ither the Supreme Court nor this court has previously reached the conclusion we do today, does not militate against our application of the totality of the circumstances test to the particular facts presented and concluding that the government's legitimate interests out-weigh Pool's privacy interests.
III
Pool also advances four other constitutional challenges to being required to give a DNA sample in order to qualify for pre-trial release. He asserts that "the mandatory DNA testing and profiling condition" (1) "violates procedural due process because it eliminates an independent judicial determination as to the necessity of the condition," (2) violates his "Eighth Amendment right to be released on conditions that are not excessive in light of his circumstances," (3) "violates the separation of powers by depriving the court of its role in deter mining release conditions," and (4) "is an unconstitutional extension of federal power." We do not find any of these arguments to be persuasive.
A. Pool has not shown that requiring him to provide a DNA sample violates his rights to due process.
Pool asserts that he was denied procedural due process because the district court could not consider his specific situation in determining whether to require a DNA sample. This argument fails in light of the Supreme Court's opinion in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 4, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). See also Doe v. Tandeske, 361 F.3d 594, 596 (9th Cir. 2004) (quoting Conn. Dep't). In Connecticut Department of Public Safety, the Supreme Court held that the state's decision to require registration as a sex offender on the basis of a person's prior conviction rather than on the basis of the person's dangerousness did not amount to a violation of due process because "due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme." 538 U.S. at 4, 123 S.Ct. 1160. Here, Congress's determination to require a DNA sample as a condition of pre-trial release where the district court has made a probable cause determination similarly does not deny Pool procedural due process.
To the extent that Pool also claims a violation of substantive due process based on his fundamental "liberty interest in remaining free of compelled DNA production," his assertions are not persuasive. As we have previously noted, at least once a probable cause determination has been made, if not before, Pool has no right to withhold his identification from the government. See Kincade, 379 F.3d at 837; see also Jones, 962 F.2d at 306 (holding that "when a suspect is arrested on probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it"). In addition, although Pool may have a right against the physical invasion occasioned by giving a DNA sample, it is firmly established that blood tests — which are considerably more invasive than a cheek swab — are common-place and not significant invasions. Kincade, 379 F.3d at 836 (citing Skinner, 489 U.S. at 625, 109 S.Ct. 1402). In light of these precedents, we cannot find that requiring Pool to provide a DNA sample is a violation of his right to substantive due process.
The alleged intrusion on any of Pool's rights is also reduced by the provision that the DNA sample may be expunged if he is found not guilty or his case is dismissed. See 42 U.S.C. § 14132(d)(1)(A).
B. Pool has not shown that requiring him to provide a DNA sample violates his right under the Bail Clause of the Eight Amendment.
Pool argues that requiring him to provide a DNA sample as a condition for pre-trial release constitutes excessive bail under the Eighth Amendment because "DNA testing and profiling is simply not relevant to the two issues to be addressed by pretrial conditions of release: assuring the appearance of the defendant in the court case, and providing for the safety of the community." We do not find this argument persuasive. In Salerno, the Supreme Court noted that "[t]he only arguable substantive limitation of the Bail Clause is that the Government's proposed conditions of release or detention not be `excessive' in light of the perceived evil." 481 U.S. at 754, 107 S.Ct. 2095. Here, in light of Pool's minimal interest against providing identification, the limited nature of the intrusion, and the potential value of the DNA identification in solving crimes and deterring the commission of future crimes, we cannot say that requiring a DNA sample is "excessive."
C. Pool has not shown that requiring him to provide a DNA sample violates the constitutional doctrine of separation of powers.
Pool asserts, referencing United States v. Klein, 13 Wall. 128, 80 U.S. 128, 146-47, 20 L.Ed. 519 (1871), that Congress violated the separation of powers doctrine in enacting the Bail Reform Act because "it prescribes a rule for courts to follow without allowing courts to exercise independent judicial power." More recent precedent renders Pool's argument less than persuasive. In Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), the Supreme Court noted that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion," and that "[a] sentencing scheme providing for individualized sentences rests not on constitutional commands, but on public policy enacted into statutes." Id. at 467, 111 S.Ct. 1919 (internal quotations and citations omitted). Moreover, in United States v. Lujan, 504 F.3d 1003, 1007 (9th Cir. 2007), we rejected a separation of powers argument challenging the collection of DNA from a convicted felon as a condition of supervised release. We do not think that the expansion of the class of persons covered by the statute changes the nature, or result, of the separation of powers analysis.
D. Pool's argument that requiring him to provide a DNA sample is an unconstitutional extension of federal power is not well taken.
