United States Court of Appeals
For the First Circuit
No. 06-1861
UNITED STATES OF AMERICA,
Appellant,
v.
LEO WEIKERT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Lipez, Circuit Judge, and
*
Gibson and Stahl, Senior Circuit Judges.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellant.
Terence P. Noonan, with whom Noonan & Noonan was on brief, for
appellee.
August 9, 2007
*
Of the Eighth Circuit, sitting by designation.
LIPEZ, Circuit Judge. This case presents a question of
first impression in this circuit: is it a violation of the Fourth
Amendment's prohibition on unreasonable searches and seizures to
require an individual on supervised release to provide a blood
sample for purposes of creating a DNA profile and entering it into
a centralized database? Agreeing with the eleven other circuits
that have held similarly, we hold that it is not. In doing so, we
interpret the Supreme Court's decision in Samson v. California, 126
S. Ct. 2193 (2006), to require that we join the majority of the
circuits in applying a "totality of the circumstances" approach to
the issues in this case, rather than the "special needs" analysis
used by the minority of circuits.
However, we also impose an important limitation on our
holding. Because the appellant is currently on supervised release
and will remain so until 2009, we do not resolve the question of
whether it is also constitutional to retain the DNA profile in the
database after he is no longer on supervised release. Mindful of
the well-established principle that constitutional cases should be
decided as narrowly as possible and the rapid pace of technological
development in the area of DNA analysis, we reserve judgment on
that issue for another day.
I.
A. Statutory Background
Pursuant to the DNA Analysis Backlog Elimination Act of
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2000 ("DNA Act"), Pub. L. No. 106-546 (codified as amended in
scattered sections of 10 U.S.C., 18 U.S.C., and 42 U.S.C.),
individuals who have been convicted of a "qualifying federal
offense" and who are incarcerated or on parole, probation, or
supervised release must provide federal law enforcement authorities
with "a tissue, fluid, or other bodily sample" for purposes of
extracting their DNA. 42 U.S.C. §§ 14135a(a)(1)-(2), (c)(1).1
The DNA Act specifies that the government may "use or
authorize the use of such means as are reasonably necessary" to
collect a DNA sample. Id. at § 14135a(a)(4)(A). Before the
district court a United States Probation Officer explained that in
Weikert's case a blood sample would be obtained by means of a
painless fingerprick. Refusal to comply with the DNA collection
procedure is a misdemeanor punishable by up to one year's
imprisonment and a fine of $100,000. 42 U.S.C. § 14135a(a)(5); 18
U.S.C. §§ 3571, 3581. Moreover, courts are required to order
compliance with the DNA Act "as an explicit condition of supervised
release." 18 U.S.C. § 3583(d). Thus, failure to provide a DNA
sample in compliance with the DNA Act both violates the obligation
not to commit any additional offenses while on supervised release
and violates an express condition of the release. See 18 U.S.C.
1
Under 42 U.S.C. § 14135a(d), the term "qualifying federal
offense" includes any felony, any offense under 18 U.S.C. § 109A,
any "crime of violence" as defined in 18 U.S.C. § 16, and any
attempt or conspiracy to commit such an offense.
-3-
§ 3583(d).
The FBI uses the DNA sample to create a genetic profile
of the individual based on information contained at thirteen
specified locations in the person's DNA. See Nat'l Comm'n on the
Future of DNA Evidence, Nat'l Inst. of Justice, U.S. Dep't of
Justice, The Future of Forensic DNA Testing 19 (2000), available at
http://www.ncjrs.gov/pdffiles1/nij/183697.pdf (hereinafter "The
Future of Forensic DNA Testing"). Profiling is performed using
only so-called "junk DNA" — DNA that differs from one individual to
the next and thus can be used for purposes of identification but
which was "purposely selected because [it is] not associated with
any known physical or medical characteristics" and "do[es] not
control or influence the expression of any trait." H.R. Rep. No.
