Johnson, Lamar v. Quander, Paul A.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 2006 Decided March 17, 2006

No. 05-5156

LAMAR JOHNSON,
APPELLANT

v.

PAUL A. QUANDER, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 04cv00448)

Timothy P. O'Toole, Attorney, Public Defender Service of
the District of Columbia, argued the cause for appellant. With
him on the briefs was Todd A. Cox, Attorney.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellees. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.

Before: SENTELLE, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.
 2

SENTELLE, Circuit Judge: Lamar Johnson, a former District
of Columbia probationer, appeals from a District Court
judgment dismissing his action seeking to enjoin the application
of the DNA Analysis Backlog Elimination Act of 2000 (“DNA
Act” or “the Act”), 42 U.S.C. §§ 14135-14135e. Johnson
argued that the Act violated his constitutional rights under the
Fourth Amendment and violated other of his constitutional and
statutory rights. Because we conclude that the District Court
correctly held that the Act is neither facially unconstitutional nor
unconstitutional as applied to Johnson, we affirm.

I

On March 27, 2001, Johnson stole two cars while suffering
from “previously untreated emotional and mental health
problems.” Shortly after his arrest, Johnson was taken to a
hospital because he was found sitting in a puddle eating dirt. On
December 20, 2001, he was convicted in the Superior Court of
the District of Columbia on two counts of unarmed robbery in
violation of D.C. Code § 22-2801, for which he received a
suspended sentence and two years probation.

While Johnson was on probation, the Appellees—agents
from the District of Columbia Court Services and Offender
Supervision Agency (“CSOSA”)—demanded that Johnson
provide a DNA sample for inclusion in the Combined DNA
Index System (“CODIS”). The CSOSA agents did not have a
warrant and did not have individualized suspicion that Johnson
had committed a crime (other than the two counts of unarmed
robbery for which he had been convicted and placed on
probation). However, the agents claimed that Johnson was
obligated under the Act to submit his DNA for inclusion in the
CODIS database.
 3

The Act provides that CSOSA officials “shall collect a
DNA sample from each individual under the supervision of the
Agency who is on supervised release, parole, or probation who
is, or has been, convicted of a qualifying District of Columbia
offense . . . .” 42 U.S.C. § 14135b(a)(2). Congress left to the
District of Columbia the responsibility of determining which
offenses should be deemed “qualifying District of Columbia
offenses.” Id. § 14135b(d). In turn, the District designated
forty-nine separate crimes as “qualifying . . . offenses” under the
DNA Act, including robbery and carjacking. See D.C. Code §
22-4151(27), (29).

Despite the fact that Johnson was convicted on two counts
of a “qualifying offense,” he refused to provide a DNA sample
to the CSOSA. A Superior Court judge then ordered Johnson to
show cause why his probation should not be revoked because of
this refusal to comply with the DNA Act. Prior to the probation-
revocation proceeding, Johnson filed a complaint in the United
States District Court for the District of Columbia, seeking a
temporary restraining order (“TRO”) to prevent the Appellees
from requiring him to provide a DNA sample. Before the
District Court could rule on the TRO, the parties proposed to
resolve the need for emergency injunctive relief. The parties
filed a joint motion, under which Johnson agreed to provide a
blood sample. The Appellees agreed to delay processing that
sample until after his claims in this action and any subsequent
appeals had been resolved. The District Court granted the
parties’ joint motion and denied Johnson’s motion for a TRO.

Thereafter the Appellees filed a motion to dismiss under
FED. R. CIV. P. 12(b)(1) and FED. R. CIV. P. 12(b)(6). The
District Court concluded—after “[b]alancing the private and
public interests” under the totality of the circumstances—that
because probationers have diminished expectations of privacy,
Johnson did not state a viable Fourth Amendment claim. The
 4

court also rejected Johnson’s claims under the Ex Post Facto
Clause, the Fifth Amendment, the Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”), Pub. L. No.
104-191, 110 Stat. 1936, and the International Convention on
the Elimination of all Forms of Racial Discrimination
(“CERD”). Accordingly, the court granted the Appellees’
motion in full and dismissed the case. This appeal ensued.

II

Johnson raises two claims under the Fourth Amendment.
First, Johnson argues it was unconstitutional for the CSOSA to
collect his blood while he was still on probation. Second,
Johnson argues it is unconstitutional for the government to
retain his DNA profile and “re-search” it in the CODIS database
after his probationary term expires (which it now has). We
reject both claims.

