Banks v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 18, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

RICHARD M . BANKS; M ARY
LAFFICER D OY LE; STANLEY
A LLEN ACU FF; M ELA N IE POOL
ALPHIN ; and LISA RENEE BELL,

Plaintiffs-Appellants,

v.

U N ITED STA TES; LEO N ID A S
RALPH M ECHAM , Director, No. 06-5068
Administrative Office of the United
States Courts; ALBERTO R.
GONZALES, Attorney General;
ROBERT S. M UELLER, III, Director,
Federal Bureau of Investigation;
DAVID E. O’M EILIA, United States
Attorney; BRAD STEW ART, Chief
Probation Officer, United States
Probation Office,

Defendants-Appellees.

Appeal from the United States District Court
for the N orthern District of Oklahom a
(D .C . N o. 05-C V-278-TC K)

Robert Ridenour, Assistant Federal Public Defender (Paul D. Brunton, Federal
Public D efender, and Barry L. Derryberry, Assistant Federal Public D efender,
with him on the brief), Tulsa, Oklahoma, for Plaintiffs-Appellants.

Loretta Finience Radford, Assistant United States Attorney (David E. O’M eilia,
United States Attorney, and Kevin C. Leitch, Assistant United States Attorney, on
the brief), Tulsa, Oklahoma, for Defendants-Appellees.

_________________________________

Before BR ISC OE, HOL LOW AY, and O’BRIEN, Circuit Judges.
_______________________________

H O L LO W A Y, Circuit Judge.

Government collection of deoxyribonucleic acid (“DNA”) samples has

caused considerable controversy. From State proposals to expand DNA extraction

to misdemeanants, to federal DNA statutes designed to assist police in solving

crimes, detractors allude to a police state reminiscent of George Orwell’s dystopia

portrayed in 1984. In this case, the challenged federal statute, The DNA Analysis

B acklog Elimination A ct of 2000, 1 requires convicted felons to submit a DNA

sample for inclusion in a national database. The database is used for law

enforcement identification purposes; in judicial proceedings if otherwise

admissible; for criminal-defense purposes; and for a population-statistic database

for identification research, or for quality-control purposes, if personally-

identifiable information is removed.

W e must decide w hether the Fourth Amendment permits compulsory DNA

testing of the Plaintiffs, non-violent felony offenders subject to the Act, in the

absence of individualized suspicion that they have committed additional crimes.

1
DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135 (Dec.
19, 2000), as amended by USA PA TRIOT Act of 2001, Pub. L. No. 107-56, 115
Stat. 272 (Oct. 26, 2001), as amended by Justice For All Act of 2004, Pub. L. No.
108-405, 118 Stat. 2260 (O ct. 30, 2004) (“the Act”).

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Applying a totality-of-the-circumstances test, we hold that the Act is

constitutional because the Government’s interest in extracting DNA from the

Plaintiffs outweighs their interests in avoiding the intrusions upon their privacy.

I. BACKGROUND

A. The DNA Analysis Backlog Elimination A ct

DNA is a double-helix shaped nucleic acid held together by hydrogen

bonds and composed of base pairings of Adenine and Thymine and Cytosine and

Guanine, which repeat along the double-helix at different regions (referred to as

short-tandem-repeat loci, or STR loci). In re Fisher, 421 F.3d 1365, 1367 (Fed.

Cir. 2005); United States v. Kincade, 379 F.3d 813, 818-19 (9th Cir. 2004).

W hen analyzed, these STR loci reveal the presence of various alleles, genic

variants responsible for producing a particular trait, that represent themselves

differently in virtually everyone except identical twins, who share the same DNA.

See Kincade, 379 F.3d at 818 n.5, 818-19.

To obtain and profile this information, DNA is extracted from a cell, and

the short tandem repeats are copied millions of times. After separating and

marking the short-tandem-repeat sites, an analyst can determine the number of

repeats at each of the loci. See id. at 818-19. (The FBI generates a 13-loci DN A

profile.) Id. Since there is only an infinitesimal chance that two people’s DNA

will be identical in these variable regions, analysts can compare DNA profiles and

exclude distinguishable suspects from suspicion.

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 Given the power of DNA as an identification tool, Congress passed the

DNA Analysis Backlog Elimination Act of 2000 requiring those convicted of a

“qualifying Federal offense” to provide “a tissue, fluid, or other bodily sample . .

. on which . . . [an analysis of that sample’s] deoxyribonucleic acid . . .” can be

carried out. 42 U.S.C. §§ 14135a(c)(1)-(2) & (a)(1)-(2). The Bureau of Prisons

collects the DNA samples from qualified offenders who are in custody, and the

federal probation office collects the DNA samples from qualified offenders who

are on release, parole, or probation. Id. at §§ 14135a(a)(1)-(2).

In the Act’s original form, qualifying federal offenses w ere primarily

limited to violent crimes, such as murder, voluntary manslaughter, and sexual

abuse. But in 2004, Congress passed the Justice For All Act of 2004, Pub. L. No.

108-405, 118 Stat. 2260 (Oct. 30, 2004), which expanded the definition of

“qualified Federal offense” to include “[a]ny felony.” 42 U.S.C. § 14135a(d)(1)

(the Act as amended by 118 Stat. 2260). Providing a DNA sample is an explicit

condition of qualified offenders’ supervised release. 18 U.S.C. § 3583(d).

Refusing to submit a D NA sample under the Act is a class A misdemeanor,

punishable under Title 18 of the U nited States Code, 42 U.S.C § 14135a(a)(5),

and therefore also a breach of the supervised-release conditions, see 18 U.S.C. §§

3563(a)(1) & 3583(d) (stating that those on probation or supervised release shall

not commit an additional federal, state, or local offense).

After the Attorney General, the Director of the Bureau of Prisons, or the

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probation office collects an offender’s DNA sample, the collecting party provides

each DNA sample to the Director of the Federal Bureau of Investigation (FBI).

