocence, funding and no to states or way weighed against privacy when the in- help provide sampling localities to DNA terests at issue and the extent of the intru- requested by when those who contend that sion involved. wrongfully were arrested or convicted. It simply requires the collection and mainte- lost, society When democratic values are samples nance of blood from those our back, late, says often looks too when society the state believes to be the most happen why did this didn’t we under- — likely to commit It crimes. is thus difficult Today’s stand before it was too late? deci- government’s to accept representation the turning points sion marks one of those —a regarding its concerns the innocent. fatally unwise and surren- unconstitutional undoubtedly

It is true that were to government liberty we der of our for and, maintain DNA persons living security, plu- files on all in the sake of should country law, theory this we would make the resolution rality’s ever become the estab- Gomez, 29. See Tolbert v. F.3d relaxed Fourth standard has Amendment 1999) J., (9th (Hawkins, (cit concurring) Davis, Cir. rejected. been made before and ing "prisoners instances in which re [were] (explaining 394 U.S. at 89 S.Ct. 1394 they leased when scientific tests show could suggestion that "we find no merit in the ... have committed the crime of which evidence, fingerprint because of its trust- convicted”). were worthiness, subject proscriptions is not to the Amendment). of the” Fourth Incidentally, argument that the relia- bility types justifies of a certain of evidence no-one activity, and future criminal us deter that would leave of a doctrine lishment is the reason seriously suggests that such further abo- to halt legal tools without created to The Act was adopted. it was compulso- rights. The lition of our officials solve un- enforcement help law and the samples blood ry extraction of su- ease is not about crimes. This solved profiles of permanent maintenance with re- of individuals group pervising is, unfortunately, the be- citizens American It is about privacy. expectations twenty duced arrives not the end. ginning may invade an government whether predicted. than years later compel him to sur- body and individual’s for inclusion Conclusion information IV. render sensitive government da- permanent in a centralized Kincade was convicted Thomas Cameron state’s to further the law tabase order paid He has crimes. committing several enforcement interests. serving time society by his his debt super- plurality’s current term determination His those offenses. and store this in- ironically imposed may release, was collect which vised “totality of the circum- given to submit blood formation him for his refusal on Act, stances,” protec- the structural dismantles required by the will sample as core of the Fourth publication tions that lie shortly expire after always required have 2004. At Amendment. We August opinions these designed suspicion have for searches time, cease to individual will state ordinary Kincade. evidence criminal produce over Yet supervisory interest Act, allowed blan- wrongdoing. the DNA have never Kincade, by the We terms justified to be provide suspicionless effectively compelled ket will prosecute investigate and all the need to respect to crimes evidence with future efficiently past for the rest of crimes. may be accused more of which he abandon the re- My colleagues is dis- Every time new evidence would his life. scene, govern- special needs doctrine the straints that the from a crime covered ability to government’s code to con- genetic places on the ment will search Kincade’s In that doctrine’s committed the searches. he has duct blanket determine whether might they nothing leave us with government place, would -just as the crime— that will inevi- linking him than a boundless test evidence more search his house for fact “monumental” law en- despite tably that side with the to the crime scene— have cause to at stake and may never forcement interests government Moreover, exercise the mainte- the state will empty promise him suspect again. so myriad if the ever de- permit restraint circumstances nance of his will uses of the mand. other known unknown authorities, as samples, by governmental gov- always grant It to tempting is evolves, in of his full technology violation authority fight more to crime. ernment expectation privacy.