A

Johnson’s first claim is that collection and storage of his
DNA is unconstitutional under the Fourth Amendment, which
guarantees that the people shall be “secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures . . . .” In Johnson’s view, the collection and storage of
a probationer’s DNA “[s]trik[es] at the heart of the Fourth
Amendment’s most inviolate zone,” and as a result, “these
searches must always be predicated on some measure of
individualized suspicion.” Because the Act requires every
prisoner, probationer, and parolee convicted of a “qualifying
offense” to submit his DNA sample without any showing of
individualized suspicion, Johnson argues the Act is
unconstitutional. For the reasons set forth below, we disagree.
 5

There is no question that the compulsory extraction of blood
for DNA profiling constitutes a “search” within the meaning of
the Fourth Amendment. See Skinner v. Ry. Labor Executives’
Ass’n, 489 U.S. 602, 616 (1989) (“We have long recognized that
a compelled intrusion into the body for blood to be analyzed for
alcohol content must be deemed a Fourth Amendment search.”
(internal quotation marks, alteration, and citation omitted)); see
also Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber v.
California, 384 U.S. 757, 767-68 (1966). The question before
us, therefore, is whether the search was “reasonable.” See
Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (“The
touchstone of our analysis under the Fourth Amendment is
always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal
security.’” (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968))).

Although ordinarily the reasonableness vel non of a search
depends on governmental compliance with the Fourth’s
Amendment’s Warrant Clause, see, e.g., United States v. U.S.
Dist. Court, 407 U.S. 297, 315-16 (1972), the Supreme Court
has applied the “special needs” exception to the warrant
requirement to uphold the warrantless search of a probationer’s
residence, see Griffin v. Wisconsin, 483 U.S. 868, 879-80
(1987). In Griffin, a police detective contacted Griffin’s
probation officer’s supervisor with information that Griffin
might have weapons in his apartment. The supervisor, another
probation officer, and three plainclothes policemen went to
Griffin’s apartment, searched it, and found a weapon. Id. at 871.
Griffin was arrested and charged with possession of a firearm by
a felon. He eventually moved to suppress the evidence
uncovered during the warrantless search of his residence. Id. at
872.

After he was convicted, Griffin appealed. Affirming his
conviction, the Supreme Court explained:
 6

A State’s operation of a probation system, like its
operation of a school, government office or prison, or its
supervision of a regulated industry, likewise presents
‘special needs’ beyond normal law enforcement that may
justify departures from the usual warrant and probable-
cause requirements. Probation, like incarceration, is a form
of criminal sanction imposed by a court upon an offender
after verdict, finding, or plea of guilty. . . . [I]t is always
true of probationers (as we have said it to be true of
parolees) that they do not enjoy the absolute liberty to
which every citizen is entitled, but only conditional liberty
properly dependent on observance of special probation
restrictions.
These restrictions are meant to assure that the probation
serves as a period of genuine rehabilitation and that the
community is not harmed by the probationer’s being at
large. These same goals require and justify the exercise of
supervision to assure that the restrictions are in fact
observed.
Id. at 873-75 (internal quotation marks, alterations, and citations
omitted). While Griffin may not establish that every
suspicionless search of a parolee is a constitutionally sound
“special need,” Griffin does permit the search of a probationer
based on no more than reasonable suspicion—even where the
search at issue is triggered by a desire to obtain law enforcement
information and motivated by ordinary law enforcement
purposes. Id. at 880. Thus, even though Griffin does not
establish the constitutionality of suspicionless searches of
probationers, it does stand for the proposition that probationers
are entitled to fewer Fourth Amendment protections than are
 7

ordinary citizens, and it does suggest that the special needs
exception can apply to law enforcement searches.1

Notwithstanding Griffin, Johnson argues that “all law
enforcement searches [must] be premised on some quantum of
individualized suspicion.” Appellant’s Br. at 20 (emphasis in
original). But the Supreme Court has “long held that ‘the Fourth
Amendment imposes no irreducible requirement of
[individualized] suspicion.’” Bd. of Educ. v. Earls, 536 U.S.
822, 829 (2002) (alteration in original) (quoting United States v.
Martinez-Fuerte, 428 U.S. 543, 561 (1976)). “[I]n certain
limited circumstances, the Government’s [interests are]
sufficiently compelling to justify the intrusion on privacy
entailed by conducting such searches without any measure of
individualized suspicion.” Nat’l Treasury Employees Union v.
Von Raab, 489 U.S. 656, 668 (1989); see also Skinner, 489 U.S.
at 624.