106-900(I), at 27 (2000), 2000 WL 1420163 (letter of Robert Raben,
Assistant Attorney General, to The Honorable Henry J. Hyde,
Chairman, House Judiciary Committee).2 Thus, the profiles contain
only "an agency identifier for the agencies submitting the DNA
profile; the specimen identification number; the DNA profile; and
the name of the DNA personnel associated with the DNA analysis."
Id. In effect, the system "provide[s] a kind of genetic
fingerprint, which uniquely identifies an individual, but does not
2
A report prepared by the National Institute of Justice
explains that ninety-seven percent of DNA "has no known function"
and notes, parenthetically, that "[o]ne reason for [the choice to
perform DNA analysis on such junk DNA] has been to protect
individual privacy." The Future of Forensic DNA Testing 12.
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provide a basis for determining or inferring anything else about
the person." Id.
The profile is then entered into the FBI's Combined DNA
Index System ("CODIS"), a massive, centrally managed database
including DNA profiles from federal, state, and territorial DNA
collection programs, as well as profiles drawn from crime-scene
evidence, unidentified remains, and genetic samples voluntarily
provided by relatives of missing persons. As of April 2007, CODIS
contained more than four million profiles of individual offenders
and over 175,000 profiles derived from crime scene evidence and
other sources. See Federal Bureau of Investigation, National DNA
Index System Statistics, available at
http://www.fbi.gov/hq/lab/codis/clickmap.htm (last visited July 11,
2007).
CODIS is a valuable law enforcement tool. It may be used
to match evidence found at one crime scene with evidence found at
another crime scene, revealing a common perpetrator. It also may
be used to match evidence from the scene of a crime to a particular
offender's profile. These attributes allow the FBI to investigate
crimes more efficiently and more accurately, both by identifying
offenders and by eliminating innocent suspects. The FBI credits
CODIS with aiding more than 49,466 investigations nationally. See
Federal Bureau of Investigations, Investigations Aided,
http://www.fbi.gov/hq/lab/codis/aidedmap.htm (hereinafter
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"Investigations Aided") (last visited July 11, 2007).
The DNA Act contains an array of statutory safeguards to
foreclose the possibility of abuse. CODIS information generally
may be used only "[by] criminal justice agencies for law
enforcement identification purposes[,] . . . in judicial
proceedings, if otherwise admissible pursuant to applicable
statutes or rules[, and] for criminal defense purposes, [by] a
defendant." 42 U.S.C. § 14132(b)(3). The DNA Act also provides
for a fine of up to $250,000 or a year in prison for the
unauthorized disclosure or use of a DNA sample or result. Id.
§ 14135e(c).
B. Factual and Procedural Background
In 1990, appellant Leo Weikert pled guilty in the Western
District of Texas to one count of conspiracy to possess cocaine
with the intent to distribute and was sentenced to a term of 120
months. He escaped from prison in 1994, and was apprehended in
Massachusetts in 1999. He then pled guilty in the District of
Massachusetts to one count of escape from custody, and, in January
2000, was sentenced to eight months of imprisonment, to be served
consecutively with his previous term. He also was sentenced to
twenty-four months of supervised release to follow his
incarceration.3
3
Weikert will remain on supervised release until 2009 because
he was sentenced to five years of supervised release for his
previous conviction in Texas and is serving the two terms of
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Weikert was released from prison on December 10, 2004.
The Probation Office notified him of its intent to take a blood
sample in order to collect his DNA, and Weikert subsequently filed
a motion for a preliminary injunction and requested a hearing. The
government opposed the motion and filed a request to revoke
Weikert's supervised release.
The district court granted the preliminary injunction.
The court explained that, in analyzing the constitutionality of the
DNA Act, the other circuits have split over whether to apply the
general Fourth Amendment totality of the circumstances test or the
special needs exception. It then held that the special needs
exception was the appropriate test because "the special needs
doctrine has evolved to be the proper form of analysis for searches
without individualized suspicion." It explained that the special
needs test first asks whether the statute serves a special need
distinct from traditional law enforcement, and, if so, whether the
government's need outweighs the intrusion on the individual's
privacy interest. Applying that analysis, the court concluded that
no special need existed because "[t]he government's immediate
purpose in collecting DNA samples is to solve crimes," which was
not beyond the normal need for law enforcement.