future all effective law enforce- We desire more recidivism, ment, “closure” for truth, less Act was enacted the DNA But that of heinous crimes. desire pro- of the victims needs supervisory to meet the justify eviscerating structural seriously sug- does not no-one system, bation of the Fourth Amendment —those edifices that it It was not established gests was. only protec- offenders, often barriers constitute help convicted rehabilitate intrusions against governmental into sugges- tions seriously makes and no-one of our intimate details lives. the most Finally, it not enacted to tion either. was zeal, I DNA evidence contains such details. men of well-meaning but with- agree cannot the Act out understanding. therefore is join plural- constitutional and cannot in the States, Olmstead v. United ity’s approval of the enthusiastic use (1928) 48 S.Ct. 72 L.Ed. 944 for suspicionless searches law enforcement (Brandeis, J., dissenting). The erosion of Nor, join can I in Judge ends. of course conditional liberty releasees’ makes us all paradoxical Gould’s conclusion the use less free. compulsori- law enforcement officers of Privacy erodes margins, first at the but ly samples extracted blood as a tool in the eliminated, once protections its are lost for investigation of crimes is not for a law good, and the resultant damage rarely, if purpose. enforcement ever, Today, undone. opted the court has There were valid reasons for the Found comprehensive for profiling preference ers’ decision to establish a protected us, least among and in so doing, probable in the Fourth cause Amendment jeopardized has respectfully us all. I dis- and for the Court’s decisions to demand sent.

some suspicion sort individualized

support programmatic searches KOZINSKI, undertak Judge, dissenting: Circuit en for law enforcement I purposes. con technologies judicial New test the con that, tinue to believe the absence of a hand, science. On the one hold out amendment, constitutional those reasons promise of more effective law enforce guide should our decision. Terry, 392 ment, hope and the that we will be deliv J., (Douglas, ered from scourge of crime. On the dissenting) (“Perhaps step such a is desir hand, they other often achieve these ends cope able to with modern forms of lawless by intruding, ways never imagin before .... ness Until the Fourth Amendment able, protected into the realms by the rewritten, ... person and the effects Fourth Amendment. Which is no doubt beyond of the individual are the reach of why Supreme Court has told us to be all agencies until there are wary of power technology “this (and grounds reasonable proba believe guaranteed privacy.” shrink the realm of cause) ble that a criminal venture has been States, 27, 34, 121 Kyllo v. United launched.”). launched or is about to be 150 L.Ed.2d 94 Finally, no one should take comfort from The heat sensor technology issue in the fact that today’s decision is well-inten- Kyllo promising was a new tool for law tioned —or that it is purportedly limited to enforcement, except for one small defect: convicted offenders. As Justice Brandéis police get It let the information about what wrote, once going people’s was on inside homes— something the Fourth Amendment gener- it is also immaterial that the intrusion ally prohibits without a warrant. DNA was in Experi- aid of law enforcement. fingerprinting in point. is another case ence should teach us to be most on our good The it police identify news is that lets guard protect liberty to when the Gov- far people easily pos- more than would be purposes ernment’s are beneficent. using technology. sible retro The bad naturally Men born to freedom are alert people news is that those could well be us. repel liberty by to invasion of their evil- minded greatest dangers rulers. The to completes period Once Kincade his liberty release, lurk in supervised insidious encroachment he becomes an ordi- really we people to the brings us Hav- Which everyone else. just like