Since Griffin, the Supreme Court has on only one occasion
considered whether law enforcement officials need
individualized suspicion to search a probationer. In United
States v. Knights, 534 U.S. 112 (2001), the Court considered the
constitutionality of a probation order that required the defendant
to submit to warrantless, suspicionless searches of his person
and residence at any time. See id. at 114. Shortly after Knights
was placed on probation for an unrelated drug offense, someone
committed an arson targeting a Pacific Gas & Electric
(“PG&E”) electrical transformer. Id. at 114-15. Because prior

1
Subsequent to Griffin the Court has recognized some limits
to the “special needs” exception in the context of law enforcement
searches. See Ferguson v. City of Charleston, 532 U.S. 67, 79 (2001);
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). Because we
conclude the statute passes constitutional muster under the totality of
the circumstances, we need not explore the somewhat unclear
boundaries of the limits on the “special needs” doctrine.
 8

crimes against PG&E had coincided with Knights’ court
appearances, law enforcement authorities suspected that Knights
might be involved in the arson. The police staked out Knights’
apartment and observed a suspected accomplice leave with three
cylindrical items—potential pipe bombs—going toward a
nearby waterway. The police heard three splashes and watched
Knights’ compatriot walk back to the residence empty-handed.
Id. at 115. Shortly thereafter, the police approached the
accomplice’s vehicle and saw “a Molotov cocktail and explosive
materials, a gasoline can, and two brass padlocks that fit the
description of those removed from the PG&E transformer
vault.” Id.

Knowing that Knights’ probation was conditioned on his
obligation to submit to suspicionless searches of his person and
residence, the police promptly searched Knights’ home without
a warrant. They uncovered “a detonation cord, ammunition,
liquid chemicals, instruction manuals on chemistry and
electrical circuitry, bolt cutters, telephone pole-climbing spurs,
drug paraphernalia, and a brass padlock stamped ‘PG&E.’” Id.
After Knights was arrested and charged, he moved to suppress
the evidence. Id. at 116.

The Court analyzed the constitutionality of the search of
Knights’ apartment under a “totality-of-the-circumstances”
standard rather than the “special needs” doctrine. Id. at 117-18.
Balancing the invasion of Knights’ interest in privacy against
the State’s interest in searching his home without a warrant
supported by probable cause, the Court explained that “Knights’
status as a probationer subject to a search condition informs both
sides of that balance.” Id. at 119. On one side of the balance is
Knights’ interest in privacy:

Inherent in the very nature of probation is that probationers
do not enjoy the absolute liberty to which every citizen is
entitled. Just as other punishments for criminal convictions
 9

curtail an offender’s freedoms, a court granting probation
may impose reasonable conditions that deprive the offender
of some freedoms enjoyed by law-abiding citizens.

The judge who sentenced Knights to probation
determined that it was necessary to condition the probation
on Knights’ acceptance of the search provision. It was
reasonable to conclude that the search condition would
further the two primary goals of probation—rehabilitation
and protecting society from future criminal violations. The
probation order clearly expressed the search condition and
Knights was unambiguously informed of it. The probation
condition thus significantly diminished Knights’ reasonable
expectation of privacy.

Id. at 119-20 (internal quotation marks, citations, and footnotes
omitted).

On the other side of the balance is the government’s interest
in keeping tabs on a probationer:
[T]he very assumption of the institution of probation is that
the probationer is more likely than the ordinary citizen to
violate the law. The recidivism rate of probationers is
significantly higher than the general crime rate. And
probationers have even more of an incentive to conceal
their criminal activities and quickly dispose of
incriminating evidence than the ordinary criminal because
probationers are aware that they may be subject to
supervision and face revocation of probation, and possible
incarceration . . . .

***
The State has a dual concern with a probationer. On
the one hand is the hope that he will successfully . . . be
integrated back into the community. On the other is the
 10

concern, quite justified, that he will be more likely to
engage in criminal conduct than an ordinary member of the
community. . . . [The State’s] interest in apprehending
violators of the criminal law, thereby protecting potential
victims of criminal enterprise, may therefore justifiably
focus on probationers in a way that it does not on the
ordinary citizen.