42 U.S.C. § 14135a(b). The FBI Director then analyzes the DNA sample and

includes the results in the Combined DNA Index System (CODIS), an FBI-

created, national database that catalogues D NA profiles from numerous sources,

including federal and state convicts, persons who have been charged in an

indictment or information with a crime, DNA samples recovered from crime

scenes, and from relatives of missing persons. 42 U.S.C. § 14132(a). CODIS

“allow s State and local forensics laboratories to exchange and compare DNA

profiles electronically in an attempt to link evidence from crime scenes for which

there are no suspects to DNA samples of convicted offenders on file in the

system.” H.R. Rep. 106-900(I), at 8 (2000).

Once the Director uploads a DNA profile into CODIS, the profile may be

disclosed only to criminal-justice agencies for law enforcement identification

purposes; in judicial proceedings if otherwise admissible; to a criminal defendant

for criminal-defense purposes; and for a population-statistic database for

identification research and protocol-development purposes, or for quality-control

purposes, if personally-identifiable information is removed. 42 U.S.C. §§

14132(b)(3)(A)-(D). See 42 U.S.C. § 14135e(b) (stating that DNA profiles may

be used only for specified purposes). Those who violate these provisions might

have their access to CODIS cancelled, and the Act criminally penalizes those who

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disclose a DNA profile without certain authorization. 42 U.S.C. § 14132(c)

(cancellation provision); 42 U.S.C. § 14135e(c) (prescribing up to a $250,000 fine

and one-year imprisonment for each instance of disclosure).

In addition to these restrictions, the Act is also sensitive to post-conviction

proceedings: a felon’s DNA information must be expunged from the system if the

felon’s conviction is reversed or dismissed. 42 U.S.C. § 14132(d).

B. Procedural H istory

All of the Plaintiffs were convicted of non-violent felonies. Richard Banks

pleaded guilty to one count of bank fraud and w as sentenced to 35 months’

imprisonment and 5 years’ supervised release. M ary Doyle pleaded guilty to one

count of theft of government funds and was sentenced to five years’ probation.

Stanley Acuff pleaded guilty to one count of wire fraud and was sentenced to 16

months’ imprisonment and 3 years’ supervised release. Acuff committed m ore

crimes w hile on supervised release— false impersonation and knowingly

concealing stolen property— so the district court revoked his term of supervised

release and sentenced him to 12 months’ imprisonment and 2 years’ supervised

release. M elanie A lphin pleaded guilty to misprision of a felony, which related to

her failure to report another’s possession with intent to distribute

methamphetamine. Alphin was sentenced to five years’ probation. Lisa Bell

pleaded guilty to one count of using a false social security number and was

sentenced to 14 months’ imprisonment and 3 years’ supervised release. W hile on

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supervised release, Bell committed more crimes— false statement and false use of

a social security number— so, as with Acuff, the court revoked Bell’s term of

supervised release and sentenced her to 12 months’ and 1 day imprisonment and

23 months’ supervised release.

The Government requested a DNA sample from each Plaintiff, scheduling

M ay 17, 2005, as the collection day, but they all refused to provide a sample and

instead filed this lawsuit requesting declaratory relief and a permanent injunction

enjoining the Government from forcing them to comply with the Act.

After converting the Plaintiffs’ action into a civil case, the district court,

sitting en banc, subjected the A ct to scrutiny under the Fourth Amendment’s

special-needs test and the Fourth Amendment’s totality-of-the-circumstances test.

See Banks v. Gonzales, 415 F. Supp. 2d 1248 (N.D. Okla. 2006). Based on

precedent and the parties’ briefs and oral arguments, the court held in an

impressive and convincing Opinion and Order that the Act passed constitutional

muster under the Fourth Amendment. It therefore granted the G overnment’s

motion to dismiss and denied the Plaintiffs’ request for a permanent injunction

and declaratory relief.

Under the totality-of-the-circumstances test, the district court balanced the

degree to which the Act interferes with the Plaintiffs’ privacy interests against the

degree to which profiling the Plaintiffs’ DNA promotes a legitimate governmental

interest. After noting that parolees, supervisees, and probationers, such as

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Plaintiffs, have a significantly diminished expectation of privacy, the court

concluded that extracting D N A from these individuals is a minimal intrusion. O n

the other side of the balancing scale, the court concluded that the Government has

a significant and compelling interest in identifying all felons through DNA

profiling, a significant interest in ensuring that parolees comply with their release

requirements and are returned to prison or otherwise punished if they fail to do

so, and a significant interest in combating recidivism. In light of these significant

governmental interests, and the minimal intrusions upon these convicted felons on

release, the district court concluded that the Act is constitutional.

In the alternative, the district court upheld the Act under a special-needs

test. Following United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003), the

district court found that the Act serves a special need beyond law enforcement,

the desire to build a DNA database. Once again, the district court then balanced

the intrusion upon non-violent felons’ privacy against the G overnment’s interest

in obtaining DNA from these individuals. Describing and then balancing the

same interests identified above, the court concluded that the G overnment’s

interests in profiling the DNA outweigh the felons’ interests in avoiding the

intrusion. The district court therefore held that the Act is constitutional under the

special-needs test.

Since the court concluded that the Act is constitutional under both the

totality-of-the-circumstances test and the special-needs test, the court granted the

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Government’s motion to dismiss and denied the Plaintiffs’ request for declaratory

relief and a permanent injunction. The Plaintiffs now appeal, and we exercise

jurisdiction under 28 U.S.C. § 1291.

II. D ISC USSIO N

W e review de novo the district court’s decision granting the G overnment’s

motion to dismiss under Fed. R. Civ. P. 12(b)(6). Sutton v. Utah State Sch. for

Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). W e accept as true the

complaint’s well-pleaded factual allegations and will affirm the district court’s

decision only if the Plaintiffs cannot prove any set of facts supporting their claim

for relief. See id.