nary citizen about, and me. namely you worry to need recovers his society, he to debt ing paid his jus- can be fingerprints collecting If DNA police rights, Amendment full Fourth multi- plurality’s on the basis of tified his authority to invade greater have no act, hard factor, then it’s gestalt high-wire The anyone else’s. than sphere private from keep can the database how see we govern- is whether question difficult everybody. Of include expanding diminished exploit Kincade’s may ment give up course, already has to anyone who still while he is rights Fourth Amendment drug testing— for alcohol or bodily fluids signature, DNA his to obtain probationer athletes, customs pilots, high airline school investigating thousands use it in so it can driving people suspected inspectors future, nationwide, for past of crimes un- easy prey be while intoxicated —would Displaying of Kincade’s life. the rest But, with multi-factor test. mushy der the power of positive in the faith exuberant shoehorn waggling, little we can opinion answers plurality technology, the notes, blood plurality in. As the rest of us yes, I resounding but with a question this day we are born taken from us from of its bells and Stripped skeptical. remain die, day and on till the we pretty much theory to be whistles, seems plurality’s exactly hap- many days in What between. good idea that pretty this: have We veins? after it our pens to that blood leaves crimes in the have committed people who care, presuming know or Most of us don’t others to commit likely than past more all) (if isn’t it at that whatever we consider very, very, It thus future. crimes But what if testing is discarded. used for finger- get DNA for us to their very useful labs to require medical Congress were later to can them so we use prints now finger- the excess blood for submit crimes. investigate it can be included CODIS? printing so presumption— accept legal But if we analy- balancing Applying plurality’s once by anyone here questioned —that sis, this would pressed I'm to see how hard release he will supervised Kincade leaves Amendment Fourth anyone’s violate else, authorizing the just everyone like to be would continue rights. The benefits solve help of his DNA now extraction are includ- samples huge. more run around the huge end later is crimes database, off we are: in the the better ed Or, it to state Fourth Amendment. found, more guilty parties will be More reverse, taking Kincade’s the reason if un- more innocents will be cleared and release is supervised he’s DNA while On known victims will be identified. crime later, it seems help solve crimes that it will costs ledger, the other side of his after justifiable to take blood equally onto meager. By glomming would be Ex-pro- release. supervised pur- he off other already comes blood extracted for likely to commit just as elimi- bationers are would have poses, the government probation, now on as the people plurality crimes the as nated what identifies database piercing in the factor —the including negative them CODIS most serious Moreover, more it’s surely help Op. solve even crimes. at 836-38. would of the skin. any plurality the most of us have say minor intrusion hard to the Balancing to our pin- happens mere to what taking expectation of blood-—a as sees from the in the doc- our veins benefits once it leaves the “monumental” blood prick against— it to office; certainly expect how the we don’t it unclear tor’s society, op. we have no Arguably, to us. differently be returned as balance could be struck privacy of expectation more current reasonable than ones. ex-probationers as parties turned over to third This isn’t an issue we can blood leave for Later, day. another expan- when further than we do in our trash cans or abandoned proposed, sions of CODIS information v. Green bank records. See California from the database will have been credited wood, 39-41, solving hundreds or thousands of (1988) (no ex 100 L.Ed.2d 30 reasonable crimes, and we will have become inured to pectation privacy materials left the idea that government is entitled to street, public garbage); like United States large hold databases of DNA fingerprints. Miller, 435, 442-43, U.S. highlights important This aspect of (1976) (no 48 L.Ed.2d reasonable Fourth opinions: only Amendment Not do expectation privacy in material con they today’s reflect values giving effect records, veyed party, to third like bank to people’s expectations pri- reasonable conveyed even if in confidence and for a vacy, they shape also future values purpose). limited And without a reason our changing experience altering what expectation privacy, able there isn’t expect we come to from our government. even a “search” for Fourth Amendment highly A expansive opinion plurali- like the Kyllo, 533 purposes. ty’s, one that draws no hard lines and why important S.Ct. 2038. Which is it is revels in the boon that technology new will recognize that the Fourth Amendment enforcement, provide to law engraved is an primarily taking intrusion here is not expansion. invitation to future And when blood, fin but seizure of the DNA comes, expansion inevitable we will gerprint and its inclusion a searchable look to regime approved today we database. say, the new baseline and this too must be just step beyond OK because it’s one small plurality’s approach will cut even thing approved. the last we Eugene techniques closer to home as our for ex- Volokh, Slippery The Mechanisms tracting improve identifying in- Slope, 116 Harv.L.Rev. 1077-1114 easily formation can more obtained (2003). My colleagues plurality in the as- saliva, from urine and or from hair follicles that, comes, day sure us when that inadvertently pulled during out a visit to line, vigilant guard will stand but plurali- the barber or hairdresser. As the very then the begin line—never clear to out, n.37, ty points op. go at 838 we can’t with—will have shifted. The fishbowl will anywhere or much anything do without look like home. leaving identifying bread-crumb trail of Anyone who doubts that CODIS will DNA matter. If legitimate we have no expand, prodded by appetite the voracious expectation bodily such mate- enforcement, of law has to consider rial, possible impediment what can there growth fingerprint databases. having government be to collect what Edgar when J. Hoover became head behind, signa- we leave extract its DNA FBI, of what was to become the Jus- every- ture and enhance CODIS to include tice Department’s fingerprint files con- Perhaps my colleagues plural- one? in the only prints tained of those who had at ity living feel comfortable in a world where point some passed through the criminal keep every- can track of Hoover, justice system. uni- who favored whereabouts, one’s or perhaps believe fingerprinting, versal to expand moved given dangers it’s inevitable of modern aggressively database and local lobbied life. But I anonymity mourn the loss of law enforcement officials to prints submit regime such a in bring. step will to the FBI. He took a further 87 4 have become consequence, we cy. aAs all civil servants. fingerprinting began fingerprints on having to our Act, passed accustomed Registration