Id. at 120-21 (internal quotation marks and citation omitted).
Given this balance, the Court held, the government needs “no
more than reasonable suspicion to conduct a search of [a]
probationer’s house.” Id. at 121. Because the government had
reasonable suspicion that the probationer had engaged in
unlawful activity, the Court did not decide whether the
government could have relied exclusively upon the warrantless
search condition in the defendant’s probation order to conduct
a suspicionless search. Id. at 120 n.6. Thus, “it remains entirely
an open question whether suspicionless searches of
[probationers and parolees] pass constitutional muster when
such searches are conducted for law enforcement purposes.”
United States v. Kincade, 379 F.3d 813, 830 (9th Cir. 2004) (en
banc) (emphasis in original), cert. denied, 125 S. Ct. 1638
(2005). However, every court of appeals that has considered the
issue has concluded that the DNA Act is constitutional. See id.
at 840; Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005); United
States v. Sczubelek, 402 F.3d 175 (3d Cir. 2005); Jones v.
Murray, 962 F.2d 302 (4th Cir. 1992); Groceman v. U.S. Dep’t
of Justice, 354 F.3d 411 (5th Cir. 2004) (per curiam); Green v.
Berge, 354 F.3d 675 (7th Cir. 2004); United States v. Kimler,
335 F.3d 1132 (10th Cir. 2003); Padgett v. Donald, 401 F.3d
1273 (11th Cir. 2005).
 11

Today we join this unanimous body of authority,2 and we
conclude that the mandatory collection of Johnson’s DNA
sample was “reasonable” under the Fourth Amendment’s
balancing test. On one side of the balance, it is well settled that
probationers have lesser privacy interests than do ordinary
citizens. See Griffin, 483 U.S. at 875; see also Ferguson v. City
of Charleston, 532 U.S. 67, 79-80 n.15 (2001) (emphasizing that
Griffin turned on “the fact that probationers have a lesser
expectation of privacy than the public at large”); Knights, 534
U.S. at 119 (“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.”); see also People v.
Reyes, 968 P.2d 445, 450 (Cal. 1998) (“As a convicted felon still
subject to the Department of Corrections, a parolee has
conditional freedom—granted for the specific purpose of
monitoring his transition from inmate to free citizen.”).

Moreover, the privacy invasion caused by a blood test is
relatively small (even when conducted on a free citizen). See
Skinner, 489 U.S. at 625; Schmerber, 384 U.S. at 771;
Breithaupt v. Abram, 352 U.S. 432, 435-36 (1957). In
Schmerber, the Court upheld the warrantless extraction of a
blood sample from a motorist suspected of driving while
intoxicated, despite his refusal to consent to the intrusion. The
Court noted that the intrusion occasioned by a blood test is
minimal because such “tests are a commonplace in these days of

2
We note that some of these courts have upheld the DNA Act
under the “special needs” exception to the warrant requirement, see,
e.g., Nicholas, 430 F.3d at 668; Green, 354 F.3d at 678-79, while
others have upheld the Act under the Fourth Amendment’s traditional
“totality-of-the-circumstances” standard, see, e.g., Padgett, 401 F.3d
at 1280; Groceman, 354 F.3d at 413-14. We do not preclude the
possibility that the Act could satisfy the “special needs” analysis.
 12

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.” Schmerber, 384 U.S. at 771 (footnote omitted).
“Schmerber thus confirmed society’s judgment that blood tests
do not constitute an unduly extensive imposition on an
individual’s privacy and bodily integrity.” Skinner, 489 U.S. at
625 (internal quotation marks and citation omitted).

In Jones v. Murray, the Fourth Circuit considered the
applicability of the Skinner line of precedent to the collection of
blood for DNA identification bank purposes. That circuit held
that “[w]hile we do not accept even this small level of intrusion
for free persons without Fourth Amendment constraint . . . the
same protections do not hold true for those lawfully confined to
the custody of the state.” 962 F.2d at 306. The Fourth Circuit
went on to note the indisputable principle that “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.” Id.

The Fourth Circuit further reasoned that courts must “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.” Id. Therefore, it cannot be denied that the
universal practice of “‘booking’ procedures that are followed for
every suspect arrested for a felony,” including fingerprinting,
ensues without respect to the relevance of fingerprint
identification to the suspect’s particular crime. Id. As with
fingerprinting, we agree with the Fourth Circuit that “the Fourth
Amendment does not require an additional finding of
individualized suspicion before blood can be taken from
incarcerated felons for the purpose of identifying them.” Id. at
306-07. While we need not decide whether the Fourth
 13

Amendment permits the suspicionless collection of blood
samples from every suspect arrested for a felony, cf. id. at 306,
it certainly permits the collection of a blood sample from a
convicted felon, like Johnson, while he is still on probation.