Finally, Pool attempts to argue that § 14135a is unconstitutional because it "extends broadly to all individuals who are arrested, facing charges, or convicted, without regard to whether they fall within any federal criminal jurisdiction." Again, we do not find Pool's assertion to be well taken. First, as Pool admits, the district court here only interpreted the statute as it applies to federal arrestees, defendants and convicts. We too limit our review to Pool's claim as a person who has been charged with a federal felony. In United States v. Reynard, 473 F.3d 1008, 1021 (9th Cir. 2007), we rejected an argument that a statute was "unconstitutional because the federal government lacks the authority under the Commerce Clause to require a federal offender to provide a DNA sample as a condition of his supervised release." Although the statute here at issue is broader than the statute before us in Reynard, our reasoning in Reynard if not binding is persuasive.
We explained:
Reynard's argument lacks merit. The federal government's authority to regulate the conditions of a federal offender's supervised release arises when the individual commits a federal crime. The federal government is not required to demonstrate that it has independent authority to impose each individual condition of supervised release upon an offender. Nonetheless, in this instance, the individual condition of supervised release at issue, standing alone, is a valid exercise of the federal government's authority pursuant to its Commerce Clause power. Further, such an exercise of Congress's Commerce Clause power does not offend principles of federalism.
473 F.3d at 1021-22.
IV
In this case, we agree with the magistrate that his finding of probable cause was a "watershed event" that allows for the totality of the circumstances exception to the Fourth Amendment's warrant requirement. We conclude that here, the government's interest in definitively determining Pool's identity outweighs his privacy interest in giving a DNA sample as a condition of pre-trial release in part because the government's use of the DNA is limited to identification purposes and there is no indication that the government intends to use the information for any other purpose or may legally do so. Finally, we decline Pool's claims that the mandatory DNA collection provision of 18 U.S.C. § 3142(b) and (c)(1)(A) is unconstitutional because it (1) violates his right to due process, (2) violates his rights under the Bail Clause of the Eighth Amendment, (3) violates the doctrine of separation of powers, and (4) is an improper extension of federal power. The district court's order requiring Pool to give a DNA sample as a condition to pre-trial release is AFFIRMED.
LUCERO, Circuit Judge, concurring:
I concur in the majority opinion, but write separately for two reasons. First, I seek to stress the narrowness of our holding, identifying several issues we do not decide today. Second, I wish to state my basis for agreeing that Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), does not control the outcome of this appeal.
I A 1
In analyzing the interests of Pool at stake in this litigation, the majority opinion properly distinguishes between the physical intrusion of a buccal swab and the more amorphous — and more serious — invasion of privacy caused by governmental collection of information contained in DNA samples and profiles. In addition, we must distinguish between the collection of a DNA sample and use of a DNA profile.
An individual's genome — the full complement of DNA contained in each cell of his body — consists of several billion base pairs of DNA. Henry T. Greely et al., Family Ties: The Use of DNA Offender Databases to Catch Offenders' Kin, 34 J.L. Med. Ethics 248, 249 (2006). As the majority opinion notes, DNA profiles used in the government's Combined DNA Index System ("CODIS") do not contain information about an individual's entire genome; the profiles contain only information about short tandem repeat ("STR") occurring at thirteen different points, "loci," in the genome. (Majority Op. 1215 (citing United States v. Kincade, 379 F.3d 813, 818-19 (9th Cir. 2004) (en banc)).)
These STRs are stretches of DNA for which the DNA-replication process appears to "stutter," resulting in repeated iterations of a specific sequence of base pairs. See Greely, supra, at 249. For example, at a specific locus on a chromo-some, a particular series of base pairs may appear three times in a row for some people, but five times in a row for others. Each variation in the number of repeats is identified as a different allele. See id. at 250. For each of the thirteen loci used in the CODIS database, between seven and twenty-three alleles appear in significant numbers among the population. Id. The DNA profiles contained in the CODIS database consist of a series of numbers corresponding to the length of STRs at each of the selected loci. Id. The number of STRs evaluated for an individual's DNA profile represents a small fraction of the STRs throughout a person's genome. Id. at 249-50.
Although the biological purpose, if any, of STRs remains debated, id., STRs are not "genes": Unlike genes, STRs have not been shown to code for specific molecules of ribonucleic acid ("RNA"). Id.; see also Kincade, 379 F.3d at 818 ("These STR loci are each found on . . . non-genic stretches of DNA not presently recognized as being responsible for trait coding. . . .); Kaye, supra, at 54.
