FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10303
Plaintiff-Appellee, D.C. No.
v. 2:09-cr-00015-
JERRY ARBERT POOL, EJG-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Argued and Submitted
December 7, 2009—San Francisco, California
Filed September 14, 2010
Before: Mary M. Schroeder and Consuelo M. Callahan,
Circuit Judges, and Carlos F. Lucero,* Circuit Judge.
Opinion by Judge Callahan;
Concurrence by Judge Lucero;
Dissent by Judge Schroeder
*The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
14013
UNITED STATES v. POOL 14017
COUNSEL
Daniel J. Broderick, Federal Defender, and Rachelle Barbour
(argued), Sacramento, California, for defendant-appellant
Jerry Arbert Pool.
Michael Risher, San Francisco, California, for amicus curiae
the American Civil Liberties Union Foundation of Northern
California.
Lawrence G. Brown, United States Attorney, and Sean C.
Flynn (argued), Assistant United States Attorney, Sacra-
mento, California, for plaintiff-appellee the United States.
OPINION
CALLAHAN, Circuit Judge:
Jerry Arbert Pool challenges the district court’s implemen-
tation of 18 U.S.C. § 3142(b) and (c)(1)(A), requiring him to
give a DNA sample as a condition of his pre-trial release.
14018 UNITED STATES v. POOL
Applying the totality of the circumstances test, we affirm the
district court. We hold that where a court has determined that
there is probable cause to believe that the defendant commit-
ted a felony, the government’s interest in definitively deter-
mining the defendant’s identity outweighs the defendant’s
privacy interest in giving a DNA sample as a condition of pre-
trial release in cases in which the government’s use of the
DNA is limited to identification purposes and there is no indi-
cation that the government intends to use the information for
any other purpose.
I
On January 8, 2009, Pool was charged in the Eastern Dis-
trict of California by indictment with possessing and receiving
child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and
2253. Pool was arrested and brought to court for his arraign-
ment on January 23, 2009. Pool had no prior criminal record
and he entered a plea of not guilty. The magistrate judge
ordered Pool released on a $25,000 unsecured bond on the
condition that he obey pre-trial conditions. Pool consented to
all pre-trial conditions except that he provide a DNA sample.
The court stayed the DNA collection to allow the parties to
brief the issue. Pool challenges the constitutionality of amend-
ments to the Bail Reform Act, 18 U.S.C. § 3142(b) and
(c)(1)(A), which require the provision of a DNA sample as a
condition for pre-trial release.1 This condition applies to most,
1
The Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1), provides:
(b) Release on personal recognizance or unsecured appear-
ance bond.—The judicial officer shall order the pretrial release
of the person on personal recognizance, or upon execution of an
unsecured appearance bond in an amount specified by the court,
subject to the condition that the person not commit a Federal,
State, or local crime during the period of release and subject to
the condition that the person cooperate in the collection of a
DNA sample from the person if the collection of such a sample
UNITED STATES v. POOL 14019
if not all, federal criminal charges. See 42 U.S.C.
§ 14135(a)(1)(A).2
The government defines DNA as “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 United States v. Kincade, 379 F.3d 813 (9th Cir.
2004) (en banc), we stated:
Through the use of short tandem repeat technology
is authorized pursuant to section 3 of the DNA Analysis Backlog
Elimination Act of 2000 (42 U.S.C. 14135a), unless the judicial
officer determines that such release will not reasonably assure the
appearance of the person as required or will endanger the safety
of any other person or the community.
(c) Release on conditions.—(1) If the judicial officer determines
that the release described in subsection (b) of this section will not
reasonably assure the appearance of the person as required or will
endanger the safety of any other person or the community, such
judicial officer shall order the pretrial release of the person—
(A) subject to the condition that the person not commit a Federal,
State, or local crime during the period of release and subject to
the condition that the person cooperate in the collection of a
DNA sample from the person if the collection of such a sample
is authorized pursuant to section 3 of the DNA Analysis Backlog
Elimination Act of 2000 (42 U.S.C. 14135a); and
(B) subject to the least restrictive further condition, or combina-
tion of conditions, that such judicial officer determines will rea-
sonably assure the appearance of the person as required and the
safety of any other person and the community, which may
include the condition that the person—
2
Section 14135a(a)(1)(A) provides that “[t]he Attorney General may, as
prescribed by the Attorney General in regulation, collect DNA samples
from individuals who are arrested, facing charges, or convicted or from
non-United States persons who are detained under the authority of the
United States.”
14020 UNITED STATES v. POOL
(“STR”), the Bureau analyzes the presence of vari-
ous alleles located at 13 markers (or loci) on DNA
present in the specimen. These STR loci are each
found on so-called “junk DNA” — that is, non-genic
stretches of DNA not presently recognized as being
responsible for trait coding — and “were purposely
selected because they are not associated with any
known physical or medical characteristics.” H.R.
Rep. No. 106-900(I) at *27. Because there are
observed group variances in the representation of
various alleles at the STR loci, however, DNA pro-
files derived by STR may yield probabilistic evi-
dence of the contributor’s race or sex. Future of
Forensic DNA Testing 35, 39-42. Even so, DNA
profiles generated by STR are highly individuated:
Due to the substantial number of alleles present at
each of the 13 STR loci (between 7 and 20, see
Future of Forensic DNA Testing 41) and wide-
spread variances in their representation among
human beings, the chance that two randomly
selected individuals will share the same profile are
infinitesimal — as are the chances that a person ran-
domly selected from the population at large will
present the same DNA profile as that drawn from
crime-scene evidence. See Future of Forensic DNA
Testing 19-22, 39-42.
Id. at 818-19 (footnotes omitted). We further recognized,
however, that “[r]ecent studies have begun to question the
notion that junk DNA does not contain useful genetic pro-
gramming material.” Id. at 818 n.6.
Once collected, a DNA sample is turned over to the Direc-
tor of the Federal Bureau of Investigation (“FBI”). 42 U.S.C.
§ 14135a(b). The FBI analyzes the DNA sample and includes
the results in the Combined DNA Index System (“CODIS”),
an FBI-created national database that catalogues DNA pro-
files from numerous sources. CODIS “allows State and local
UNITED STATES v. POOL 14021
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). The Attorney General has issued regula-
tions concerning the taking of DNA samples from arrestees.