A.

The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .” U.S. Const. amend. IV. The “ultimate

touchstone of the Fourth Amendment is ‘reasonableness’ . . . .” Brigham C ity v.

Stuart, 126 S.Ct. 1943, 1947 (2006).

Government-forced compliance with a blood draw constitutes a search

subject to the Fourth Amendment. Skinner v. Railway Labor Executives’ Ass’n,

489 U.S. 602, 616 (1989). Likewise, analyzing the DNA contained within the

blood sample, or even from a cheek swab, must pass Fourth Amendment scrutiny.

Id. See Schlicher v. Peters, 103 F.3d 940, 942-43 (10th Cir. 1996) (stating that

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“the collection, analysis and storage of blood and saliva . . . is a search and

seizure within the meaning of the Fourth Amendment”).

A lthough much ink has been spilled on the Fourth-Amendment question w e

must address in this appeal— whether the DNA Analysis Backlog Elimination Act

of 2000, as amended, passes constitutional muster under the Fourth

Amendment— our sister circuits have taken different analytical routes to

analyzing DNA-indexing statutes. W hile the Second and Seventh Circuits have

applied a special-needs analysis, see Green v. Berge, 354 F.3d 675 (7th Cir.

2004); Roe v. M arcotte, 193 F.3d 72 (2d Cir. 1999), the Third, Fourth, Fifth,

Eighth, Ninth, Eleventh, and District of Columbia Circuits apply a reasonableness

test informed by the totality of the circumstances, see United States v. Kraklio,

451 F.3d 922, 924-25 (8th Cir. 2006); Johnson v. Quander, 440 F.3d 489, 496

(D.C. Cir. 2006); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005);

Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir. 2005); United States v.

Kincade, 379 F.3d 813 (9th Cir. 2004); Groceman v. U.S. Dep’t of Justice, 354

F.3d 411 (5th Cir. 2004); Jones v. M urray, 962 F.2d 302 (4th Cir. 1992). Despite

this initial disagreement, each of these circuit courts has arrived at the same

conclusion: the federal DNA Act and its State law analogues survive Fourth-

Amendment scrutiny.

Like the circuit split on w hich Fourth-Amendment test to apply, our own

precedents are divided. In three successive opinions, this Court applied a totality-

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of-the-circumstances test to substantially similar DNA-indexing statutes; in each

case, we ultimately concluded that the statutes did not violate the Fourth

Amendment. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir. 1998) (citing

Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), with approval and upholding a

State DNA-indexing statute under the Fourth Amendment’s totality-of-the-

circumstances test); Schlicher, 103 F.3d at 943 (same); Boling, 101 F.3d at 1339-

40 (applying the totality-of-the-circumstances test and concluding that a State

DNA-indexing statute is constitutional).

But in United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003), this Court

upheld a federal DNA statute under a special-needs test. The Kimler Court held

that “[t]he DNA Act . . . is a reasonable search and seizure under the special

needs exception to the Fourth Amendment’s warrant requirement because the

desire to build a DNA database goes beyond the ordinary law enforcement need.”

Id. at 1146. Notably, Kimler neither explained why building a D NA database is a

special need, nor applied a balancing test to determine whether this special need

outweighed the defendant’s right to privacy. See id. M oreover, Kimler cited

Shaffer, Schlicher, and Boling— all Tenth Circuit cases that applied the totality-

of-the-circumstances test to DNA-indexing statutes— for the proposition that the

statute at issue was constitutional under the special-needs test.

There is no apparent rationalization for Kimler’s break from our prior case

law. Further, the fact that our prior precedents upheld State DNA-indexing

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statutes, as opposed to the federal statute challenged here, does not materially

change our analysis concerning which Fourth-Amendment test to apply. Nor does

the fact that the Plaintiffs here are on parole, supervised release, or probation,

whereas the offenders in our prior cases were prisoners. See Padgett, 401 F.3d

at 1279 (observing that “[i]f the Supreme Court approves dispensing with the

special needs analysis for probationers, we are persuaded that we may take a

similar approach in cases involving prisoners”). Thus, while w e do not eliminate

the possibility that the A ct satisfies the special-needs test, we follow Shaffer,

Schlicher, and Boling, all decided before Kimler, by applying the totality-of-the-

circumstances test here.

B.

1.

As noted, this Court and others have generated multiple opinions

addressing federal and State D NA-indexing statutes. These authorities, however,

do not expressly control the outcome here. The challenged statutes in our

Shaffer, Schlicher, and Boling cases are indistinguishable in all material respects

but one: the A ct, as amended, requires all felons to submit a DNA sample,

whereas the statutes in those cases required DNA samples only from felons who

comm itted crimes typically solved by using DNA evidence, such as sexual

assaults. W e decide whether this distinction matters by applying the Fourth

Amendment’s totality-of-the-circumstances test.

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 The Supreme Court has described the totality-of-the-circumstances test as

one where “the reasonableness of a search is determined by assessing, on the one

hand, the degree to which it intrudes upon an individual’s privacy, and on the

other, the degree to which it is needed for the promotion of legitimate

governmental interests.” United States v. Knights, 534 U.S. 112, 119-20 (2001)

(internal quotations omitted). In Knights, a State court sentenced the defendant to

probation for a drug offense. Id. at 114. As part of the defendant’s probation, he

agreed to “[s]ubmit his . . . person, property, place of residence, vehicle, personal

effects, to search anytime, with or without a search warrant, warrant of arrest or

reasonable cause by any probation officer or law enforcement officer.” Id. at 114

(alteration and omission in original). Three days after the defendant was placed

on probation, the police noticed that the defendant’s dispute with a local gas and

electric company coincided with vandalism done to that company’s power

transformer and telecommunications vault. Id. Aware of the defendant’s

probation order and its search condition, a local detective set up surveillance at

the defendant’s residence, discovered evidence that the defendant had indeed

vandalized the gas and electric company’s equipment, and ultimately searched the

defendant’s residence. Id. at 115. The search revealed evidence all but

definitively proving that the defendant vandalized the equipment. Id.