"Code for" is a term of art related to the process of transcription and translation. If a stretch of DNA "codes for" RNA, that stretch will produce a certain type of RNA during the process of transcription. RNA, in turn, usually codes for protein, which means that the RNA will produce a certain protein during the process of translation. See Greely, supra, at 249. These proteins can affect an individual's physical characteristics, such as eye color or propensity to develop certain diseases. See David H. Kaye, GINA's Genotypes, 108 Mich. L. Rev. First Impressions 51, 54 (2010).
These DNA profiles differ significantly from DNA samples. The term "DNA sample" is defined by statute as "tissue, fluid, or other bodily sample of an individual on which a DNA analysis can be carried out." 42 U.S.C. § 14135a(c)(1). That is, the sample is made up of cells from an individual which contain that person's entire genome. If fully analyzed, a sample would yield far more information than that contained in a CODIS profile, including information about all of the trait-coding DNA in the individual's genome — that is, the precise content of each of her genes.
2
Despite Pool's protestations to the contrary, at present CODIS DNA profiles are essentially useless for all but identification purposes. In this respect, they are quite similar to the information gained from fingerprinting and photographing — routine booking procedures.
Pool cites to several articles suggesting that so-called "junk DNA" may actually play an important biological function, including affecting how and when genes are expressed. E.g., Cole, supra note 2, at 56; Justin Gillis, Genetic Code of Mouse Published; Comparison With Human Genome Indicates `Junk DNA' May be Vital, Wash. Post, Dec. 5, 2002, at Al. Yet even these articles do not support Pool's assertion: "Although biologists are discovering functions for some types of `junk DNA,' none have yet claimed that the forensic STRs do function." Cole, supra note 2, at 56 (footnote omitted); see also Gillis, supra (surmising that in the future a small percentage of non-coding DNA "will prove to be regulatory regions").
"Junk DNA" is a term that generally refers to any non-genic DNA, that is, stretches of DNA that do not code for RNA. Simon A. Cole, Is the "Junk" DNA Designation Bunk?, 102 Nw. U. L. Rev. Colloquy 54, 56-57 (2007). STRs are one of several types of non-genic DNA sequence. See Greely, supra, at 249.
Even if the STRs used in CODIS contained some limited biological information, the same is true of fingerprints and photographs. As the majority opinion discusses, booking photographs might yield clues as to familial relationships. (Majority Op. 1220-21.) Such photographs necessarily contain information regarding an individual's race, gender, and ethnic characteristics. Fingerprints, too, may correlate with certain traits. See Bert-Jaap Koops Maurice Schellekens, Forensic DNA Phenotyping: Regulatory Issues, 9 Colum. Sci. Tech. L. Rev. 158, 160 n. 4 (2008) (noting that fingerprint patterns may correlate with gender, homosexuality, ethnicity, and health conditions such as congenital heart disease).
Pool points to one study showing some association between TH01(one of the CODIS loci) and the insulin minisatellite (an STR not included in the CODIS database), which correlates to susceptibility to polycystic ovary syndrome, obesity, and type-1 and type-2 diabetes. John D.H. Stead, Influence of Allele Lineage on the Role of the Insulin Minisatellite in Susceptibility to Type I Diabetes, 9 Human Molecular Genetics 2929, 2929-31 (2000). Even assuming this study could be considered admissible evidence and that it has not been discounted in the past decade, it underscores my point. By looking at a booking photograph, the government could judge whether or not Pool is obese and, consequently, glean information regarding his risk of type-2 diabetes. And reference to Pool's gender shows his susceptibility to ovarian disorders is not an issue.
Not every disease has visible risk factors, of course, and genetic data is undoubtedly more precise than visual assessment in judging the probabilities associated with certain diseases. I remain unconvinced, however, that the information contained in the CODIS database at the present time categorically differs from the information already contained in the booking photo lineups on the bookshelf of virtually every police station in the country.
Pool's efforts to categorically distinguish the information contained in CODIS DNA profiles from that contained in fingerprints are ultimately unpersuasive. Although the historical basis for allowing fingerprinting is not entirely clear, the near universal acceptance of the practice casts a long shadow over this case. See Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965) ("[Fingerprinting defendants on pre-trial release] is universally standard procedure, and no violation of constitutional rights."); United States v. Iacullo, 226 F.2d 788, 793 (7th Cir. 1955) ("[Defendant's] constitutional rights were not violated when his fingerprints were taken and at the trial used as a basis for comparison with fingerprints found on newspapers used to wrap narcotics."). As Judge Augustus Hand opined in presaging the Court's Fourth Amendment balancing jurisprudence by several decades: "Any restraint of the person may be burdensome. But some burdens must be borne for the good of the community. The slight interference with the person involved in finger printing seems to us one which must be borne in the common interest." United States v. Kelly, 55 F.2d 67, 68 (2d Cir. 1932) (citations omitted). Pool has not provided a basis for weighing the interests in DNA profiling in a manner that is different from the interests involved in fingerprinting and photography.