Arguably, Johnson’s privacy interests differ somewhat from
those at stake in Skinner, Schmerber, and Jones: A probationer
may have stronger privacy interests than a prisoner, and an
individual may have a stronger privacy interest in his permanent
identity than he has in the temporary toxicity of his blood.
However, we have never held that an innocent individual has a
Fourth Amendment right to expunge the government’s records
of his identity. See Stevenson v. United States, 380 F.2d 590
(D.C. Cir.), cert. denied, 389 U.S. 962 (1967). In Stevenson, we
held that an individual has no constitutional right to the
expungement of his mugshots and fingerprints, notwithstanding
the fact that his conviction was subsequently set aside. Id. at
593-94. A fortiori, a felon like Johnson—whose privacy
interests have been diminished by his probationary status—has
no viable objection to the government’s retention of his
identifying information.

On the other side of the balance, the government is “quite
justified” in taking steps to keep tabs on ex-convicts, to deter
recidivism, and to solve past and future crimes. Knights, 534
U.S. at 121; see also Reyes, 968 P.2d at 450 (“The state has a
duty not only to assess the efficacy of its rehabilitative efforts
but to protect the public, and the importance of the latter interest
justifies the imposition of a warrantless search condition.”
(emphasis added)). The need to ensure that the community “is
not harmed by the probationer’s being at large” permits the
government “a degree of impingement upon [a probationer’s]
privacy that would not be constitutional if applied to the public
at large.” Griffin, 483 U.S. at 875. Balancing Johnson’s
reduced privacy interests against the government’s interests in
 14

monitoring probationers, deterring recidivism, and protecting the
public, we hold it was reasonable for the Appellees to collect
Johnson’s DNA while on probation.

B

Johnson’s second argument is that the Fourth Amendment
prohibits the government from storing his “genetic fingerprint”
in the CODIS database and “re-searching” it after he has left the
probationary rolls (as he now has). In Johnson’s view, “[o]nce
probation ends, the individual’s privacy interest is restored to the
level of other citizens while the government’s penal interest
disappears.” Appellant’s Br. at 34. Given this reshuffling of the
parties’ interests, Johnson argues, the post-probation balance
makes it unreasonable to “re-search” ex-convicts’ DNA profiles.
For the reasons set forth below, we disagree.

1

After a donor’s DNA is collected under the Act, it is
analyzed “in accordance with publicly available standards that
satisfy or exceed the guidelines for [the FBI’s] quality assurance
program for DNA analysis.” 42 U.S.C. § 14132(b)(1). Using
“short tandem repeat” (“STR”) technology, the government
creates a “genetic fingerprint” for each donor by looking for the
presence of genic variants known as alleles at thirteen specific
loci on DNA present in the specimen. See Kincade, 379 F.3d at
818. A copy of the donor’s “genetic fingerprint” is then
uploaded to the CODIS database, 42 U.S.C. § 14132(a)(1),
which allows government officials to match a “genetic
fingerprint” with its donor’s identity only for “law enforcement
identification purposes,” “judicial proceedings,” and “criminal
defense purposes,” id. § 14132(b)(3). Unauthorized uses or
disclosures of DNA information stored in the database are
punishable by fines and imprisonment. Id. § 14133(c).
 15

We conclude that accessing the records stored in the CODIS
database is not a “search” for Fourth Amendment purposes. As
the Supreme Court has held, the process of matching one piece
of personal information against government records does not
implicate the Fourth Amendment. See Arizona v. Hicks, 480
U.S. 321 (1987). In Hicks, a police officer found an expensive
stereo while searching an apartment under exigent
circumstances. Suspecting that the stereo system was stolen, the
officer wrote down the serial numbers of some of its
components. The officer then conveyed the numbers to
headquarters and confirmed a match between the serial numbers
and stereo components stolen during an armed robbery. Id. at
323-24. The Supreme Court held that copying the serial
numbers constituted a “search” (insofar as the officer moved the
equipment to see the serial numbers), but matching the copied
serial numbers against those of the stolen stereo components did
not independently implicate the Fourth Amendment. Id. at 324-
25.

Johnson attempts to avoid the implications of Hicks by
arguing that the installation of a video camera inside someone’s
home constitutes one “search,” and a new “search” occurs every
time a government official monitors the camera. In Johnson’s
view, “[t]he harm from the government’s ability to indefinitely
search and re-search [an ex-probationer’s] genetic information
[is no different] than placing a video camera in a citizen’s
home.” Appellant’s Br. at 30. We reject the analogy.