Acknowledging that its conclusion that no special need
existed was sufficient to find the search unreasonable under the
supervised release concurrently.
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Fourth Amendment, the court nevertheless continued with its
analysis. Even if such a special need existed, the court held, the
individual's privacy interests would outweigh the government's
interest in obtaining the information. The court found the
government's interest in creating and using the database to solve
crimes "substantial, given the success the government has had in
using DNA samples to assist in investigations." However, this
substantial interest was outweighed by "the intrusion into an
individual's personal identity through the analysis of the blood
. . . not to mention the danger of a later publicizing of the
information gleaned from the sample."
Finally, the district court found that the other
preliminary injunction factors — the possibility of irreparable
injury, the balance of harms, and the public interest — weighed in
Weikert's favor. Thus, the court granted the injunction. The
government now appeals from that decision.
II.
Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to
hear an interlocutory appeal of an order granting a preliminary
injunction. In considering a motion for a preliminary injunction,
a district court weighs four factors: (1) the plaintiff’s
likelihood of success on the merits; (2) the potential for
irreparable harm in the absence of an injunction; (3) whether
issuing an injunction will burden the defendants less than denying
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an injunction would burden the plaintiffs; and (4) the effect, if
any, on the public interest. Bl(a)ck Tea Soc’y v. City of Boston,
378 F.3d 8, 11 (1st Cir. 2004). The first inquiry is the most
important element of the preliminary injunction assessment: "[I]f
the moving party cannot demonstrate that he is likely to succeed in
his quest, the remaining factors become matters of idle curiosity."
New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9
(1st Cir. 2002).
On appeal, we review the grant or denial of a preliminary
injunction for abuse of discretion. Wine & Spirits Retailers, Inc.
v. Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005). Within that
framework, however, "findings of fact are reviewed for clear error
and issues of law are reviewed de novo." Id. Here, the facts are
undisputed, and the only legal question is whether the collection
of Weikert's DNA under the DNA Act violates his rights under the
Fourth Amendment. We subject that issue to de novo review, see
United States v. Sargent, 319 F.3d 4, 8 (1st Cir. 2003); our
disposition of the issue will determine Weikert’s likelihood of
success on the merits.
A. Individualized Suspicion and Conditional Release
The Fourth Amendment guarantees that the people shall be
"secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const. amend. IV.
Unquestionably, the extraction of blood for DNA profiling
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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 fact that a search occurred, however, is not
dispositive of the Fourth Amendment inquiry. Rather, "[t]he
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.'"
Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977)(quoting Terry v.
Ohio, 392 U.S. 1, 19 (1968)). Establishing that a search is
reasonable ordinarily requires that the government demonstrate
probable cause to a neutral magistrate and obtain a particularized
warrant authorizing the search. United States v. United States
Dist. Ct., 407 U.S. 297, 315-16 (1972). However, the Court has
authorized certain exceptions to these requirements, including,
relevant to our purposes, in "those exceptional circumstances in
which special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable."
New Jersey v. TLO, 469 U.S. 325, 351 (1985)(Blackmun, J.,
concurring).
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The so-called "special needs" doctrine has been used to
analyze searches in a variety of contexts where the government has
neither obtained a warrant nor established individualized
suspicion. See, e.g., Illinois v. Lidster, 540 U.S. 419, 423-28
(2004) (upholding a highway checkpoint designed to enable police to
question citizens about a recent crime); Bd. of Educ. v. Earls, 536
U.S. 822, 828-30 (2002) (upholding a program that required all
students participating in extracurricular activities to submit to
random, suspicionless drug testing); Ferguson v. City of
Charleston, 532 U.S. 67, 77-84 (2001) (holding unconstitutional a
public hospital's non-consensual drug testing of maternity
patients); City of Indianapolis v. Edmond, 531 U.S. 32, 41-47
(2000)(invalidating a roadside checkpoint designed to detect
illegal drugs); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,
660-65 (1995)(upholding a program subjecting student athletes to
random, suspicionless drug testing). In determining whether a
suspicionless search qualifies for the "special needs" exception,
a critical issue is whether the search is designed to further
ordinary law enforcement objectives. The Court has invalidated
programs "whose primary purpose was to detect evidence of ordinary
criminal wrongdoing," explaining that this type of "general
interest in crime control" could not qualify as a special need.