The Supreme Court applied a reasonableness test in Knights, gauged by the

totality of the circumstances, to determine whether the government violated the

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Fourth Amendment by searching the defendant’s residence. Id. at 118. The Court

began by noting that the defendant’s status as a probationer subject to a search

condition informed both sides of its calculation. Id. at 119. Although the

probation condition served a notice function— making the defendant aware that he

was subject to a suspicionless search— the defendant’s status as a probationer also

carried with it intrinsic weight in the government’s favor. Specifically, the C ourt

observed that

[i]nherent in the very nature of probation is that probationers do not
enjoy the absolute liberty to w hich every citizen is entitled. . . . Just
as other punishments for criminal convictions curtail an offender’s
freedoms, a court granting probation may impose reasonable
conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens.

Id. (internal quotations and citation omitted).

Adding to the defendant’s diminished privacy expectations, the Court cited

Department of Justice statistics describing probationers’ recidivism rate as

significantly higher than the general crime rate. Id. at 120 (citing U.S. Dept. of

Justice, Office of Justice Programs, Bureau of Justice Statistics, Recidivism of

Felons on Probation, 1986-89, pp. 1, 6 (Feb. 1992); U.S. Dept. of Justice

Statistics, Probation and Parole Violators in State Prison, 1991, p. 3 (A ug. 1995)).

Equally troubling, the Court found that probationers have an even greater

incentive than the ordinary criminal to conceal their criminal activities and

dispose of incriminating evidence because they are aware that they may be subject

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to supervision and the attending consequences of violating their probation

conditions. Id. Thus, “[the State’s] interest in apprehending violators of the

criminal law, thereby protecting potential victims of criminal enterprise, may

therefore justifiably focus on probationers in a way that it does not on the

ordinary citizen.” Id. at 121. W ith this framew ork in mind, the Court upheld the

search in Knights. Id. at 121-22. See generally Samson v. California, 126 S.Ct.

2193, 2196 (2006) (holding that a suspicionless search of a California parolee,

authorized by a California statute, did not violate the Fourth Amendment).

Applying the K nights totality-of-the-circumstances test here, we must

balance the degree to w hich DNA profiling intrudes upon the Plaintiffs’

privacy— keeping in mind that these are non-violent felons on parole, supervised

release, or probation— against the significance of the governmental interests

served by DNA profiling.

W e first performed this balancing in Boling, where the plaintiff challenged

a Colorado statute requiring inmates to provide the State with a DNA sample

before their release on parole if they had been convicted of an offense involving a

sexual assault. Boling, 101 F.3d at 1338. Although Boling relied in part on “the

specific relevance of DNA evidence to prove sexual assaults,” id. at 1340, this

court seemed especially persuaded by the similar uses to which both DNA and

fingerprints may be put— despite the offender’s underlying conviction. For

example, Boling quoted at length the Fourth Circuit’s exploration of the analogy

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between fingerprinting and DNA profiling:

[W ]hen a suspect is arrested upon probable cause, his identification
becomes a matter of legitimate state interest and he can hardly claim
privacy in it. W e accept this proposition because the identification of
suspects is relevant not only to solving the crime for which the
suspect is arrested, but also for maintaining a permanent record to
solve other past and future crimes. This becomes readily apparent
when we consider the universal approbation of “booking” procedures
that are followed for every suspect arrested for a felony, whether or
not the proof of a particular suspect’s crime will involve the use of
fingerprint identification. Thus a tax evader is fingerprinted just the
same as is a burglar.

Boling, 101 F.3d at 1339 (quoting Jones, 962 F.2d at 306-07) (omissions and

alterations in original).

The Boling decision also relied on similar language from the Ninth

Circuit’s opinion in Rise: “‘[T]he information derived from the blood sample is

substantially the same as that derived from fingerprinting— an identifying marker

unique to the individual from whom that information is derived.’” Id. at 1340

(quoting Rise v. Oregon, 59 F.3d 1556, 1559 (9th Cir. 1995)). Thus, Boling

upheld the statute because the inmate had diminished privacy rights, a blood test

or cheek swab imposes only a minimal intrusion, and the government has a

legitimate interest in solving past and future crimes by using DNA evidence in

substantially the same manner as fingerprint evidence. Id.

After Boling, this Court twice had the opportunity to address the

constitutionality of a State DNA-indexing statute. See Schlicher, 103 F.3d at 942;

Shaffer, 148 F.3d at 1181. In both cases, several State prisoners challenged State

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laws requiring them to provide a DNA sample because they had been convicted of

certain crimes, such as sex-related crimes, violent crimes, or other crimes in

which authorities collect biological evidence. Schlicher, 103 F.3d 941; Shaffer,

148 F.3d at 1181. Neither panel found it necessary to look beyond Boling: “W e

see no need to reiterate here that which was well said in Boling . . . [so we affirm]

the district court’s judgment.” Schlicher, 103 F.3d at 943. See also Shaffer, 148

F.3d at 1181.

Contrasting Knights and these Tenth Circuit precedents underscores an

important distinction: the Plaintiffs here have a qualitatively higher privacy

expectation than the inmates in our prior cases addressing DNA-indexing statutes.