Monitoring an in-home video camera raises Fourth
Amendment concerns where it is tantamount to repetitive,
surreptitious surveillance of a citizen’s private goings on. Cf.
United States v. Karo, 468 U.S. 705, 716 (1984)
(“Indiscriminate monitoring of property that has been withdrawn
from public view would present far too serious a threat to
privacy interests in the home to escape entirely some sort of
 16

Fourth Amendment oversight.”). And because a video feed is
constantly updated, it implicates the Fourth Amendment each
time a government official monitors it to spy on otherwise
private matters. Cf. id. at 713-14. By contrast, a felon’s DNA
fingerprint is more akin to a snapshot: It reveals identifying
information based on a blood test conducted at a single point in
time. Of course, even snapshots can raise Fourth Amendment
concerns. See Mincey v. Arizona, 437 U.S. 385, 389-92 (1978).
However, if a snapshot is taken in conformance with the Fourth
Amendment, the government’s storage and use of it does not
give rise to an independent Fourth Amendment claim. See
California v. Ciraolo, 476 U.S. 207, 213-15 (1986); Dow Chem.
Co. v. United States, 476 U.S. 227, 239 (1986).

Accordingly, we conclude that accessing the DNA
snapshots contained in the CODIS database does not
independently implicate the Fourth Amendment. We note that
the consequences of the contrary conclusion would be
staggering: Police departments across the country could face an
intolerable burden if every “search” of an ordinary fingerprint
database were subject to Fourth Amendment challenges. The
same applies to DNA fingerprints.

To be sure, genetic fingerprints differ somewhat from their
metacarpal brethren, and future technological advances in DNA
testing (coupled with possible expansions of the DNA Act’s
scope) may empower the government to conduct wide-ranging
“DNA dragnets” that raise justifiable citations to George Orwell.
See, e.g., Kincade, 379 F.3d at 849 (Gould, J., concurring); id.
at 873-74 (Kozinski, J., dissenting); Appellant’s Br. at 36-40.
Today, however, the DNA Act applies only to felons, and
CODIS operates much like an old-fashioned fingerprint database
(albeit more efficiently). As the Supreme Court has noted:
 17

if such dragnet-type law enforcement practices as [Johnson]
envisions should eventually occur, there will be time
enough then to determine whether different constitutional
principles may be applicable. Insofar as [Johnson’s]
complaint appears to be simply that scientific devices such
as [DNA testing and CODIS] enable[] the police to be more
effective in detecting crime, it simply has no constitutional
foundation. We have never equated police efficiency with
unconstitutionality, and we decline to do so now.

United States v. Knotts, 460 U.S. 276, 284 (1983) (citation
omitted). We therefore reject Johnson’s claim that the Fourth
Amendment applies to each “search” of the CODIS database.

2

Johnson also challenges the government’s retention of his
blood sample, which he claims might be retested with new
technologies in the future. Nothing in the record suggests such
future testing is imminent, nor can we analyze its invasiveness
until it appears. It is surely not uncommon that evidence of
every sort obtained by a lawful search and retained may be
useful or provide additional information in the future. If
something about some undefined future technology raises
constitutional issues, that is a problem for another day.

We are nonetheless advertent to the Supreme Court’s
teaching in Kyllo v. United States, 533 U.S. 27 (2001). There
the Court considered whether the use of thermal imaging
technology to examine the interior of a dwelling constitutes a
“search.” After noting that the Fourth Amendment does not
“leave the homeowner at the mercy of advancing
technology—including imaging technology that could discern
all human activity in the home,” id. at 35-36, the Court held that
“[w]here . . . the Government uses a device that is not in general
 18

public use, to explore details of the home that would previously
have been unknowable without physical intrusion, the
surveillance is a ‘search’ . . . .” Id. at 40.

This is not such a case. Not only is blood testing in
common use, Schmerber, 384 U.S. at 771, but a “search” is
completed upon the drawing of the blood: Any future test on a
stored blood sample will not “discern [any] human activity,” nor
will it constitute a “physical intrusion.” Neither Kyllo nor any
other decision that we have found suggests that evidence
becomes any less subject to search, seizure, or retention simply
because it might yield additional information in the future.