Edmond, 531 U.S. at 41-42 (citation and internal quotation marks
omitted); see also Ferguson, 532 U.S. at 83 (holding the program
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invalid because the "immediate objective of the searches was to
generate evidence for law enforcement purposes").
The Court previously has applied the "special needs"
doctrine in evaluating the constitutionality of a law targeted at
individuals on conditional release.4 In Griffin v. Wisconsin, 483
U.S. 868, 873 (1987), the Court upheld a Wisconsin law permitting
any probation officer to search a probationer's home without a
warrant so long as there were "reasonable grounds" to support a
search. The Court explained that "the special needs of Wisconsin's
probation system make the warrant requirement impracticable and
justify replacement of the standard of probable cause by
'reasonable grounds.'" Id. at 876. Requiring probation officials
to obtain a warrant would "set[] up a magistrate rather than the
probation officer as the judge of how close a supervision the
4
Probation, supervised release, and parole are all different
forms of conditional release from prison. Probation is an
alternative sanction to imprisonment in which a court permits a
convicted offender to serve his or her sentence in the community
subject to certain conditions and supervision by a probation
officer. 18 U.S.C. §§ 3561, 3563. Supervised release, by
contrast, is a period of community supervision imposed by the court
to be completed after release from a jail or prison sentence, 18
U.S.C. § 3583(a); it may be subject to the same conditions as
probation, see id. § 3583(d), and also involves supervision by a
probation officer, see id. § 3583(f). Parole is similar to
supervised release in that it consists of a period of community
supervision to follow a prison term; however, after the Sentencing
Reform Act of 1984, Pub. L. No. 98-473 (codified as amended at 18
U.S.C. §§ 3551-3742), parole is no longer a valid status for new
federal offenders. See, e.g., Johnson v. United States, 529 U.S.
694, 696-97 (2000)(recognizing abolition of most forms of parole
and the creation of supervised release).
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probationer requires," delay probation officials' response to
evidence of misconduct, and reduce the deterrent caused by the
possibility of prompt searches. Id. Likewise, compliance with the
probable cause requirement "would reduce the deterrent effect of
the supervisory arrangement," id. at 878, and would prevent the
probation office being able to "intervene before a probationer does
damage to himself or society," id. at 879. Given the state's
interest in assuring "that the probation serves as a period of
genuine rehabilitation and that the community is not harmed by the
probationer's being at large," id. at 875, the Court found the
Wisconsin law constitutional.
Subsequently, however, in United States v. Knights, 534
U.S. 112 (2001), the Court did not apply the special needs doctrine
in upholding a warrantless search of a probationer that was
supported by reasonable suspicion. Rather, the Court held that the
search was reasonable "under [the] general Fourth Amendment
approach of 'examining the totality of the circumstances.'" Id. at
118 (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). In
explaining its decision, the Court noted that the probationer had
signed a probation order agreeing to submit to a search of his
person and property by a law enforcement officer "at any[ ]time,
with or without a search warrant, warrant of arrest or reasonable
cause." Id. at 114. Thus, the probationer's status informed both
sides of the Fourth Amendment reasonableness balance. Probationers
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inherently have a decreased expectation of privacy, and the
agreement to the search condition further decreased that
expectation. Id. at 119-20. The government also has a greater
interest in preventing recidivism, and is "quite justified" in
concluding that a probationer "will be more likely to engage in
criminal conduct than an ordinary member of the community." Id. at
121. The Court concluded that "the balance of these considerations
requires no more than reasonable suspicion," ultimately holding
that "the warrantless search . . . , supported by reasonable
suspicion and authorized by a condition of probation, was
reasonable within the meaning of the Fourth Amendment." Id. at
121-22.