And as the Seventh Circuit’s Judge Easterbrook recognized, courts addressing

DNA-indexing statutes must be aware of the privacy continuum that applies to

offenders moving through the criminal justice system:

Prisoners make up the first category. Their privacy interests
[implicated by DNA profiling] are extinguished by the judgments
placing them in custody. . . .
Persons on conditional release— parole, probation, supervised
release, and the like— are the second category. They have acquired
additional liberty but remain subject to substantial controls. . . .
DNA collection is less invasive than a search of one’s home, and as
information from DNA may be very helpful in solving crimes . . .
there is no problem under the Fourth Amendment.
Felons whose terms have expired are the third category.
Established criminality may be the basis of legal obligations that
differ from those of the general population. . . . Collecting felons’
DNA, like collecting their fingerprints, handwriting exemplars, and
other information that may help solve future crimes (and thus
improve the deterrent force of the criminal sanction) is rationally

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 related to the criminal conviction. . . .
Those who have never been convicted of a felony are the last
distinct category. W hat is “reasonable” under the fourth amendment
for a person on conditional release, or a felon, may be unreasonable
for the general population.

Green, 354 F.3d at 679-81 (Easterbrook, J., concurring).

Although the Plaintiffs are not currently incarcerated, they fall clearly

within Judge Easterbrook’s second category, convicted felons on release “[who]

are not entitled to the full panoply of rights and protections possessed by the

general public.” Kincade, 379 F.3d at 833; see Green, 354 F.3d at 680. Indeed,

the Supreme Court has noted that “[a] broad range of choices that might infringe

constitutional rights in a free society fall within the expected conditions . . . of

those who have suffered a lawful conviction,” M cKune v. Lile, 536 U.S. 24, 36

(2002), and that “conditional releasees may claim ‘only . . . conditional liberty

properly dependent on observance of special parole restrictions’ that extend

‘substantially beyond the ordinary restrictions imposed by law on an individual

citizen.’” Kincade, 379 F.3d at 834 (citing M orrissey v. Brewer, 408 U.S. 471,

478, 480 (1972); Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S.

357, 365 (1998)). Similarly, the Supreme Court in Knights informed both sides

of its reasonableness determination with the defendant’s status as a convicted

felon serving on probation. Knights, 534 U.S. at 119.

This reduced privacy expectation proved important in United States v.

Conley, where the Sixth Circuit upheld the same Act at issue here against a

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challenge by an individual convicted of bank fraud. 453 F.3d 674, 674, 680-81

(6th Cir. 2006). In Conley, the defendant refused to comply with the A ct’s

requirement that she submit a DNA sample as a condition of her supervised

release. Id. at 675. She argued, inter alia, that the Act violated the Fourth

Amendment because the government’s interest in collecting DNA from a white-

collar criminal like her did not outweigh her privacy interest. Id. at 678. She so

concluded because the rate of recidivism is much lower in white-collar criminals

than violent criminals, and collecting her D NA would not exonerate her of crime.

Id. Applying both a special-needs test and a totality-of-the-circumstances test,

the Sixth Circuit rejected the defendant’s arguments. The court concluded that

the government’s interest in properly identifying convicted felons outweighed the

defendant’s “sharply reduced expectation of privacy, and the minimal intrusion

required in taking a blood sample for DNA analysis for identification purposes

only . . . .” Id. at 680.

Likew ise, the Eleventh C ircuit has upheld both State and federal DNA-

indexing statutes because the “legitimate interest in creating a permanent

identification record of convicted felons for law enforcement purposes outweighs

the minor intrusion involved in taking prisoners’ saliva samples and storing their

DNA profiles, given prisoners’ reduced expectation of privacy in their identities .

. . .” Padgett, 401 F.3d at 1280; see also United States v. Castillo-Lagos, 147

Fed. A ppx. 71, 75 (11th C ir. 2005) (unpublished) (upholding the federal DNA-

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indexing statute against a challenge by a non-violent felon on probation).

2.

W ith these principles in mind, we now determine the reasonableness of the

challenged intrusion by balancing the degree to which DNA profiling intrudes

upon the Plaintiffs’ privacy against the significance of the Government’s interest

in profiling their DNA.

Courts have recognized several distinct governmental interests supporting

the need to profile a convicted felon’s DNA. First, the G overnment may use

DNA evidence to identify a qualified federal offender when independent evidence

demonstrates that a crime has been committed. See Banks, 415 F. Supp. 2d at

1263-64. It is well settled that once an individual has been convicted, “his [or

her] identity bec[omes] a matter of compelling interest to the government . . . and

[the individual] can no longer assert a privacy interest in [certain marks of

identification].” Sczubelek, 402 F.3d at 184. Given the myriad ways in which

criminals attempt to conceal their identities— whether through disguise, changed

names, or changed physical features— traditional methods of identifying suspects

are not always adequate. Having a previously submitted DNA profile alleviates

this problem. As far as scientists have determined, DNA is the most reliable

m eans of identifying individuals. There is an infinitesimal chance that any tw o

individuals will share the same DNA profile unless they are identical tw ins.

Thus, a DNA match between two samples excludes the rest of the population from

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suspicion to a near 100% certainty.

Perhaps most important, DNA can also help solve crimes when no other

evidence points to a particular suspect. Numerous courts addressing DNA-

indexing statutes have explained that “the identification of suspects is relevant not

only to solving the crime for which the suspect is arrested, but also for

maintaining a permanent record to solve other past and future crimes.” Boling,

101 F.3d at 1339 (citing Jones, 962 F.2d at 306). See, e.g., Kincade, 379 F.3d at

838. As noted, DNA is a dramatically effective tool for matching suspects to

DNA left at a crime scene:

Even a suspect with altered physical features cannot escape the
m atch that his D N A might make with a sample contained in a DNA
bank, or left at the scene of a crime within samples of blood, skin,
semen or hair follicles. The governmental justification for this form
of identification, therefore, relies on no argument different in kind
from that traditionally advanced for taking fingerprints and
photographs, but with additional force because of the potentially
greater precision of D NA sampling and matching methods.

Sczubelek, 402 F.3d at 185-86 (citing Jones, 962 F.2d at 307).