III

Johnson next argues that the federal DNA Act and the
District of Columbia’s implementation statute (D.C. Code §
22-4151, which defines a “qualifying District of Columbia
offense[]” under the federal DNA Act) violate the Ex Post Facto
Clauses of the United States Constitution, art. I, § 9, cl. 3; § 10,
cl. 1. In Johnson’s view, the legislative histories of both statutes
suggest they were enacted with “punitive intent,” and it is
unconstitutional to apply the statutes retroactively to Johnson’s
crime, which was committed on March 27, 2001. For the
reasons set forth below, we disagree.

A

At the outset, we note that the application of the federal
DNA Act to Johnson cannot possibly violate the Ex Post Facto
Clause. The federal statute was enacted on December 19,
2000—more than three months before Johnson committed
felonious robbery, and more than one year before Johnson was
convicted. Thus, the federal DNA Act does not operate
retroactively as to Johnson by its own terms. See INS v. St. Cyr,
 19

533 U.S. 289, 316-26 (2001). Accordingly, the ex post facto
issue arises (if at all) only with respect to the District’s
implementation statute, which was signed into law on June 15,
2001 (a little less than three months after Johnson committed his
crimes).

Appellees concede that the District’s implementation statute
makes the DNA Act operate retroactively. Thus, the District’s
implementation statute may be unconstitutional under the Ex
Post Facto Clause if it is “punitive.” As the Supreme Court has
held:
If the intention of the legislature was to impose punishment,
that ends the inquiry. If, however, the intention was to
enact a regulatory scheme that is civil and nonpunitive, we
must further examine whether the statutory scheme is so
punitive either in purpose or effect as to negate [the
District’s] intention to deem it “civil.”

Smith v. Doe, 538 U.S. 84, 92 (2003) (internal quotation marks
and citations omitted). In Smith, the Court held Alaska’s sex
offender registry law does not violate the Ex Post Facto Clause,
notwithstanding the fact that the statute’s registration provisions
were codified in the state’s criminal code, failure to register was
itself a crime, some of the law’s provisions related to criminal
administration, and the state’s criminal pleading rules required
informing a defendant of the statute’s requirements. See id. at
95-96. Emphasizing the statute’s anti-recidivism and public
safety provisions, the Court held the statute was non-punitive in
both purpose and effect. We reach the same conclusion here.

B

We first consider whether the “purpose” of D.C. Code §
22-4151 was “punitive.” As the Supreme Court has instructed:
“Whether [the purpose of] a statutory scheme is civil or criminal
 20

is first of all a question of statutory construction.” Smith, 538
U.S. at 92 (internal quotation marks and citation omitted).
Johnson urges us to look for the implementation statute’s
“punitive intent” by construing its legislative history “in the
light most favorable to Mr. Johnson.” Appellant’s Br. at 46.
We reject Johnson’s novel canon of interpretation. As with all
questions of statutory interpretation, “[w]e consider the statute’s
text and its structure to determine the legislative objective.”
Smith, 538 U.S. at 92; see also Exxon Mobil Corp. v. Allapattah
Servs., Inc., 125 S. Ct. 2611, 2626 (2005); Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 450 (2002).

Nothing in the text or structure of the District’s
implementation statute suggests its purpose was “punitive”—the
law simply defines the offenses subject to DNA collection under
the federal Act. See D.C. Code § 22-4151 (requiring forty-nine
categories of ex-convicts to donate DNA to CODIS, but adding
no substantive requirements—punitive or otherwise—to the
federal DNA Act’s requirements). Given the definitional nature
of the implementation statute, it can be understood only as a
policy judgment by the District’s elected officials regarding
which offenses are serious enough to warrant coverage by the
federal DNA Act. As the Supreme Court has held, such policy
judgments are “an incident of the State’s power to protect the
health and safety of its citizens,” and they should be construed
“as evidencing an intent to exercise that regulatory power, and
not a purpose to add to the punishment.” Flemming v. Nestor,
363 U.S. 603, 616 (1960). Relying on Flemming, the Court
rejected an Ex Post Facto challenge to an Alaska statute that
retroactively forced sex offenders to provide the state with
identifying information (including mugshots and fingerprints),
which the state stored in a massive database. Smith, 538 U.S. at
89-91. The Court emphasized that “even if the objective of the
[sex offender registration statute] is consistent with the purposes
of the Alaska criminal justice system, the State’s pursuit of it in
 21

a regulatory scheme does not make the objective punitive.” Id.
at 94; cf. United States v. One Assortment of 89 Firearms, 465
U.S. 354, 364 (1984) (upholding a statute requiring forfeiture of
unlicensed firearms against a double jeopardy challenge because
“[k]eeping potentially dangerous weapons out of the hands of
unlicensed dealers is a goal plainly more remedial than
punitive”).