Yet I stress that we do not purport to decide the hypothetical case in which a future litigant may demonstrate that CODIS loci do code for RNA, or that the number of repeats at CODIS loci yield information of a type unavailable in a fingerprint or a photograph; nor do we consider a case in which the nature of the genetic information stored in the CODIS database is changed from present practice. In such a case, a defendant's interests could be vastly different. If that day arrives, a future court will conduct a totality-of-the-circumstances test anew. But for now, Pool's CODIS profile reveals only his identity, and the majority rightly factors only Pool's interest in that identity into its Fourth Amendment balancing.
I note with trepidation that the DNA Analysis Backlog Elimination Act does not facially limit DNA analysis to STRs or even noncoding DNA sequences. See 42 U.S.C. § 14135a(c)(2) (defining the DNA analysis allowed by the act as any "analysis of the deoxyribonucleic acid (DNA) identification information in a bodily sample"). Nonetheless, the executive branch has sensibly limited the information stored in CODIS, and it is that program we must evaluate today.
B
Although a CODIS profile contains less information than a DNA sample by several orders of magnitude, law enforcement must, of course, collect a DNA sample to create a DNA profile. These two actions — collection of a DNA sample and the creation of a DNA profile to be loaded onto the CODIS database — are squarely challenged by Pool. Our majority opinion affirms the district court's holding that the government may collect a DNA sample from Pool that may be "used solely for criminal law enforcement identification purposes," (Dist. Ct. Order 3), specifically, to create a DNA profile to be loaded onto the CODIS database. Having stated what the majority opinion holds, I take pains to clarify what we do not hold.
The first point, one the majority states in no uncertain terms but which bears repeating, is that this case condones DNA testing for individuals for whom a judicial or grand jury probable cause determination has been made; it does not address such sampling from mere arrestees. ( See Majority Op. 1219-20, 1228.) That distinction is highly significant. A judicial probable cause determination limits the opportunities for mischief inherent in a suspicionless search regime. As discussed further in Part II, infra, the Supreme Court has permitted some suspicionless searches when they are subject to "standardized criteria, or established routine." Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (citations omitted). However, the Court has been careful to caution that such "programmatic" searches may not be used as "a ruse for a general rummaging in order to discover incriminating evidence." Id.
There is no doubt that conviction is the key moment in reconfiguring the relationship between an individual's privacy interests and the governmental interests that may impinge upon them. Nevertheless, we cannot blind ourselves to the various other gradations in our criminal justice system. Although United States v. Scott, 450 F.3d 863 (9th Cir. 2006), clearly holds that a pre-trial releasee's "privacy and liberty interests [a]re far greater than a probationer's," id. at 873, Scott does not stand for the proposition that there is no meaningful distinction between an ordinary citizen and an individual for whom a judicial probable cause determination has been made. As this court acknowledged, "pretrial releasees must suffer certain burdens that ordinary citizens do not." Id. at 872 n. 11. In this case, unlike Scott, we consider a restriction "designed to ensure [a defendant's] appearance in court." Id.
We must not ignore admittedly finer distinctions in an effort to cram every individual into one of two categories — convict or citizen. Doing so will not remove the DNA profiling issue from the slippery slope; it would serve only to slicken the incline.
By permitting programmatic searches in the absence of particularized suspicion, we introduce a substantial danger that law enforcement personnel will use the DNA-testing regime as a pretext for obtaining evidence against individual suspects rather than as a broad-based tool for ensuring the identity of convicts and pre-trial releasees. Because of this potential for abuse, the Court has limited its approbation of programmatic searches to those "administered in good faith." Colorado v. Bertine, 479 U.S. 367, 374, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); see also Wells, 495 U.S. at 4, 110 S.Ct. 1632. Interposing the judiciary between the executive and the citizenry provides a pre-hoc bulwark against abuse in addition to the post-hoc good faith inquiry.
The second important limitation on our holding today is that we do not consider a claim of misuse of the CODIS system. Pool focuses his argument on the potential that the government may harvest intimate and revealing information from his DNA sample. We must not underestimate these legitimate concerns. Although the CODIS database uses only DNA profiles, the government must obtain a DNA sample to create the profiles. Government possession of the entire sample, with its potential to provide much more personal information, presents an unquestionable opportunity for abuse.