The Alien The database. prints government a million file in some over eventually delivered Cole, agencies, Suspect A. that law enforcement suggestion Simon the FBI. See to FBI, destroy the fin- Fingerprinting must History including A Identities: of 246^47 wrongfully of those who were gerprints and Criminal Identification Automated Integrated booked, FBI’s later re- Today, the and were arrested and System contains by reac- Fingerprint leased, today greeted Identification be would people, 47 million over fingerprints of to a disdainful apathy from ranging tions to a “acquired related including prints to come Why? Because we have snigger. licens- employment, for background check totally innocent people accept —even justice pur- non-criminal ing, and other expectation legitimate no people—have state, voluntarily poses” “submitted and that’s fingerprints, their agen- local, enforcement law federal that. Justice, Fed. Bureau Dep’t cies.” U.S. recognizes commendably Judge Gould IAFIS, Investigation, Kin- using troubling implications (last http://www.fbi.gov/hq/cjisd/iafis.htm DNA for today his cade’s status to extract 2004). re- states Aug. Several visited supervised to after he ceases use all license drivers’ quire fingerprints release, day wheth- leaves for another but See, e.g., Cal. Veh.Code applicants. to have his be entitled might er Kincade § 42-2- 12517.3(a)(1); § Colo.Rev.Stat. his sta- from CODIS once DNA removed 107(2)(a); Transp. Code Tex. government sought changes. Had the tus 521.142(b)(1). by itself has all § California as a of the DNA justify to the extraction li- 22 million drivers’ of over prints compli- ensuring Kincade’s measure file, of Motor Dep’t see holders on cense re- supervised ance the terms his with Outstanding by Vehicles, Licenses Driver lease, agree with tempted I would be (2003), http://www.dmv. County no government did Judge Gould. But the ca.gov/about/profile/dl-outs-by-county.htm, officer thing. probation Kincade’s such Bus. lawyers, Cal. prints as the as well ex- have did seek to Kincade’s not welfare § and certain & Prof.Code ex- supervise him—blood tracted to better Inst.Code & recipients, Welf. Cal. typing purposes was for DNA traction 10830(b)(1). § also Nat’l Conf. condition, nor was explicit probation Implemen- Legislatures, Biometrics State probation offi- any showing there that the (2002), at by State Legislation tation Kin- extracting cer determined that had http://www.ncsl.org/programs/esnr/ DNA was nec- typing blood and his cade’s fingerprint da- all these licenseD.htm. Not his chances essary improve or desirable to form, currently searchable tabases are successfully probation. The completing ability to store given improving but our clearly probation shows that record only it’s electronically, biometric identifiers Kincade to submit blood officer ordered a matter of time. DNA Act. comply sample finger- great expansion Because the justify the thus The seeks era of the modern printing before came his DNA will precisely extraction so blood ushered jurisprudence Fourth Amendment for the in the CODIS database be available States, 389 U.S. in Katz v. United his life. rest of (1967), it 19 L.Ed.2d accepts enthusiastically plurality judicial bal- by any proceeded unchecked an- already has justification and thus priva- this ancing against right the personal question Judge would swered the Gould reasonable government exercise of power matter, practical in keep reserve. As under contemporary Fourth Amendment moreover, the chance that Kincade could standards. The forcible extraction of have his DNA removed from CODIS blood, however, not mandated by Congres- completes database once he supervised his command, sional by but dictates of law release about the same as the chance efficiency, enforcement is different. Be- that fingerprinted, someone arrested and ginning with California, Schmerber v. innocent, eventually but found could force U.S. 86 S.Ct. 16 L.Ed.2d 908 the FBI fingerprints to delete his from its (1966), Supreme Court has recognized database, namely nil. I sympathize While that while a lawfully person may arrested Judge with Gould’s reluctance speak on expectations have privacy lessened an issue that might be better resolved subject be to other searches incident to later, on this record we have no choice: arrest, required no one is to submit to extraction Kincade’s blood DNA beyond “intrusions body’s surface” ab- typing justified must be on the ambitious sent a “clear indication” that the desired grounds by advanced and evidence be by would found such a search. accepted by the plurality, or at all. 1826; Id. at 86 S.Ct. see also Skin- For eloquently expressed the reasons by Ass’n., ner v. Ry. Labor Executives’ Judge dissent, Reinhardt his and those 602, 616, 103 L.Ed.2d above, stated I cannot agree that the sus- (“[I]t (1989) is obvious that this physi- picionless extraction of blood to include intrusion, cal skin, penetrating beneath the DNA in Kincade’s the CODIS database infringes expectation upheld can be under the Fourth Amend- society is prepared recognize as reason- put ment. The time to the cork back in able.”). certainly While convicted felons the brass bottle is genie now—before the have expectations lessened of privacy, the escapes. legitimate governmental needs identified majority by Judge Gould sim-