28 CFR Part 28, 73 FR 74932, 2008 WL 5155929. The regu-
lations allow “DNA samples generally to be collected, along
with a subject’s fingerprints, as part of the identification pro-
cess,” but they need not be if the collection of DNA samples
“would not be warranted or feasible.”3 73 FR at 74934.
Pool objected to giving a DNA sample primarily on the
ground that doing so violated his rights under the Fourth
Amendment. He also challenged the law as unconstitutional
under the Eighth Amendment, and the Due Process Clause
and violative of the separation of powers doctrine.
Citing our opinion in Kincade, 379 F.3d at 839-40, the
magistrate applied the “totality of the circumstances” frame-
work to consider the constitutionality of the statute. He deter-
mined:
The judicial or grand jury finding of probable cause
within a criminal proceeding is a watershed event
which should be viewed differently from mere pre-
judicial involvement gathering of evidence. After
such a judicial finding, a defendant’s liberty may be
greatly restricted — even denied. As part of his pre-
trial release, defendant may be deprived of his very
liberty; he can be subject to electronic monitoring;
3
The regulation notes, “[f]or example, in relation to non-arrestees, DHS
will not be required to collect DNA samples from aliens who are finger-
printed in processing for lawful admission to the United States, or from
aliens from whom DNA-sample collection is otherwise not feasible
because of operational exigencies or resource limitations.” 73 FR at
74934.
14022 UNITED STATES v. POOL
he may be ordered to obey a mandatory curfew.
. . . These conditions are almost identical to those
conditions which can be imposed on a probationer or
parolee for whom a DNA testing requirement has
been found appropriate under a totality of the cir-
cumstances standard. The court finds that an up-front
requirement for finding probable cause that the
defendant has committed the charged felony places
the issue much more closely with those cases utiliz-
ing a totality of the circumstances standard.
Applying the totality of the circumstances standard, the mag-
istrate concluded that “the decision to impose the DNA test-
ing requirement on pre-trial detainees or releasees seems
clearly warranted, if not compelling,” because “an arrestee’s
identity obviously becomes a matter of legitimate state inter-
est,” and an arrestee “has a diminished expectation in privacy
in his own identity.”
In denying Pool relief, the magistrate stressed what his
holding did not encompass.
It does not authorize DNA sampling after citation or
arrest for infractions or misdemeanors, as in these
cases there will be no judicial finding of probable
cause soon after the arrest or citation, or no grand
jury finding before or after the arrest. See Fed. R.
Crim. P. 7(a). It does not authorize police officials to
perform DNA sampling prior to a judicial finding of
probable cause which must be made within 48 hours
after arrest and detention. Again, it is the finding of
probable cause on criminal charges which allows the
court to set release conditions similar to those of pro-
bation and parole, which is the underpinning of the
court’s holding in this case.
The magistrate stayed the DNA collection pending Pool’s
appeal to the district court judge. The district judge conducted
UNITED STATES v. POOL 14023
a de novo review, found the magistrate’s findings and analysis
to be “exhaustive, well reasoned and supported by the
record,” and reiterated that “no Fourth Amendment or other
Constitutional violation is caused by the universal require-
ment that a charged defendant undergo a ‘swab test’ or blood
test when necessary, for the purposes of DNA analysis to be
used solely for criminal law enforcement identification pur-
poses.”
On July 16, 2009, the district court issued an order denying
the motion to amend the release order and upholding DNA
testing. Pool filed a timely notice of appeal and requested a
stay of the DNA collection, which the magistrate granted.
II
Title 18 U.S.C. § 3145(c) provides for an immediate appeal
from a release or detention order. The district court’s determi-
nation that the mandatory DNA collection provision of the
Bail Reform Act does not violate Pool’s constitutional rights
is reviewed de novo. United States v. Schales, 546 F.3d 965,
971 (9th Cir. 2008) (“A challenge to the constitutionality of
a federal statute is a question of law that is reviewed de
novo.”).
[1] Our review of the district court’s order starts with the
recognition that “[t]he compulsory extraction of blood for
DNA profiling unquestionably implicates the right to personal
security embodied in the Fourth Amendment, and thus consti-
tutes a ‘search’ within the meaning of the Constitution.” Kin-
cade, 379 F.3d at 821 n.15; see also Friedman v. Boucher,
580 F.3d 847, 852 (9th Cir. 2009) (holding that “[t]here is no
question that the buccal swab constituted a search under the
Fourth Amendment”).
[2] Accordingly, as the statute’s compulsion of a DNA
sample does not contemplate the issue of a search warrant, the
provision will pass constitutional muster only if it “falls
14024 UNITED STATES v. POOL
within certain established and well-defined exceptions to the
warrant clause.” United States v. Brown, 563 F.3d 410, 414-
15 (9th Cir. 2009) (internal quotation and citation omitted).
Here, the district court considered two exceptions to the war-
rant clause, the “special needs” test and the “totality of the cir-
cumstances” test.
A. The Special Needs Test
The use of the special needs test would be problematic. The
test was developed in cases outside of the law enforcement
context and the Supreme Court has been leery of applying it
to criminal cases. See Ferguson v. City of Charleston, 532
U.S. 67, 84 (2001). The Court’s language in Ferguson renders
the government’s suggestion that “special law enforcement
interests” can be distinguished from ordinary law enforcement
purposes questionable at best.4 Id.; see also Friedman, 580
F.3d at 853 (noting that “[b]ecause the ‘special needs’ excep-
tion applies only to non-law enforcement purposes, and the
State’s interest here is the use of data for purely law enforce-
ment purposes, the ‘special needs’ exception is inapplicable”);
and United States v. Scott, 450 F.3d 863, 870 (9th Cir. 2006)
(commenting that “[c]rime prevention is a quintessential gen-
eral law enforcement purpose and therefore is the exact oppo-
site of a special need”).
We need not, however, determine whether the DNA collec-
tion provision could meet the special needs test because our
precedent directs us to apply the totality of the circumstances
4
The Court noted:
Because law enforcement involvement always serves some
broader social purpose or objective, under respondents’ view, vir-
tually any nonconsensual suspicionless search could be immu-
nized under the special needs doctrine by defining the search
solely in terms of its ultimate, rather than immediate, purpose.