Nonetheless, Pool has advanced no evidence suggesting that the government will engage in the misconduct of which he warns, and we must be cognizant of the penalties for such misconduct, see 42 U.S.C. § 14135e(c). Whenever the government conducts a search, there is a risk that it will abuse its powers. For example, a law enforcement search for a firearm in a residence pursuant to a valid warrant typically involves control of the entire residence. While in control of the home, officers could commit any conceivable number of unlawful acts. Yet the potential for abuse does not trump the issue of legality of a search. Admittedly, the potential for intrusion into the widest spectrum of human privacy is present in a DNA sample, but the nature of our legal analysis remains constant.
It might also be objected that this analogy is inapt because the government exercises control over a home for only a short period of time, but seeks to maintain Pool's entire DNA sample permanently. This brings me to my third and final point regarding the limits of today's majority: We do not decide here whether the government may indefinitely retain Pool's DNA sample. Rather, we permit the government to collect Pool's DNA sample to create a DNA profile for the CODIS data-base. Because Pool's DNA has yet to be collected, we need not examine whether the government may retain his sample beyond the creation of the defendant's profile.
In the event Pool is acquitted, or that the charges against him are otherwise dismissed, Pool may have his sample and profile expunged. See 42 U.S.C. § 14132(d)(1)(A). If he is convicted, this statutory provision would not apply; nevertheless, the majority opinion does not hold that indefinite retention is permissible. As noted in the Kincade concurrence, the proposition that the government may retain an individual's entire DNA sample forever presents unique questions. See 379 F.3d at 841-42 (Gould, J., concurring); cf. Cole, supra note 2, at 57 n. 15 ("Even those who are sanguine about the privacy threat posed by profiles are concerned about the storage of samples."). It is of concern that § 14132(d)(1)(A) places the burden upon a former defendant with respect to removal. However, as was the case in Kincade, the legality of such a practice is not before us. Not until we are faced with a litigant whose case has been finalized and has left the penal system will these issues be decided. See Kincade, 379 F.3d at 841-42.
II
I write separately for a second reason: to expand upon the majority opinion's discussion of Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009). In addition to the differences between this case and Friedman stated in the majority opinion, I credit the fact that the DNA collection at issue here is conducted generally of all federal pre-trial releasees, see 18 U.S.C. § 3142(b), (c)(1). The search in Friedman was directed at a single prisoner. See 580 F.3d at 854(concluding the search was not conducted pursuant to a statutory regime). It does appear counterintuitive that a search may be permissible because it is less particularized, but the Supreme Court's holdings regarding "programmatic" searches compel this conclusion. See, e.g., Samson v. California, 547 U.S. 843, 855 n. 4, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006).
"Prior to Samson, the Court had never held that the totality of the circumstances was the appropriate test to apply in a suspicionless search of a conditional releasee. Thus, several courts had concluded that a suspicionless search could not be justified absent a special need (or some other exception)." United States v. Weikert, 504 F.3d 1, 9 (1st Cir. 2007) (emphasis omitted); see also Kincade, 379 F.3d at 843 (Reinhardt, J., dissenting) (arguing, prior to Samson, that the Court had never approved "a programmatic search designed to produce and maintain evidence relating to ordinary criminal wrongdoing, yet conducted without any level of individualized suspicion"). This framework was upended by the Court in Samson, which held that suspicionless searches have been sanctioned both in cases involving "special needs" and in those considering "programmatic" searches. 547 U.S. at 855 n. 4, 126 S.Ct. 2193. The Samson Court further explained that it has "never held that these are the only limited circumstances in which searches absent individualized suspicion could be `reasonable' under the Fourth Amendment." Id.
The Court has provided little guidance as to the nature of a "programmatic" search. In Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), it described "checkpoints to combat drunk driving or drug trafficking" as fitting within the programmatic category. Id. at 405, 126 S.Ct. 1943. It also cited Wells, which held that the permissibility of an inventory search following impoundment turns on the degree to which such searches are standardized. Brigham City, 547 U.S. at 405, 126 S.Ct. 1943; see also Wells, 495 U.S. at 4, 110 S.Ct. 1632 ("Our view that standardized criteria, or established routine, must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." (citations omitted)); see also id. at 8, 110 S.Ct. 1632 (Brennan, J., concurring) ("Our cases clearly hold that an inventory search is reasonable under the Fourth Amendment only if it is done in accordance with standard procedures that limit the discretion of the police." (citation omitted)); cf. Bertine, 479 U.S. at 374 n. 6, 107 S.Ct. 738 ("Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria." (citation omitted)).
The dissent in Samson provides additional guidance. Criticizing the majority's holding as an abandonment of the rule that a suspicionless search must be supported by a "special need," Justice Stevens argued that "if individualized suspicion is to be jettisoned, it must be replaced with measures to protect against the state actor's unfettered discretion." Samson, 547 U.S. at 860, 126 S.Ct. 2193 (Stevens, J., dissenting). These "programmatic safeguards [must be] designed to ensure evenhandedness in application." Id.