Most recently, in Samson v. California, 126 S. Ct. 2193,
2197 (2006), the Court applied a totality of the circumstances
analysis in upholding a suspicionless search of a parolee conducted
pursuant to a California law stating that, as a condition for
release, every prisoner eligible for state parole must agree to be
subject to a search or seizure by a parole officer with or without
a search warrant and with or without cause.5 After reiterating
Knights's holding that "probationers 'do not enjoy the absolute
liberty to which every citizen is entitled,'" id. (quoting Knights,
534 U.S. at 119), the Court explained that, "[e]xamining the
5
Samson was decided subsequent to the district court's
decision in this case.
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totality of the circumstances pertaining to petitioner's status as
a parolee, . . . including the plain terms of the parole search
condition, . . . petitioner did not have an expectation of privacy
that society would recognize as legitimate," id. at 2199 (citations
omitted). The Court also deemed the state's interests
"substantial," citing the need to reduce recidivism and promote
reintegration among those on conditional release. Id. at 2200.
Given the number of parolees and the high likelihood of recidivism,
"a requirement that searches be based on individualized suspicion
would undermine the State's ability to effectively supervise
parolees and protect the public from criminal acts by reoffenders."
Id. at 2200-01. Thus, the Court concluded, "a condition of release
can so diminish or eliminate a released prisoner's reasonable
expectation of privacy that a suspicionless search by a law
enforcement officer would not offend the Fourth Amendment." Id.
2196.
B. Application to the DNA Act
The other circuits have split in the analysis they apply
to the federal DNA Act or its state law analogs. A majority — the
Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and D.C. Circuits —
use the totality of the circumstances analysis described in Knights
and Samson. See United States v. Kraklio, 451 F.3d 922, 924 (8th
Cir. 2006)(federal DNA Act); Johnson v. Quander, 440 F.3d 489, 496
(D.C. Cir. 2006)(federal DNA Act); United States v. Sczubelek, 402
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F.3d 175, 184 (3d Cir. 2005)(federal DNA Act); Padgett v. Donald,
401 F.3d 1273, 1280 (11th Cir. 2005)(Georgia analog); United States
v. Kincade, 379 F.3d 813, 832 (9th Cir. 2004)(en banc)(federal DNA
Act); Groceman v. U.S. Dep't of Justice, 354 F.3d 411, 413-14 (5th
Cir. 2004)(per curiam)(federal DNA Act); Jones v. Murray, 962 F.2d
302, 306-07 (4th Cir. 1992)(Virginia analog). A minority — the
Second, Seventh, and Tenth Circuits — apply the special needs
analysis. See Amerson, 483 F.3d 73, 79 n.6 (2d Cir. 2007)(federal
DNA Act); United States v. Hook, 471 F.3d 766, 773 (7th Cir.
2006)(federal DNA Act); United States v. Kimler, 335 F.3d 1132,
1146 (10th Cir. 2003)(federal DNA Act). Finally, the Sixth
Circuit, in United States v. Conley, 453 F.3d 674, 679-81 (6th Cir.
2006), declined to choose a mode of analysis, holding that the DNA
Act was constitutional under either a totality of the circumstances
or a special needs analysis.6
Much of this authority preceded the Supreme Court’s
decision in Samson, which now offers additional guidance. 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
6
The circuits also disagree over which test is more
rigorous. Compare Sczubelek, 402 F.3d at 184 (explaining that it
would apply the "more rigorous Knights totality of the
circumstances test rather than the Griffin special needs exception)
and Kraklio, 451 F.3d at 924 (same) with Amerson, 483 F.3d at 79
n.6 (2d Cir. 2001)(indicating that the special needs test is more
"stringent").