Such an approach is inconsistent with the Fourth Amendment.
532 U.S. at 84 (footnotes omitted).
UNITED STATES v. POOL 14025
test. In United States v. Kriesel, 508 F.3d 941, 947 (9th Cir.
2007), we held:
Taking our cue from Samson [v. California, 547 U.S.
843, 126 S. Ct. 2193 (2006)], we reaffirm that “the
touchstone of the Fourth Amendment is reasonable-
ness,” id. at 2201 n.4, and adopt the “general Fourth
Amendment approach,” which “examin[es] the total-
ity of the circumstances to determine whether a
search is reasonable.” Id. at 2197 (quoting United
States v. Knights, 534 U.S. 112, 118, . . . (2001))
(internal quotation marks omitted). “Whether a
search is reasonable ‘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.’ ” Id. (quoting Knights, 534
U.S. at 118-19).
See also Kincade, 379 F.3d at 832 (“We today reaffirm the
continuing vitality of Rise [v. Oregon, 59 F.3d 1556 (9th Cir.
1995)] — and hold that its reliance on a totality of the circum-
stances analysis to uphold compulsory DNA profiling of con-
victed offenders both comports with the Supreme Court’s
recent precedents and resolves this appeal in concert with the
requirements of the Fourth Amendment.”). Accordingly, we
review the mandatory DNA collection provision under the
totality of the circumstances test.
B. The Totality of the Circumstances Test
[3] The totality of the circumstances test requires the court
to balance the intrusion upon the individual’s privacy with the
government’s legitimate interests. In Samson, the Supreme
Court stated: “[w]hether a search is reasonable ‘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 governmen-
14026 UNITED STATES v. POOL
tal interests.’ ” 547 U.S. at 848 (quoting Knights, 534 U.S. at
118-19). See also Kriesel, 508 F.3d at 952 (holding that in
Samson, the Supreme Court held that the totality of the cir-
cumstances test was the proper mode for analyzing a state
statute requiring DNA testing as a condition of supervised
release).
[4] However, our opinions suggest that there may be a pre-
requisite to the application of this test: there must be some
legitimate reason for the individual having less than the full
rights of a citizen. See Kincade, 379 F.3d at 833 (noting “the
well-established principle that parolees and other conditional
releasees are not entitled to the full panoply of rights and pro-
tections possessed by the general public”); see also Scott, 450
F.3d at 873 ( “Scott had a reduced expectation of privacy
because he had signed a form that, on its face, explicitly
waived the warrant requirement and implicitly (through the
use of the word ‘random’) waived the probable cause require-
ment for drug testing.”). But see Rise, 59 F.3d at 1559 (“Even
in the law enforcement context, the State may interfere with
an individual’s Fourth Amendment interests with less than
probable cause and without a warrant if the intrusion is only
minimal and is justified by law enforcement purposes.”).
[5] Here, the magistrate found that the “judicial or grand
jury finding of probable cause” was the “watershed event”
that distinguished Pool from the general public and allowed
for the application of the totality of the circumstances test. He
noted that at this point, “defendant may be deprived of his
very liberty; he can be subject to electronic monitoring; he
may be ordered to obey a mandatory curfew.” Certainly, the
magistrate is correct that at this point the government may,
through the judiciary, impose conditions on an individual that
it could not otherwise impose on a citizen. Thus, the determi-
nation that there is probable cause to believe Pool committed
UNITED STATES v. POOL 14027
a federal felony, allows the application of the totality of the
circumstances test.5
Pool argues, citing Scott, that the presumption of innocence
to which he is entitled precludes the application of the totality
of the circumstances test. This approach, however, was
rejected by the Supreme Court in Bell v. Wolfish, 441 U.S.
520, 533 (1979), when it stated that the presumption of inno-
cence “has no application to the determination of the rights of
a pretrial detainee during confinement before his trial has ever
begun.” Indeed, in United States v. Salerno, 481 U.S. 739,
749 (1987), the Supreme Court indicated that with a person’s
arrest the government may have grounds to limit the
arrestee’s rights. The Court noted:
Even competent adults may face substantial liberty
restrictions as a result of the operation of our crimi-
nal justice system. If the police suspect an individual
of a crime, they may arrest and hold him until a neu-
tral magistrate determines whether probable cause
exists. Gerstein v. Pugh, 420 U.S. 103, . . . (1975).
Finally, respondents concede and the Court of
Appeals noted that an arrestee may be incarcerated
until trial if he presents a risk of flight, see Bell v.
Wolfish, 441 U.S. at 534, . . . or a danger to wit-
nesses.
481 U.S. at 749. When Pool was brought before the magis-
trate in this case, whatever the prerequisite for the application
of the totality of the circumstances test, that requirement was
met. Accordingly, we turn to balancing the intrusion upon
Pool’s privacy against the government’s legitimate interests.
5
As this is what the district court held, we need not, and do not, consider
what other circumstances might allow for the use of the totality of the cir-
cumstances test.
14028 UNITED STATES v. POOL
1. The Degree of Intrusion on Pool’s Privacy
[6] Precedent establishes that the physical intrusion
required to take a DNA sample is minimal. Skinner v. Railway
Labor Executives’ Ass’n., 489 U.S. 602, 625 (1989) (“We said
also that the intrusion occasioned by a blood test is not signif-
icant, since such ‘tests are a commonplace in these days of
periodic physical examinations and experience with them
teaches that the quantity of blood extracted is minimal, and
that for most people the procedure involves virtually no risk,
trauma, or pain.’ ”) (internal citation omitted); Kriesel, 508
F.3d at 948 (“The additional privacy implications of a blood
test collecting DNA, as opposed to a cheek swab or other
mechanism, do not significantly alter our analysis.”).
Pool’s greater concern, however, is not with the physical
intrusiveness of the DNA testing, but with the intrusive nature
of the information gathered by the government. The govern-
ment, however, asserts that it only seeks to determine Pool’s
identification. Indeed, it is doubtful that Pool, or any other
individual having been indicted by a grand jury or having
been subjected to a judicial determination of probable cause,
has any right to withhold his or her true identification from
the government. See Kincade, 379 F.3d at 837 (“the DNA
profile derived from the defendant’s blood sample establishes
only a record of the defendant’s identity — otherwise per-
sonal information in which the qualified offender can claim
no right of privacy once lawfully convicted of a qualifying
offense (indeed, once lawfully arrested and booked into state
custody).”); Jones v. Murray, 962 F.2d 302, 306 (4th Cir.