Unlike the search held unconstitutional in Friedman, the statute challenged by Pool imposes a uniform burden on all federal pre-trial releasees. It is "programmatic" in the sense the Supreme Court appears to recognize as relevant to whether a suspicionless search is reasonable.
Obviously, the programmatic nature of a search does not mitigate its impact on individuals' privacy rights. But programmatic searches do fulfill another "essential purpose of a warrant requirement," namely "to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents." Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 621-22, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). And standard practices do limit the ability of government to use DNA profiling as a means of targeting "political opponents and disfavored minorities," Kincade, 379 P.3d at 848 (Reinhardt, J., dissenting), or harassing disfavored individuals. When combined with the legitimate government interest in ensuring Pool appears for trial and the limited intrusion upon Pool's privacy, I am convinced that the programmatic nature of the DNA profiling program is reasonable.
III
This is a vexing case. The DNA profiling system at issue promises enormous potential as an investigatory tool, but its expansion or misuse poses a very real threat to our privacy. The distinctions I attempt to draw in this concurrence are dwarfed by the magnitude of these competing interests, but we must draw lines as best we can. I therefore concur, leaving for another day difficult questions regarding the administration of CODIS and the government's retention of DNA samples.
SCHROEDER, Circuit Judge, dissenting:
This is a case in which the government seeks to extract a DNA sample as a condition of every pretrial release without either a warrant or a showing of probable cause to conduct DNA profiling. No circuit has ever before approved such a warrantless search or seizure before an individual has been convicted of any crime. DNA sampling can of course confirm identity, but it also provides infinitely more information about an individual than fingerprints. The majority and the concurring opinions now uphold the constitutionality of the proposed search and seizure because they find that Pool has failed to show that they would unduly burden his reduced privacy interests as a pretrial defendant. I disagree and would hold that the government fails to justify a Fourth Amendment exemption of this magnitude.
The latest congressional enactments challenged in this case extend mandatory DNA testing requirements to individuals who have not yet been convicted of any crime. See DNA Fingerprint Act of 2005, Pub.L. No. 109-162, §§ 1004(a)(1)(A), 1004(b), 119 Stat. 2960, 3085-86 (2006) (codified at 18 U.S.C. §§ 3142(b) and (c)(1)(A); 42 U.S.C. § 14135a(a)(1)(A)); Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, § 155, 120 Stat. 587, 611 (2006) (codified at 42 U.S.C. § 14135a(a)(1)(A)). The relevant provisions require pretrial defendants to submit to DNA testing as a condition of pretrial release. See 18 U.S.C. § 3142(b). The Attorney General has promulgated regulations ordering all federal agencies to obtain DNA samples to the extent authorized by the statute. See 28 C.F.R. § 28.12(b).
The majority would uphold the warrantless pretrial seizure by applying the "totality of the circumstances" test that balances the intrusion into privacy of the individual against the interest in protecting society as a whole. The Supreme Court has up-held searches as a condition of release under this test only after an individual has been convicted of a crime and hence has a lowered privacy interest. See, e.g., Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (upholding search conducted pursuant to California law requiring parolees to consent to suspicionless searches at any time as condition of release); United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (holding that only reasonable suspicion was needed to justify search where probationer had consented to be searched as a condition of probation).
We have twice considered statutes requiring mandatory DNA testing of those involved in the criminal justice system, and in both a majority upheld the DNA seizure only because the earlier statutes that were at issue in those cases limited the warrantless DNA seizure to persons who had been convicted of crimes. In the first, United States v. Kincade, 379 F.3d 813, 816-17 (9th Cir. 2004) (en banc), we considered the constitutionality of the DNA Analysis Backlog Elimination Act of 2000, Pub.L. No. 106-546, 114 Stat. 2726 (2000), which required DNA testing of individuals who had been convicted of certain enumerated violent felonies and who were incarcerated or on parole, probation, or supervised release. The case generated significant debate among the members of our court, and ultimately resulted in a divided en banc decision upholding the constitutionality of the search on the basis of two different Fourth Amendment theories. Compare id. at 816-40 (O'Scannlain, J., plurality opinion) (upholding DNA testing under "totality of the circumstances" theory), with id. at 840-42 (Gould, J., concurring) (concurring in judgment under special needs theory). The fact of conviction, however, was indispensable to both theories. Id. at 834 (plurality opinion) (recognizing the "transformative changes wrought by a lawful conviction"); id. at 840 (Gould, J. concurring) (focusing on special need to deter recidivism by convicted felons). Moreover, five judges dissented, concluding that the intrusion into privacy occasioned by DNA sampling could not be justified even after a lawful conviction. See id. at 842-871(Reinhardt, J., dissenting); 871-75 (Kozinski, J., dissenting); 875-76 (Hawkins, J., dissenting). The dissenting judges objected to the fact that the government sought to conduct "a programmatic search designed to produce and maintain evidence relating to ordinary criminal wrongdoing . . . without any level of individualized suspicion." Id. at 843(Reinhardt, J., dissenting). They also predicted a slippery slope toward ever-expanding warrantless DNA testing. See id. at 872(Kozinski, J., dissenting) ("If collecting DNA fingerprints can be justified [here], then it's hard to see how we can keep the database from expanding to include every-body.").