The Government’s interest in constructing a DNA database to solve crimes

partially aligns w ith the Plaintiffs’ interests: a D NA database would help

exonerate innocent defendants and convicts. W hile a criminal defendant may

submit his or her own DNA sample for comparison with the sample discovered at

a crime scene, a negative result would not necessarily exculpate the defendant. If

other evidence ties the defendant to a crime, even though the defendant is

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innocent, the government would be free to argue that two perpetrators committed

the crime. The government could easily explain the evidence: the DNA came

from the defendant’s accomplice and the other evidence points to the defendant’s

participation. Because the negative DNA test does not eliminate this possibility,

and because the other evidence will tie the defendant to the crime, a jury might

convict the defendant despite his actual innocence and a negative DNA-test result.

W ith a comprehensive database like CODIS, however, the DNA discovered

from the crime scene might match with a previously unsuspected individual,

whom the innocent defendant might be able to show acted alone. The defendant

will at least have a better opportunity to create reasonable doubt about whether

the government indicted the guilty person. See Akhil Reed Amar, A Search for

Justice in Our Genes, N.Y. Times, June 7, 2002, at A33 (describing this crime-

solving benefit). The Plaintiffs’ and the Government’s interest in exculpating the

innocent appears even more compelling given the frequency of criminal

conspiracies involving complex, non-violent crimes, increasing the likelihood that

the G overnment will raise a dual-perpetrator theory despite a negative D NA-test

result.

Finally, collecting DNA combats recidivism by solving crimes and

removing criminals from the streets and by deterring future criminal acts by

felons on release, presumably because the felons know that they are more easily

identifiable when the authorities have their DNA. See Rise, 59 F.3d at 1562

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(stating that the D NA-indexing statute furthers “the public’s incontestable interest

in preventing recidivism”). The Supreme Court has repeatedly recognized that

rates of re-arrest among parolees and probationers are significantly higher than

the general crime rate. See Knights, 534 U.S. at 120; Griffin v. W isconsin, 483

U.S. 868, 880 (1987) (stating that probationers are “more likely than the ordinary

citizen to violate the law”). This data, in turn, generates the compelling interest

in reducing offenders’ recidivism rates. See Ew ing v. Califorina, 538 U.S. 11, 26

(2003) (stating that “[r]ecidivism is a serious public safety concern . . .

throughout the N ation”). As with solving crimes and identifying suspects,

collecting a DNA sample furthers this substantial governmental interest.

W hile the Government puts forth substantial interests justifying the

challenged intrusion, most courts have not given the Plaintiffs’ claimed interests

more than minimal weight. For example, blood and saliva tests impose minimal

intrusions. See Skinner, 489 U.S. at 625 (stating that blood tests are

comm onplace, safe, and “do not constitute an unduly extensive imposition on an

individual’s privacy and bodily integrity”). Indeed, our Boling decision cited

favorably a Ninth Circuit decision, Rise, 59 F.3d at 1560, concluding that

“although obtaining DNA information requires drawing blood as opposed to

‘inking and rolling a person’s fingertips,’ that difference does not render the

intrusion on Fourth Amendment interests more than minimal.” Boling, 101 F.3d

at 1340 (citation omitted). M oreover, the Plaintiffs “can no longer assert a

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privacy interest in [DNA as a] means of identification” because their convictions

made their identities a matter of compelling interest to the government.

Sczubelek, 402 F.3d at 184.

The Plaintiffs attempt to overcome the minimal weight on their side of the

scale by criticizing the link between the Government’s stated interests and the

Plaintiffs’ status as non-violent felons.

First, the Plaintiffs dispute DNA’s utility in solving non-violent crimes.

Aplt. Br. at 11-12. For example, the Plaintiffs note that every DNA-based

exoneration (cases w here the incarcerated individual was exonerated using DNA

evidence) between 1989 and 2003 involved crimes of murder and rape. Id. at 13-

14 (citing Gross, et al., Exonerations in the United States 1989 Through 2003, 95

J. Crim. L. & Criminology 523, 529 (2005)). Since the Government is unlikely to

solve past or future crimes using the Plaintiffs’ DNA, they conclude that the

Government lacks a significant interest in collecting their DNA to solve crimes.

Id. at 12.

To be sure, DNA might prove less valuable in solving non-violent crimes

than violent crimes, making the G overnment’s interest in DNA testing more

compelling with respect to felons convicted of violent crimes. It is important to

realize, however, that DNA can be extracted from hair, saliva, and numerous

other parts of our bodies that even a non-violent criminal could leave behind on a

piece of inculpatory evidence. See W illiam C. Thompson et al., Evaluating

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Forensic DNA Evidence (pt. 2), The Champion, M ay 2003, at 25 (citing studies

documenting the presence of identifiable quantities of human D NA on doorknobs,

coffee cups, and other common items); Amar, supra, at A33 (stating that “[i]f

[DNA is] linked to birth certificates and drivers’ licenses, the database could foil

various kinds of identity fraud, benefiting [sic] both law enforcement and crime

victims”).

W e also note that the exoneration data that the Plaintiffs cite reflect

exonerations in a period when the federal DNA-indexing statute did not permit

the Government to extract DNA samples from non-violent felons, potentially

skewing the data in favor of the Plaintiffs’ argument. Nor does the data indicate

how frequently the database had been used in attempts to exonerate non-violent

felons, who are likely serving shorter prison terms than violent felons and thus

less likely to receive preferential access to limited DNA-testing resources until

laboratories can eliminate the backlog, which the Act was designed to

accomplish. See, e.g., Bill D edman, A Rape Defendant With No Identity But A

DNA Profile, N.Y. Times, Oct. 7, 1999, at A1, A16 (stating that as of 1999, which

is during the period studied by the Plaintiffs’ authority, approximately 180,000

boxes of evidence, known as rape kits, sat unexamined on shelves in police

departm ents across the nation and that New York was trying to eliminate its ow n

backlog of 12,000); U.S. Department of Justice, Bureau of Justice Statistics,

Survey of DNA Crime Laboratories, 1998 (2000) (stating that as of December

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1997, also within the period studied by the Plaintiffs’ authority, 69% of publicly

operated forensic crime labs across the Nation reported a DNA-analysis backlog

totaling 6,800 subject cases and 287,000 convicted offender samples).