1992) (“when a suspect is arrested upon probable cause, his
identification becomes a matter of legitimate state interest and
he can hardly claim privacy in it”).
The government argues that by design and law, the collec-
tion of DNA is limited to individual identification. The 13
markers on the DNA which the government uses to identify
the donor “were purposely selected because they are not asso-
UNITED STATES v. POOL 14029
ciated with any known physical or medical characteristics.”
Kincade, 379 F.3d at 818 (internal quotation and citation
omitted). See also Kriesel, 508 F.3d at 947. In implementing
the Act, the Department of Justice stated that DNA profiles
are to be used for identification purposes.6 73 FR at 74937-38.
The statute imposes criminal and financial penalties for
improper use of DNA samples, 42 U.S.C. § 14135e(c), and
limits access to DNA materials, 42 U.S.C. § 14133(b)(1)(A)-
(C). There are also provisions for the expungement of the
DNA information if the defendant is acquitted or the felony
charges are dismissed. 42 U.S.C. § 14132(d)(1)(A).
Pool and the amicus raise two objections. First, they argue
that the DNA information collected could reveal much more
than the person’s identification. CODIS may focus on the
junk DNA, but the DNA sample contains all of an individu-
al’s DNA. Pool is not comforted by the government’s assur-
ance that it will not look at other aspects of a person’s DNA.
Second, Pool posits that the government through the use of
familial comparisons may suspect innocent people simply
because their DNA has some strands that are similar to the
defendant’s DNA. Pool and the amicus assert that these argu-
ments help distinguish DNA from fingerprints because finger-
prints only identify an individual; they contain no information
as to an individual’s heritage or predilections.
Addressing Pool’s concerns in inverse order, it is not clear
6
The Department of Justice’s regulation states:
the DNA profiles retained in the system are sanitized “genetic
fingerprints” that can be used to identify an individual uniquely,
but do not disclose an individual’s traits, disorders, or disposi-
tions. The rules governing the operation of CODIS reflect its
function as a tool for law enforcement identification, and do not
allow DNA information within the scope of the system to be used
to derive information concerning sensitive genetic matters. See
42 U.S.C. §§ 14132(b), 14133(b)-(c), 14135e.
73 FR at 74937-38.
14030 UNITED STATES v. POOL
that familial comparisons raise a constitutional privacy issue
or, if they do, whose interests are violated. The concern with
familial comparisons or partial matching is that a review of
CODIS may disclose an individual whose DNA does not
match precisely to crime scene DNA from a perpetrator, but
is close enough to create a probability that the perpetrator is
a close relative to the identified individual. The familial match
is not implicated: by definition the match is not perfect, so the
government knows that the match is not the perpetrator. It is
questionable whether the rights of the perpetrator (if ulti-
mately identified through the use of familial comparisons) are
violated. This seems somewhat analogous to a witness look-
ing at a photograph of one person and stating that the perpe-
trator has a similar appearance which leads the police to show
the witness photos of similar looking individuals, one of
whom the witness identifies as the perpetrator. It is question-
able whether the person whose photograph helped focus the
inquiry, or whose familial comparison helped focus the
inquiry, has suffered any invasion of his or her constitutional
right to privacy.
Pool’s concerns about the government’s potential use of
DNA are understandable, but several factors mitigate those
concerns. First, in Kriesel and Kincade, we recognized that
the DNA collection system was designed not to reveal genetic
traits such as physical and medical characteristics. Kriesel,
508 F.3d at 947; Kincade, 379 F.3d at 818-19. Although there
is some scientific evidence to suggest that the “junk DNA”
that is the focus of CODIS may contain information that is not
“junk,” this, at most, indicates that the government might be
able to ascertain genetic traits from the 13 loci, not that it
actually could do so.7 Second, even if appellant and amicus
have shown that it is physically possible for the government
to extract genetic traits from the 13 loci, there is no evidence
7
There is no indication that Pool sought discovery or sought to intro-
duce expert testimony as to the government’s ability to extract genetic
traits from the DNA sample.
UNITED STATES v. POOL 14031
that the government could legally do so without further legis-
lation, or that the government has any intention of doing so.
As noted, 42 U.S.C. § 14133(b) limits the present use of DNA
information and the government asserts that Congress has
prohibited the alteration of the core loci without prior notice
and explanation to Congress. See P.L. 108-405 § 203(f).
[7] Third, the plurality opinion in Kincade considered and
rejected similar concerns as to the government’s potential use
of DNA information. The opinion noted:
But beyond the fact that the DNA Act itself provides
protections against such misuse, 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
not on dramatic Hollywood fantasies, . . . but on con-
cretely particularized facts developed in the cauldron
of the adversary process and reduced to an assess-
able record. If, . . . and when, some future program
permits the parade of horribles the DNA Act’s oppo-
nents fear — unregulated disclosure of CODIS pro-
files to private parties, genetic discrimination, state-
sponsored eugenics, . . .
— we have every confidence that courts will respond
appropriately.
As currently structured and implemented, how-
ever, the DNA Act’s compulsory profiling of qual-
ified federal offenders can only be described as
minimally invasive — both in terms of the bodily
intrusion it occasions, and the information it law-
fully produces.
379 F.3d at 837-38 (footnotes omitted) (emphasis added).
Although Kincade dealt with the taking of DNA from con-
victed offenders, the plurality’s determination that the infor-
mation produced by CODIS is minimally invasive is
14032 UNITED STATES v. POOL
applicable to this case. Furthermore, Pool has not offered any
evidence that might undermine our determination in Kincade.