Similarly here, the District’s implementation statute simply
carried out part of the state’s power to protect the health and
safety of its citizens by keeping track of (and deterring future
crimes by) ex-convicts. Despite the fact that the statute is
codified in the District’s criminal code, it did not create new
punishments or increase extant punishments. The statute did
create a new obligation for ex-convicts to donate their DNA to
the CODIS database; however, a minimally invasive blood test,
Skinner, 489 U.S. at 625, is no more of a “punishment” than
forcing convicted sex offenders to disclose their identities or
confiscating unlicensed firearms. Moreover, the Supreme Court
has held that the revocation of probation (which was the
threatened sanction that prompted Johnson’s motion for a TRO)
does not constitute a “punishment” for purposes of the Ex Post
Facto Clause. See Johnson v. United States, 529 U.S. 694, 700-
01 (2000). Therefore, the “purpose” of the statute was non-
punitive.

C

We next consider whether the “effect” of D.C. Code §
22-4151 is “punitive,” notwithstanding its non-punitive
“purpose.” As the Supreme Court has instructed, our inquiry
into the effects of the District’s implementation statute should
be guided by seven factors, which are “neither exhaustive nor
dispositive.” 89 Firearms, 465 U.S. at 365 n.7 (internal
 22

quotation marks and citation omitted). Specifically, we must
consider:

[w]hether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of
scienter, whether its operation will promote the traditional
aims of punishment—retribution and deterrence, whether
the behavior to which it applies is already a crime, whether
an alternative purpose to which it may rationally be
connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)
(footnotes omitted). In Johnson’s view, a mandatory DNA test
constitutes “an affirmative disability or restraint,” which is
“excessive in relation to [any] alternative purpose” that can be
assigned to it. Yet again, we disagree.

A blood test differs mightily from “an affirmative disability
or restraint.” Like a sex-offender registry, the DNA Act
“imposes no physical restraint, and so does not resemble the
punishment of imprisonment, which is the paradigmatic
affirmative disability or restraint.” Smith, 538 U.S. at 100; see
also id. at 99-101 (requiring sex offenders to disclose their
identities does not constitute an affirmative disability or
restraint); Flemming, 363 U.S. at 617 (eliminating deportees’
Social Security benefits does not constitute an affirmative
disability or restraint); Hudson v. United States, 522 U.S. 93,
104 (1997) (debarring an individual from an entire occupation
does not constitute an affirmative disability or restraint). The
collection and retention of a felon’s fingerprints (genetic or
otherwise) is far less of an impingement on his liberty than a
permanent employment ban or the mandatory disclosure of a sex
offender’s identity. Cf. Breithaupt, 352 U.S. at 435-38 (holding
 23

an involuntary blood test does not implicate an individual’s
liberty interests). Accordingly, the DNA Act does not impose
an “affirmative disability or restraint.”

Finally, Johnson argues that the statutes are “excessive in
relation to [any] alternative purpose” that might be assigned to
them. However, as the District Court correctly pointed out, the
statutory text suggests the DNA Act was enacted, in part, to
facilitate DNA-based exonerations. See 42 U.S.C. §
14132(b)(3)(C) (allowing the use and disclosure of CODIS
records for “criminal defense purposes”). The statutory means
for accomplishing this “alternative purpose” need not be
narrowly tailored: As the Supreme Court has instructed, “[a]
statute is not deemed punitive simply because it lacks a close or
perfect fit with the nonpunitive aims it seeks to advance.”
Smith, 538 U.S. at 103. Instead, Johnson must show that the
Act’s non-punitive, alternative purpose is a “sham or mere
pretext.” Id. (internal quotation marks and citation omitted).
Nothing in the record or the parties’ briefs suggests anything of
the sort. Accordingly, the DNA Act’s sanction is not
“excessive in relation to [its] alternative purpose.”

In sum, the DNA Act and the District’s implementation
statute are “punitive” in neither purpose nor effect.
Accordingly, we hold the dismissal of Johnson’s ex post facto
claim was proper.
IV

We have considered Johnson’s other arguments—which
include claims under the Due Process and “equal protection”
Clauses of the Fifth Amendment, as well as HIPAA and the
CERD—and conclude that they are without merit and do not
warrant separate discussion. For the reasons set forth above, the
judgment of the District Court is
Affirmed.