We revisited the issue when Congress expanded the same statute to reach individuals convicted of any federal felony, crime of violence, or sexual abuse crime. See United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007) (considering constitutionality of Justice For All Act of 2004, Pub.L. No. 108-405, § 203(b), 118 Stat. 2260, 2270 (2004)). Kriesel was again contentious, with the majority upholding the constitutionality of the statutory expansion on narrow grounds, over a vigorous dissent. Compare id. at 942-50(McKeown, J., majority opinion) with id. at 950-58 (B. Fletcher, J., dissenting). The majority explicitly limited its constitutional ruling to the case before it, in which the individual raising the Fourth Amendment challenge was a convicted felon. Id. at 943 n. 3 (majority opinion). The dissent contended that the reasoning of Kincade, and the government's purported interests, did not extend to those convicted of non-violent crimes. See id. at 953-58(B. Fletcher, J., dissenting).
We consider here, for the first time, a statute and associated regulations requiring mandatory DNA testing as a condition of pretrial release for every individual charged with a federal offense, a condition imposed before the individual can plead or stand trial. The majority relies on our prior holdings in Kincade and Kriesel to find Congress's expansion of DNA testing to pretrial defendants constitutional, but ignores our rationale in those cases. We held that mandatory DNA testing is consistent with the Fourth Amendment after conviction because (a) a convicted felon's privacy interest is greatly reduced in comparison to the general citizenry; and (b) the government's interest in invading such a person's privacy is greater. Kincade, 379 F.3d at 834; Kriesel, 508 F.3d at 947, 949. In Kincade, we explained that a conviction changed the analysis on both sides of the balance:
[The] transformative changes wrought by a lawful conviction and accompanying term of conditional release are well-recognized by the Supreme Court, which often has noted that conditional releasees enjoy severely constricted expectations of privacy relative to the general citizenry — and that the government has a far more substantial interest in invading their privacy than it does in interfering with the liberty of law-abiding citizens.
379 F.3d at 834. None of these considerations apply here. Similarly, in
Kriesel, we recognized that "[a]s a direct consequence of [an individual's] status as a supervised releasee, he has a diminished expectation of privacy" and held that the governmental interests advanced in
Kincade applied to convicted non-violent felons "with equal force."
508 F.3d at 947, 949. If there was, as the majority describes, a "watershed event" that justified what would otherwise be an unconstitutional seizure, the event was a conviction; not a post-arrest probable cause determination.
It is because a conviction is what distinguishes parolees, probationers, and those on supervised release from members of the general public that our court has squarely held that warrantless searches and seizures violate pretrial defendants' Fourth Amendment rights. In United States v. Scott, 450 F.3d 863 (9th Cir. 2006), we held that conditioning pretrial release upon a defendant's consent to warrantless drug testing was unconstitutional. We so held even though such testing provides very limited information and could serve a rehabilitative purpose. Our court has also decided that forcible extraction of a DNA sample from a pretrial detainee is unconstitutional. See Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009). In Friedman, the government acknowledged the DNA was taken for the law enforcement purpose of placing it in a cold case data bank. Id. at 851. We held that as a pretrial detainee, the defendant retained his clearly established Fourth Amendment rights. Id. at 860. Friedman squarely rejected the contention that the testing could be justified by our holdings in Kincade and Kriesel, because "both of those cases concerned extracting DNA from convicted felons still under state supervision," whereas Friedman had not yet been convicted of the crime with which he was charged. Id. at 857.
The majority and concurring opinions thus conflict with both Friedman and Scott in holding that a probable cause determination, rather than a conviction, constitutes the "watershed event" that results in a diminished expectation of privacy. My colleagues try to circumvent Friedman by suggesting that in Friedman, there was no statute authorizing the search, but a statute does not trump the Constitution. They dismiss Scott by suggesting that the privacy interest in one's home, which we recognized in Scott, is greater than the privacy interest in one's body. This is not supported by authority or common sense. See, e.g., Schmerber v. California, 384 U.S. 757, 769-70, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (recognizing the heightened privacy interest "with respect to intrusions beyond the body's surface").