[8] In sum, prior judicial decisions hold that the physical
invasion of a buccal swab or even a blood prick is minimal
and that Pool has little or no right to hide his identity from the
government. The nature of the privacy invasion, however, is
more difficult to evaluate because although CODIS is
designed only to facilitate identity, Pool raises non-frivolous
concerns that the government could use the DNA materials to
determine genetic traits. Nonetheless, the plurality opinion in
Kincade holds that the Act is “minimally invasive both in
terms of the bodily intrusion it occasions, and the information
it lawfully produces.” 397 F.3d at 838. We conclude that Pool
has not shown any greater intrusion on his privacy than did
Kincade.8
2. The Government’s Interests
[9] The government’s interests in DNA samples for law
enforcement purposes are well established. It is the most
accurate means of identification available.9 Furthermore,
8
Although Judge Gould in his concurring opinion in Kincade expressed
concern with the possible misuse of DNA information, 379 F.3d at 841-
42, he appears to have agreed with the plurality that the issue was not ripe
for judicial review. He posed the question of whether the DNA of a person
who had “wholly cleared their debt to society” should be erased, and
responds that in a proper case “where this issue is presented, we would
presumably need to weigh society’s benefit from retention of the DNA
records of a felon against that person’s right in a classical sense to priva-
cy.” Id.
9
See District Attorney’s Office for Third Judicial District v. Osborne,
129 S. Ct. 2308, 2327 (2009) (“DNA tests can, in certain circumstances,
establish to a virtual certainty whether a given individual did or did not
commit a particular crime.”) (internal quotations and citations omitted);
see also Kaemmerling v. Lappin, 553 F.3d 669, 681 (D.C. Cir. 2008)
(“DNA testing is the most reliable forensic technique for identifying crim-
inals when biological material is left at the crime scene.”) (internal quota-
tion and citations omitted); and United States v. Sczubelek, 402 F.3d 175,
184 (3d Cir. 2005) (noting that compared to fingerprints, “DNA is a fur-
ther — and in fact a more reliable — means of identification”).
UNITED STATES v. POOL 14033
unlike fingerprint evidence that requires that the perpetrator
leave a discernable fingerprint at the scene of a crime, it is
much more difficult for a perpetrator not to leave some DNA
evidence at the scene of a crime. We have recognized the gov-
ernment’s interests as “undeniably compelling” and “monu-
mental.” Kriesel, 508 F.3d at 949.
[10] In Kriesel, we addressed collecting DNA samples
from felons on supervised release. 508 F.3d at 947-50. Here,
we must evaluate the government’s interests in collecting a
DNA sample after a probable cause determination rather than
after a person’s conviction. Nonetheless, the government’s
interests remain substantial. There is usually a lengthy period
of time between an initial determination of probable cause
and a person’s trial (and even more time before a conviction
becomes final after an unsuccessful appeal). During this
period of time, the government has an interest in determining
whether the individual may be released pending trial without
endangering society and ensuring that he or she complies with
the conditions of his or her release. The collection of a DNA
sample allows the government to ensure that the defendant
did not commit some other crime and discourages a defendant
from violating any condition of his or her pretrial release.10 In
sum, many of the government’s interests in collecting a DNA
sample after a person’s conviction are present at this earlier
stage, with the possible exception of the particular needs that
arise when the government confines an individual, but these
needs are replaced by the equally legitimate concerns of
knowing the identity of the person being released to the public
and ascertaining and imposing conditions necessary to protect
the public.
10
In some instances, it is even possible that the collection of a DNA
sample from a defendant may produce exonerating evidence.
14034 UNITED STATES v. POOL
3. The Balance
[11] If not at the time that a person is arrested, certainly
once there has been a determination of probable cause to
believe that an individual has committed a federal felony, the
individual no longer has any “right” or legitimate expectation
of keeping his or her identity from the government. Kincade,
379 F.3d at 837. In light of the government’s legitimate inter-
ests in determining the true identity of the person, the balance
between those rights and the individual’s rights favors the
government, at least where, as here, the purpose and the effect
of requiring DNA are only to provide the government with the
person’s true identity.
[12] Here, Pool does not really challenge that identity is
the primary purpose of the Act. Rather, his concerns are that
despite the government’s disclaimer of other interests, the col-
lection of DNA, by its very nature, provides the government
access to intimate information concerning a person’s genetic
traits. We determine that in light of our precedent, these con-
cerns do not outweigh the government’s interests because
Pool has not shown that (1) the government could, at this
time, actually use the DNA information for arguably improper
purposes, (2) the government could do so without further leg-
islation, or (3) the government has any intent to so use the
information. Guided by our opinion in Kincade, we apply the
totality of the circumstances balancing test, and conclude that
the government’s legitimate interest in definitively identifying
Pool outweighs the intrusion into his privacy.11
11
Our use of the totality of the circumstances test is consistent with
opinions by the First, Third, Fourth, Fifth, Eighth, Eleventh and D.C. Cir-
cuits. See United States v. Weikert, 504 F.3d 1, 9 (1st Cir. 2007) (applying
“the general Fourth Amendment totality of the circumstances analysis to
[defendant’s] challenge to the DNA Act”)); United States v. Sczubelek,
402 F.3d 175, 184 (3d Cir. 2005) (stating that it believes “that it is appro-
priate to examine the reasonableness of the taking of the sample under the
more rigorous Knights totality of the circumstances test rather than the
UNITED STATES v. POOL 14035
4. Our perspective is consistent with the recent decisions
relied upon by Pool
The case by case balancing of the government’s asserted
legitimate interests and the intrusion into the individual’s pri-
vacy may be seen in our opinions in Friedman, 580 F.3d 847,
and Scott, 450 F.3d 863.
Friedman concerned the forcible extraction of a DNA sam-
ple by a state official from a person who was being held pend-
ing trial.12 We held that Nevada had failed to present
Griffin special needs exception); Jones, 962 F.2d at 306-07 (4th Cir. 1992)
(applying the totality of the circumstances framework); Grocman v.
United States Dep’t of Justice, 354 F.3d 411, 413-414 (5th Cir. 2004) (per
curiam) (noting that “Courts may consider the totality of circumstances,
including a person’s status as an inmate or probationer, in determining
whether his reasonable expectation of privacy is outweighed by other fac-
tors”); United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir. 2006) (fed-
eral DNA Act) (holding that “based on the totality of the circumstances,
the collection of DNA under the DNA Act for inclusion in the CODIS
database does not constitute an unreasonable search and seizure in viola-
tion of the Fourth Amendment”); Padgett v. Donald, 401 F.3d 1273, 1280
(11th Cir. 2005) (stating “[u]tilizing the Knights approach, we next
address whether the statute is reasonable under a totality of the circum-
stances analysis”); and Johnson v. Quander, 440 F.3d 489, 496 (D.C. Cir.