Ultimately, following the Plaintiffs’ logic to its conclusion would repudiate

our recognition in Boling that there is “universal approbation of ‘booking’

procedures that are followed for every suspect arrested for a felony, whether or

not the proof of a particular suspect’s crime will involve the use of fingerprint

identification.” Boling, 101 F.3d at 1339 (citing Jones, 962 F.2d at 306-07)).

Thus, we observed that “a tax evader is fingerprinted just the same as is a

burglar.” Id. (citing Jones, 962 F.2d at 306-07). Put otherwise, the effectiveness

of the Government’s plan need not be high where the objective is significant and

the privacy intrusion is minimal. See Jones, 962 F.2d at 308 (citing M ichigan

Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (validating the state’s use of

roadblocks to discover drunk drivers despite resulting arrest rate of only 1.5% );

Bell v. W olfish, 441 U.S. 520, 559 (1979) (validating body-cavity search of

pretrial detainees despite only one instance in which an inmate was discovered

attempting to smuggle contraband”)).

M oreover, the Government’s interest in solving crimes must be combined

with the Government’s interest in accurately identifying suspects w ho might try to

conceal their identities in a variety of ways. W hile fingerprint evidence might

often be sufficient, we have always recognized the Government’s compelling need

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to accurately identify offenders. And on this score, the Plaintiffs’ status as non-

violent felons does not undermine DNA profiling as an effective way to identify

them.

The Plaintiffs also argue that “resting on assumptions that non-violent

offenders present a substantial recidivism problem which DNA will address is

mere fiction . . . .” Aplt. Br. at 14. The essence of this argument is that while

non-violent offenders might have higher recidivism rates than the general

population, DNA will not solve this problem because we cannot assume that non-

violent offenders will commit crimes typically solved by using DNA evidence.

See id. at 13-15.

The Plaintiffs correctly concede that non-violent offenders have higher

recidivism rates than the general population. Interestingly, the Supreme Court

recently explained that “released property offenders . . . [even] had higher

recidivism rates than those released after committing violent, drug, or public-

order offenses.” Ewing, 538 U.S. at 26. The same report that the Supreme Court

relied on also indicated that 69.1% of non-violent felons w ere re-arrested within

three years of release, of w hich 19.9% were re-arrested for violent offenses,

33.7% were re-arrested for property offenses, 32.6 % were re-arrested for drug

offenses, and 28.6% were re-arrested for public-order offenses. U.S. Dept. of

Justice, Bureau of Justice Statistics, Profile of Nonviolent Offenders Exiting State

Prisons (2004), at http://www.ojp.usdoj.gov/bjs/pub/pdf/pnoesp.pdf. Likewise,

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the Sixth Circuit cited more recent data demonstrating that “the rate of recidivism

in white-collar criminals is very close to the rate of recidivism in firearm

offenders, and is only slightly lower than felons convicted of robbery.” Conley,

453 F.3d at 679 (citing M easuring Recidivism: The Criminal History

Computations of the Federal Sentencing Guidelines, U.S.S.C., Exh. 11 (M ay

2004)).

These statistics reveal that not only do non-violent offenders present nearly

the same recidivism problem as violent offenders, but they are committing crimes

that DNA might help solve (for example, violent offenses, drug offenses, and

property offenses). M oreover, although recidivism rates vary with factors like the

offender’s age and type of conviction, the high likelihood that non-violent

offenders w ill re-offend— and therefore, as the Supreme Court recognized in

Knights, be put in the position to conceal their crimes and identities from the

authorities— underscores the Government’s interest in obtaining the most accurate

identification information it can from these individuals. Again, the Plaintiffs’

status as non-violent offenders certainly reduces the likelihood that their DNA

will help solve past or future crimes. But the Government’s interest here is far

more real than the “fiction” the Plaintiffs’ describe.

Finally, the Plaintiffs’ core concern appears to be that DNA can reveal a

breathtaking amount of private information, such as probabilistic evidence about

the contributor’s genetic defects, predispositions to disease, and perhaps even

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sexual orientation. See A plt. B r. at 11. The fact that the party extracting a DN A

sample profiles only the Plaintiffs’ junk DNA (DNA thought not to have a

function) might minimize this concern, as these junk DNA samples “w ere

purposely selected because they are not associated with any known physical or

medical characteristics.” H.R. Rep. No. 106-900(I) at * 27. But see Kincade, 379

F.3d at 819 n.6 (citing W . W ayt Gibbs, The Unseen Genome: Gems Among the

Junk, Sci. Am., Nov. 2003, at 29 (questioning the conclusion that junk DNA does

not contain genetic-programming material)).

Regardless, the Act imposes stringent restrictions on the entire collection

and profiling process. For example, the A ct eliminates the G overnment’s

discretion as to the offenders from whom it may collect a DNA sample. As noted,

the Act clearly defines the offenders who must comply with the Act. See 42

U.S.C. § 14135a(a)(1)-(2). The Act also expressly limits the Government’s right

to use a DNA sample: it may be used only (1) for law enforcement identification

purposes; (2) in judicial proceedings if otherwise admissible; (3) for criminal-

defense purposes; and (4) for a population-statistic database for identification

research, or for quality-control purposes, if personally-identifiable information is

removed. 42 U.S.C. § 14135e(b) (stating that the test results may be used only

for specified purposes); 42 U.S.C. § 14132(b)(3) (listing the specified purposes).