My colleagues point as well to prison security cases that deal with pretrial defendants who are being temporarily detained in a jail or prison facility. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). They similarly point to authority involving the detention of defendants who present a demonstrated danger to the community. See United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). These cases, which deal with the conditions of confinement, and the individualized decision to detain a defendant until trial, are inapposite here, when the defendant has not yet been determined to present any flight risk or danger to the community and we are not concerned with prison security.
Absent a warrant or a showing of probable cause to conduct DNA profiling in this case, the government bears the burden to show that a Fourth Amendment exception justifies that the searches or seizures are "reasonable." United States v. Brown, 563 F.3d 410, 414-15 (9th Cir. 2009) ("A warrantless search is unconstitutional unless the government demonstrates that it `fall[s] within certain established and well-defined exceptions to the warrant clause.'"). The government cannot demonstrate that an exception under the "totality of the circumstances" approach applies because Pool, as a pretrial defendant, does not have the reduced privacy interests of the convicted felons in Kincade or Kriesel. Nor, as the majority opinion acknowledges, can the government plausibly rely on the "special needs" exception, because that exception cannot apply to searches and seizures conducted for general law enforcement purposes. See Friedman, 580 F.3d at 853. Pool does not bear the burden to establish that the government will fail to protect his privacy interests after the DNA sample is taken. Both of my colleagues misallocate the burden of proof.
Because Pool's privacy interests have not been diminished as a result of any conviction, the "intrusion" the government must justify is significant. The government seeks to seize, and indefinitely retain, not only individuals' DNA profiles, but rather samples of individuals' entire DNA. See 42 U.S.C. § 14132(b)(3); 73 Fed.Reg. 74, 932-01, 74, 937-38 (Dec. 10, 2008). These samples contain "massive amounts of personal, private data" including information about a "person's health, propensity for particular disease, race and gender characteristics, and perhaps even propensity for certain conduct." Kincade, 379 F.3d at 842 (Gould, J., concurring). The statute permits DNA samples to be disclosed to criminal justice agencies, in judicial proceedings, for criminal defense purposes, and even, if personally identifiable information is removed, for research purposes. 42 U.S.C. § 14132(b)(3).
The privacy concerns implicated by the seizure, and storage, of DNA material, and the personal information it contains, is certainly substantial. The concurring opinion makes much of the difference between DNA samples and DNA profiles, but it rightly acknowledges that the DNA sample, if fully analyzed, contains a vast amount of information. The concurring opinion diminishes the significance of the fact that the government cannot seize a DNA profile; it must seize a DNA sample in order to create a profile. The seizure and indefinite storage of the sample, which is what that the government must justify under a Fourth Amendment exception, is very different from fingerprinting and other traditional booking procedures.
The majority also errs when it suggests that we are bound by Kincade's characterization of the information produced from a DNA sample as "minimally invasive." This is not binding circuit law, as this aspect of the plurality's opinion failed to garner majority support. See Kincade, 379 F.3d at 842 (Gould, J., concurring) ("DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only more revealing in time.") Moreover, this court's decision in Kriesel held instead that any privacy concerns were reduced because of the defendant's lawful conviction. 508 F.3d at 948. It expressly refused to adopt the Kincade plurality's reasoning on the degree of invasion, noting that "[t]he concerns about DNA samples being used beyond identification purposes are real and legitimate." Id. Indeed, the Supreme Court held in Schmerber that "[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any . . . intrusions [beyond the body's surface] on the mere chance that desired evidence might be obtained." 384 U.S. at 769-70, 86 S.Ct. 1826.
Finally, the majority errs in equating the government's interests in this case with those identified in Kincade and Kriesel because under Friedman and Scott, the government may not rely on those interests when pretrial detainees are involved. Our decision in Friedman squarely forecloses the government's reliance on using the DNA samples of pretrial defendants to solve past and future crimes. See 580 F.3d at 858. Friedman held that DNA extraction from a pretrial defendant violated the Constitution where the government's purpose "was simply to gather human tissue for a law enforcement data-bank, an objective that does not cleanse an otherwise unconstitutional search." Id. Nor may the government rely on a generalized interest in preventing the commission of crimes by pretrial defendants. Scott rejected "the assumption that [a pre-trial defendant is] more likely to commit crimes than other members of the public, without an individualized determination to that effect." 450 F.3d at 874. Finally, an interest in "reducing recidivism" is meaningless where the defendant has not yet been convicted of an initial crime. In this case, Pool has no prior criminal record.
For all of the forgoing reasons, I respectfully dissent.