2006) (commenting that “[t]oday we join this unanimous body of author-
ity, and we conclude that the mandatory collection of Johnson’s DNA
sample was “reasonable” under the Fourth Amendment’s balancing test.”
(footnote omitted)). Notably, all of these cases upheld the collections of
DNA evidence before them under the specific statutes and circumstances
presented.
12
Our opinion in Friedman noted:
After Friedman repeatedly refused to voluntarily provide a DNA
sample, Boucher forced Friedman’s jaw open and forcefully took
a buccal swab from the inside of Friedman’s mouth. This search
was not related to the Nevada charges then-pending against
Friedman. Indeed, [the deputy district attorney] later represented
to a Nevada Justice Court that she had ordered the search to use
Friedman’s DNA in the investigation of cold cases. Friedman
was not a suspect in any of the cases.
580 F.3d at 851 (footnote omitted).
14036 UNITED STATES v. POOL
sufficient legitimate interests or needs to overcome the intru-
sion of personal privacy. The panel’s conclusion of its discus-
sion of the totality of the circumstances approach, or what it
refers to as the “reasonable” argument (580 F.3d at 856),
states:
The Nevada authorities extracted the DNA from
Friedman not because they suspected he had com-
mitted a crime, nor to aid in his reintegration into
society, nor as a matter of his continuing supervi-
sion. Their purpose was simply to gather human tis-
sue for a law enforcement databank, an objective
that does not cleanse an otherwise unconstitutional
search.
580 F.3d at 858.
Pool’s case, however, presents very different factors. First,
unlike the situation in Friedman, there has been a judicial
determination of probable cause to believe that Pool commit-
ted a federal felony. Second, the arguments that the opinion
in Friedman noted were not made by the state in that case are
made by the government in this case. Here, the government
has probable cause to believe that Pool committed the crime
and in determining conditions that would allow the release of
Pool to the public pending trial. Third, in Friedman, Nevada
proffered no statutory authority for collecting a DNA sample,
but here, the Attorney General seeks to enforce the Bail
Reform Act passed by Congress.13 In sum, this case presents
very different concerns both as to the individual’s legitimate
expectation of privacy and the government’s legitimate inter-
ests. By definition, the totality of the circumstances standard
requires that the court consider the individual facts presented
in each case. The determination that the circumstances in
13
Thus, unlike the search in Friedman, here the search was requested
according to “standardized criteria.” See Florida v. Wells, 495 U.S. 1, 4
(1990).
UNITED STATES v. POOL 14037
Friedman favored the individual does not control our determi-
nation that under the totality of the circumstances standard the
balance of the distinct facts in this case permits the mandatory
collection of DNA as a condition for pre-trial release.
The facts before us in Scott were also very different from
this case and raised distinct issues under the totality of the cir-
cumstances standard. The central issue in Scott was “whether
police may conduct a search based on less than probable
cause of an individual released while awaiting trial.” 450 F.3d
at 864. We were troubled by the assertion that the drug test
and the search of Scott’s house were valid because he had
consented to them as a condition of pre-trial release, and
determined that “Scott’s consent to any search is only valid if
the search in question (taking the fact of consent into account)
was reasonable.” 450 F.3d at 868. We concluded that Nevada
had failed to show that the searches were permissible under
the special needs approach, noting in passing that Scott’s pri-
vacy interest in his home was “at its zenith.” Id. at 871-72.
We also held that the search in Scott was not reasonable
under the totality of the circumstances approach. Id. at 872-
73. However, both the government’s legitimate interests, as
well as Scott’s privacy rights were different from the interests
and rights presently at bar. First, the government’s interest in
Scott was not in identifying Scott. Instead, it sought to condi-
tion his pre-trial release on his consent to random drug testing
and to having his home searched any time of the day or night.
450 F.3d at 865. While the government’s legitimate interest
in definitively identifying a defendant is well established,
Kriesel, 508 F.3d at 949, we have questioned the govern-
ment’s authority to otherwise intrude on a defendant’s privacy
rights.14 In Scott, we recognized that a person’s privacy inter-
14
In Scott, we explained:
The “unconstitutional conditions” doctrine, cf. Dolan v. City of
Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304
14038 UNITED STATES v. POOL
est in his home is at a zenith and is not usually reduced by a
person’s arrest or even a determination of probable cause. Id.
at 871-72. Moreover, we found the government’s alleged pur-
poses for imposing the waiver to be questionable. Id. at 870
(“We assume for purposes of our analysis that the non-law-
enforcement purpose — the interest in judicial efficiency —
is ‘primary’ in this case. But the connection between the
object of the test (drug use) and the harm to be avoided (non-
appearance in court) is tenuous.”). In addition, we noted that
the “government has no concern with integrating people like
Scott, who has never left the community, back into the com-
munity.” Id. at 874.
In Pool’s case, the government seeks only his definitive
identification which it relates to its ability to check on his
activities while on pre-trial release. Thus, while we are mind-
ful of our holding in Scott, we remain convinced that in this
case the government’s legitimate interests outweigh Pool’s
legitimate expectations of privacy.
[13] We recognize that there is language in Friedman and
Scott which may appear to be inconsistent with our decision
and our application of Kincade and Kriesel.15 We have plotted
(1994), limits the government’s ability to exact waivers of rights
as a condition of benefits, even when those benefits are fully dis-
cretionary. Government is a monopoly provider of countless ser-
vices, notably law enforcement, and we live in an age when
government influence and control are pervasive in many aspects
of our daily lives.
450 F.3d at 866 (footnote omitted).
15
For example, the opinion in Friedman notes “neither the Supreme
Court nor this court has ever ruled that law enforcement officers may con-
duct suspicion-less searches on pretrial detainees for reasons other than
prison security.” 580 F.3d at 856-57. However, while in Friedman the
state failed to show sufficient legitimate interests to outweigh Friedman’s
privacy interests, here, the application of the totality of the circumstances
test — as required by Kincade and Kriesel — leads to a different conclu-
UNITED STATES v. POOL 14039
a course based on the guidance provided by the Supreme
Court in Wolfish, 441 U.S. at 533, and Salerno, 481 U.S. at
749, that respects the concerns asserted in each of our cases.