Those who violate these provisions might have their access to CODIS cancelled,

and the Act criminally penalizes those who disclose a DNA profile without

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certain authorization. 42 U.S.C. § 14132(c) (cancellation provision); 42 U.S.C. §

14135e(c) (prescribing up to a $250,000 fine and one year imprisonment for each

instance of disclosure). The Act also states that the DNA information must be

expunged if the felon’s conviction is reversed or dismissed. 42 U.S.C. §

14132(d).

These restrictions allow the Government to use an offender’s DNA profile

in substantially the same w ay that the Government uses fingerprint and

photographic evidence— to identify offenders, to solve past and future crimes, and

to combat recidivism. Only here, DNA provides a more advanced and accurate

m eans to accomplish these w orthy governmental ends. In other words, “the DN A

profile derived from the defendant’s blood sample establishes only a record of the

defendant’s identity— otherwise personal information in which the qualified

offender can claim no right of privacy once lawfully convicted of a qualifying

offense.” Kincade, 379 F.3d at 837.

To be sure, it is possible to put DNA evidence to a more sophisticated and

intrusive use. W e therefore credit the seriousness of the Plaintiffs’ concerns. But

the Plaintiffs’ “assertion that the state might misuse the information derived from

[their] DNA samples, when [they] make[] no allegations of any specific misuse,

fails to state a justiciable controversy.” Boling, 101 F.3d at 1341. See also

Sharon Begley, Bill Seeking to Ban DNA Discrimination Isn’t Really Necessary,

W all St. J., Feb. 6, 2004, at B1 (stating that a recent study found that “states w ith

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[DNA anti-discrimination] laws had no fewer cases of genetic discrimination than

states w ithout them . . . [because] almost no genetic discrimination is occurring”);

Patricia Thomas, DNA as D ata, Harvard M agazine, Jan.-Feb. 2004, at 48

(describing a genetics professor at Harvard M edical School as saying that genetic

discrimination will be pointless in the long run because every individual’s genome

will reveal vulnerability to some health problem). As the Ninth Circuit

recognized in Kincade, “our job is limited to resolving the constitutionality of the

program before us, as it is designed and as it has been implemented. In our

system of government, courts base decisions . . . on concretely particularized facts

developed in the cauldron of the adversary process and reduced to an assessable

record.” Kincade, 379 F.3d at 838 (footnote and citation omitted). There is no

evidence that the Government will subject the Plaintiffs to a greater privacy

invasion than extracting their DNA sample for the limited statutory purposes,

which serve the Government’s substantial interest in identifying offenders,

solving crimes, and reducing recidivism rates.

W e also reject the speculation that allowing the Government to profile

convicted felons’ DNA opens the door to DNA profiling of every citizen who at

some point has a diminished expectation of privacy. This alarmism ignores that

“[a] broad range of choices that might infringe constitutional rights in a free

society fall within the expected conditions . . . of those who have suffered a

lawful conviction,” M cKune, 536 U.S. at 36.

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 C.

Upon our balancing the degree to which DNA profiling intrudes upon the

Plaintiffs’ privacy against the significance of the Government’s interests in

profiling their DNA, the balance weighs in the Government’s favor.

On one side of the scale, the Government has legitimate interests in

accurately identifying offenders, solving past and future crimes, and combating

recidivism. W e recognize that the Government might not solve as many past and

future crimes using DNA profiles of non-violent offenders— a fact that certainly

reduces the Government’s interest in collecting DNA from these offenders. But

the probability that the Government will use non-violent felons’ DNA to solve

crimes is still notable given that DNA can be extracted from numerous bodily

sources that a non-violent felon could leave behind at the scene of a non-violent

crime, drug crime, property crime, or violent crime— crimes that non-violent

felons commit with much greater frequency than the general population. This fact

also underscores the G overnment’s interest in combating non-violent felons’

recidivism rates. DNA serves as an identification tool that promotes accuracy in

these important endeavors.

M oreover, we would ignore this Court’s limited role if w e minimized these

significant governmental interests after envisioning a non-existent parade of

horribles sanctioned by a hypothetical law. See Boling, 101 F.3d at 1341.

On the other side of the scale, felons on conditional release have lesser

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privacy interests than do ordinary citizens, and the privacy invasion caused by

blood and saliva draws is relatively small. The next chronological step in the

process, creating the D NA profile, currently involves a minimal intrusion because

the Act severely restricts the uses to which DNA profiles may be put:

To be sure, genetic fingerprints differ somewhat from their
m etacarpal brethren, and future technological advances in DNA
testing (coupled with possible expansions of the DNA Act’s scope)
m ay empow er the G overnment to conduct wide-ranging “DNA
dragnets” that raise justifiable citations to George Orwell. Today,
however, the DNA Act applies only to felons, and CODIS operates
much like an old-fashioned fingerprint database (albeit more
efficiently).

Johnson, 440 F.3d at 499 (citations omitted).

Given the Plaintiffs’ diminished privacy rights, the minimal intrusion

involved in obtaining a DNA sample, and the Act’s restrictive provisions, and

given the legitimate governmental interests in accurately identifying offenders,

solving past and future crimes, and combating recidivism, we hold that collecting

and profiling the Plaintiffs’ D N A, as authorized and regulated by the DNA

Analysis Backlog Elimination Act of 2000, as amended, does not violate the

Fourth Amendment. In doing so, we align ourselves with the overwhelming

weight of authority on this issue. See W ord v. U.S. Probation Dept., 439

F.Supp.2d 497, 506 n.2 (D. S.C. 2006) (stating that at least 24 States have passed

laws requiring all felons to provide a DNA sample and that, to the court’s

knowledge, no federal court or state appellate court had declared the statutes

-33-
unconstitutional); Kraklio, 451 F.3d at 924 (collecting cases and stating that every

circuit to address a DNA-indexing statute has upheld the statute as constitutional

under the Fourth Amendment).

III.

The district court did not err by granting the Government’s motion to

dismiss and denying the Plaintiffs’ motion for declaratory and injunctive relief.

Its decision is therefore

A FFIR M E D.

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