HAWKINS, Judge, Circuit dissenting: not, view, ply my do justify particu- this intrusive, type lar suspicionless search. We asked whether the forced extrac- felons, tion of blood from certain convicted Judge properly questions Gould whether supervised as condition release and for it is sample to retain the reasonable be purpose of retention without limit time yond period supervised release —in database, in a national DNA violates perpetuity, according to this I record. Fourth My colleagues Amendment. have Reinhardt, agree however, Judge written exhaustively and well on the sub- present this case does issue. Al ject. My purpose necessarily is not to though currently supervised Kincade is replow ground, their my but to set forth release, ignore we cannot the data thoughts own on this difficult question. him obtained from while that status will be stored long beyond and used that peri provide convicted felons to Asking proof od of time. This use will not serve the identity, whether fingerprint or DNA Gould, needs viewed, Judge identified sample, should Gould Judges “general but the interest Reinhardt both law persuasively argue, enforce through justi ment” that “special lens of the needs” the Court has held cannot abstract, See, fy doctrine. I quar- suspicionless e.g., Fergu have no searches. Charleston, rel with the notion that this City could be son v. (2001).1 L.Ed.2d 205 neither the Constitution

Enforcing exercise. polling nor a contest

popularity restrains Rights Bill of it, law enforcement and, along with

power by our unrestrained In a world

efficiency. citizen, Amendment, every convict-

Fourth supply a not, forced to might be

ed un- crimes More would sample. solved, just as would

doubtedly be requirement. no warrant if there

case were Madison that Mr. the world

But that is not for us. I created Congress First

and the conse- the drastic

sincerely hope will not projects Judge Reinhardt

quences however, do, agree that I pass.

come to currently implemented— Act as

the DNA retention of blood

forcible extraction the Fourth limitation —violates

without Therefore, respectfully I

Amendment.

dissent. Petitioner,

Ranjeet KAUR, Attorney ASHCROFT,

John

General, Respondent.

No. 02-72302. Appeals, Court

United States

Ninth Circuit. 7, 2003. Nov.

Argued Submitted 19, 2004. Aug.

Filed notes, day; Judge Reinhardt Court's ries Ferguson most of the 1. While popula- felons are privacy expectations involved the needs cases have convicted reduced, supervised large, than those on tion release, rather not eliminated. car- I do not believe that distinction notes his CODIS retains someday pre- into CODIS will be able to profiles if individual DNA forever —even given dict likelihood individual completed convicted offenders have their

Case Details

Case Name: United States v. Thomas Cameron Kincade

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 18, 2004

Citation: 379 F.3d 813

Docket Number: 02-50380

Court Abbreviation: 9th Cir.