This led us first to conclude that the probable cause determi-
nation by the district court allows for the application of the
totality of the circumstances standard. We then compared the
specific government interests and expectations of privacy in
this case to those asserted in the prior cases. We conclude that
where a court has determined that there is probable cause to
believe that the defendant committed a felony, the govern-
ment’s interest in definitively determining the defendant’s
identity outweighs the defendant’s privacy interest in giving
a DNA sample as a condition of pre-trial release where the
government’s use of the DNA is limited to 13 loci “purposely
selected because they are not associated with any known
physical or medical characteristics,” at least where, as here,
there is no evidence that the government may legally extract
any other information from the sample or that the government
has any intention of attempting to do so.
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 sep-
aration of powers by depriving the court of its role in deter-
sion. The claim that neither the Supreme Court nor this court has previ-
ously 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.
14040 UNITED STATES v. POOL
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.
[14] Pool asserts that he was denied procedural due pro-
cess 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 (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 deci-
sion to require registration as a sex offender on the basis of
a person’s prior conviction rather than on the basis of the per-
son’s dangerousness did not amount to a violation of due pro-
cess 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. 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 determina-
tion similarly does not deny Pool procedural due process.
[15] To the extent that Pool also claims a violation of sub-
stantive due process based on his fundamental “liberty interest
in remaining free of compelled DNA production,” his asser-
tions 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 legiti-
mate 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
UNITED STATES v. POOL 14041
invasive than a cheek swab — are commonplace and not sig-
nificant invasions. Kincade, 379 F.3d at 836 (citing Skinner,
489 U.S. at 625). 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.16
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 pro-
filing 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 Govern-
ment’s proposed conditions of release or detention not be
‘excessive’ in light of the perceived evil.” 481 U.S. at 754.
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, 80 U.S.
128, 146-47 (1871), that Congress violated the separation of
powers doctrine in enacting the Bail Reform Act because “it
16
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).
14042 UNITED STATES v. POOL
prescribes a rule for courts to follow without allowing courts
to exercise independent judicial power.” More recent prece-
dent renders Pool’s argument less than persuasive. In Chap-
man v. United States, 500 U.S. 453 (1991), the Supreme
Court noted that “Congress has the power to define criminal
punishments without giving the courts any sentencing discre-
tion,” and that “[a] sentencing scheme providing for individu-
alized sentences rests not on constitutional commands, but on
public policy enacted into statutes.” Id. at 467 (internal quota-
tions 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 per-
sons 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 fed-
eral power is not well taken.
Finally, Pool attempts to argue that § 14135a is unconstitu-
tional 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 stat-
ute 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. Rey-
nard, 473 F.3d 1008, 1021 (9th Cir. 2007), we rejected an
argument that a statute was “unconstitutional because the fed-
eral 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.”17 Although the stat-
17
We explained:
UNITED STATES v. POOL 14043
ute here at issue is broader than the statute before us in Rey-
nard, our reasoning in Reynard if not binding is persuasive.
IV
[16] 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 sam-
ple as a condition of pre-trial release in part because the gov-
ernment’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 42 U.S.C. § 3142(b) and (c)(1)(A) is
unconstitutional because it (1) violates his right to due pro-
cess, (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 condi-
tion to pre-trial release is AFFIRMED.
Reynard’s argument lacks merit. The federal government’s
authority to regulate the conditions of a federal offender’s super-
vised 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.
14044 UNITED STATES v. POOL
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 hold-
ing, identifying several issues we do not decide today. Sec-
ond, 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 phys-
ical 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 pro-
files. 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.
14019 (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
UNITED STATES v. POOL 14045
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 dif-
ferent 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 con-
sist 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”).1 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.
These DNA profiles differ significantly from DNA sam-
ples. 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 con-
1
“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 cer-
tain 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).
14046 UNITED STATES v. POOL
tained 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 identi-
fication purposes. In this respect, they are quite similar to the
information gained from fingerprinting and photograph-
ing—routine booking procedures.
Pool cites to several articles suggesting that so-called “junk
DNA”2 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 Indi-
cates ‘Junk DNA’ May be Vital, Wash. Post, Dec. 5, 2002, at
A1. 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 percent-
age of non-coding DNA “will prove to be regulatory
regions”).
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 pho-
tographs might yield clues as to familial relationships.
(Majority Op. 14029-30.) Such photographs necessarily con-
tain information regarding an individual’s race, gender, and
2
“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.
UNITED STATES v. POOL 14047
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 finger-
print patterns may correlate with gender, homosexuality, eth-
nicity, and health conditions such as congenital heart disease).3
Pool’s efforts to categorically distinguish the information
contained in CODIS DNA profiles from that contained in fin-
gerprints 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 pretrial
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
3
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 Sus-
ceptibility to Type 1 Diabetes, 9 Human Molecular Genetics 2929, 2929-
31 (2000). Even assuming this study could be considered admissible evi-
dence 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 probabili-
ties associated with certain diseases. I remain unconvinced, however, that
the information contained in the CODIS database at the present time cate-
gorically differs from the information already contained in the booking
photo lineups on the bookshelf of virtually every police station in the
country.
14048 UNITED STATES v. POOL
Hand opined in presaging the Court’s Fourth Amendment bal-
ancing 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 fin-
gerprinting and photography.
Yet I stress that we do not purport to decide the hypotheti-
cal 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 fin-
gerprint 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.4 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 bal-
ancing.
B
Although a CODIS profile contains less information than a
DNA sample by several orders of magnitude, law enforce-
ment must, of course, collect a DNA sample to create a DNA
profile. These two actions—collection of a DNA sample and
4
I note with trepidation that the DNA Analysis Backlog Elimination Act
does not facially limit DNA analysis to STRs or even non-coding 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.
UNITED STATES v. POOL 14049
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 govern-
ment 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 prob-
able cause determination has been made; it does not address
such sampling from mere arrestees. (See Majority Op.
14026-27, 14043.) That distinction is highly significant.5 A
judicial probable cause determination limits the opportunities
for mischief inherent in a suspicionless search regime. As dis-
cussed further in Part II, infra, the Supreme Court has permit-
ted some suspicionless searches when they are subject to
“standardized criteria, or established routine.” Florida v.
Wells, 495 U.S. 1, 4 (1990) (citations omitted). However, the
5
There is no doubt that conviction is the key moment in reconfiguring
the relationship between an individual’s privacy interests and the govern-
mental interests that may impinge upon them. Nevertheless, we cannot
blind ourselves to the various other gradations in our criminal justice sys-
tem. 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 propo-
sition 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.
14050 UNITED STATES v. POOL
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.
By permitting programmatic searches in the absence of par-
ticularized 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 (1987); see also Wells, 495 U.S.
at 4. 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 sys-
tem. Pool focuses his argument on the potential that the gov-
ernment may harvest intimate and revealing information from
his DNA sample. We must not underestimate these legitimate
concerns. Although the CODIS database uses only DNA pro-
files, 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 gov-
ernment 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
UNITED STATES v. POOL 14051
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 sam-
ple 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
database. 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; neverthe-
less, the majority opinion does not hold that indefinite reten-
tion 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 stor-
age 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
14052 UNITED STATES v. POOL
F.3d 847 (9th Cir. 2009). In addition to the differences
between this case and Friedman stated in the majority opin-
ion, 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 con-
clusion. See, e.g., Samson v. California, 547 U.S. 843, 855 n.4
(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 (Rein-
hardt, J., dissenting) (arguing, prior to Samson, that the Court
had never approved “a programmatic search designed to pro-
duce and maintain evidence relating to ordinary criminal
wrongdoing, yet conducted without any level of individual-
ized 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. 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 ‘reason-
able’ 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 (2006), it described “checkpoints to combat drunk driving
or drug trafficking” as fitting within the programmatic cate-
gory. Id. at 405. It also cited Wells, which held that the per-
UNITED STATES v. POOL 14053
missibility of an inventory search following impoundment
turns on the degree to which such searches are standardized.
Brigham City, 547 U.S. at 405; see also Wells, 495 U.S. at 4
(“Our view that standardized criteria, or established routine,
must regulate the opening of containers found during inven-
tory 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 (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 (“Our decisions
have always adhered to the requirement that inventories be
conducted according to standardized criteria.” (citation omit-
ted)).
The dissent in Samson provides additional guidance. Criti-
cizing 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 pro-
tect against the state actor’s unfettered discretion.” Samson,
547 U.S. at 860 (Stevens, J., dissenting). These “program-
matic safeguards [must be] designed to ensure evenhanded-
ness 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 pro-
grammatic 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 intru-
14054 UNITED STATES v. POOL
sions are not the random or arbitrary acts of government
agents.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S.
602, 621-22 (1989). And standard practices do limit the abil-
ity of government to use DNA profiling as a means of target-
ing “political opponents and disfavored minorities,” Kincade,
379 F.3d at 848 (Reinhardt, J., dissenting), or harassing disfa-
vored individuals. When combined with the legitimate gov-
ernment 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 reason-
able.
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 administra-
tion of CODIS and the government’s retention of DNA sam-
ples.
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 concur-
ring opinions now uphold the constitutionality of the proposed
search and seizure because they find that Pool has failed to
UNITED STATES v. POOL 14055
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 Fin-
gerprint 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 provi-
sions 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 autho-
rized 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 bal-
ances the intrusion into privacy of the individual against the
interest in protecting society as a whole. The Supreme Court
has upheld 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. Cal-
ifornia, 547 U.S. 843 (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 (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
14056 UNITED STATES v. POOL
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 constitu-
tionality 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 incarcer-
ated 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 uphold-
ing the constitutionality of the search on the basis of two dif-
ferent 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 spe-
cial needs theory). The fact of conviction, however, was indis-
pensable 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). More-
over, 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 program-
matic search designed to produce and maintain evidence relat-
ing to ordinary criminal wrongdoing . . . without any level of
individualized suspicion.” Id. at 843 (Reinhardt, J., dissent-
ing). 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 justi-
fied [here], then it’s hard to see how we can keep the database
from expanding to include everybody.”).
We revisited the issue when Congress expanded the same
statute to reach individuals convicted of any federal felony,
UNITED STATES v. POOL 14057
crime of violence, or sexual abuse crime. See United States v.
Kriesel, 508 F.3d 941 (9th Cir. 2007) (considering constitu-
tionality 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 opin-
ion) with id. at 950-58 (B. Fletcher, J., dissenting). The major-
ity 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 opin-
ion). 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 Kin-
cade and Kriesel to find Congress’s expansion of DNA test-
ing 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 gov-
14058 UNITED STATES v. POOL
ernment has a far more substantial interest in invad-
ing 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 conse-
quence 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 con-
victed 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 unconstitu-
tional 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 war-
rantless 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 pro-
vides 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 extract-
ing 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.
UNITED STATES v. POOL 14059
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 “wa-
tershed event” that results in a diminished expectation of pri-
vacy. 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 pri-
vacy 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 (1966) (recognizing the heightened privacy
interest “with respect to intrusions beyond the body’s sur-
face”).
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 (1979). They similarly point to authority involving
the detention of defendants who present a demonstrated dan-
ger to the community. See United States v. Salerno, 481 U.S.
739 (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 dan-
ger 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 demon-
strate that an exception under the “totality of the circum-
stances” approach applies because Pool, as a pretrial
14060 UNITED STATES v. POOL
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 characteris-
tics, and perhaps even propensity for certain conduct.” Kin-
cade, 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 pur-
poses, 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 stor-
age, of DNA material, and the personal information it con-
tains, is certainly substantial. The concurring opinion makes
much of the difference between DNA samples and DNA pro-
files, 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 gov-
ernment must justify under a Fourth Amendment exception,
UNITED STATES v. POOL 14061
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 . . . intru-
sions [beyond the body’s surface] on the mere chance that
desired evidence might be obtained.” 384 U.S. at 769-70.
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 databank, an objective that does not cleanse an
otherwise unconstitutional search.” Id. Nor may the govern-
ment rely on a generalized interest in preventing the commis-
sion of crimes by pretrial defendants. Scott rejected “the
assumption that [a pretrial defendant is] more likely to com-
14062 UNITED STATES v. POOL
mit crimes than other members of the public, without an indi-
vidualized 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.