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concluded that a suspicionless search could not be justified absent
a special need (or some other exception). See, e.g., Nicholas v.
Goord, 430 F.3d 652, 666 (2d Cir. 2005)("The Supreme Court has
never applied a general balancing test to a suspicionless-search
regime."). However, Samson now indicates that the totality of the
circumstances analysis is, in fact, the appropriate framework to
apply in a situation involving even a suspicionless search of a
conditional releasee. Samson, 126 S. Ct. at 2202; see also id. at
2204 (Stevens, J., dissenting)(explaining that "the Court for the
first time upholds an entirely suspicionless search unsupported by
any special need"). In so holding, the Court explained that "[t]he
touchstone of the Fourth Amendment is reasonableness, not
individualized suspicion," and noted that the "'Fourth Amendment
imposes no irreducible requirement of such suspicion,'" 126 S. Ct.
at 2201 n.4 (quoting United States v. Martinez-Fuerte, 428 U.S.
543, 561 (1976)). It concluded:
[A]lthough this Court has only sanctioned
suspicionless searches in limited
circumstances, namely programmatic7 and special
needs searches, we have never held that these
are the only limited circumstances in which
searches absent individualized suspicion could
be "reasonable" under the Fourth Amendment.
In light of California's earnest concerns
respecting recidivism, public safety, and
7
The Supreme Court has not provided a precise definition of
a "programmatic" search. However, it has listed as examples of
such searches "checkpoints to combat drunk driving or drug
trafficking." Brigham City v. Stuart, 126 S. Ct. 1943, 1948
(2006).
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reintegration of parolees into productive
society, and because the object of the Fourth
Amendment is reasonableness, our decision
today is far from remarkable.
Id. (footnote added). Samson thus indicates that a search of an
individual on conditional release is properly subject to the
totality of the circumstances analysis rather than the special
needs analysis, notwithstanding the lack of individualized
suspicion.
The Court's application, in Samson, of the totality of
the circumstances analysis also may reflect its recognition that
the search in that case could not qualify as a "special needs"
search. Special needs involve those "beyond the normal need for
law enforcement," Griffin, 483 U.S. at 873, and the search in
Samson — that of a suspected parole violator's person by a law
enforcement officer, Samson, 126 S. Ct. at 2196 — is difficult to
characterize as anything other than an ordinary law enforcement
search for weapons or contraband. A similar problem arises in
attempting to apply the special needs test to the DNA Act. The
CODIS mission statement explicitly states that it is an "effective
tool for solving violent crimes" and that it was formed in 1990
"for law enforcement purposes." See Federal Bureau of
Investigation, CODIS Mission Statement & Background, available at
http://www.fbi.gov/hq/lab/codis/program.htm (last visited July 11,
2007). Moreover, the legislative history reveals a multitude of
references to the goal of solving crimes. See United States v.
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Kincade, 379 F.3d 813, 856 (9th Cir. 2004)(Reinhardt, J.,
dissenting)(collecting citations to the legislative history).
Although the government's brief emphasizes certain arguably non-
law-enforcement-related purposes of the DNA Act, such as obtaining
reliable proof of a felon's identity and preventing recidivism, it
is clear that law enforcement objectives predominate. Thus, the
centrality of law enforcement objectives to the DNA Act buttresses
our conclusion that the totality of the circumstances analysis,
rather than the special needs analysis, is appropriate.8
Despite Samson's focus on reasonableness and the totality
of the circumstances, two circuits subsequently have applied the
special needs analysis to the DNA Act. In Hook, the Seventh
Circuit made no reference to Samson and followed, without
8
We understand the dissent's desire to read Samson as
narrowly as possible, and thereby preserve the special needs
analysis for a case such as this. If that could be done, the
regime established by the DNA Act, with its law enforcement
objectives, probably could not meet the special needs standard.
Respectfully, however, we believe that Samson can only be read to
eliminate the special needs analysis in a case involving the
suspicionless search of a suspect on supervised release. The fact
that a central purpose of the DNA Act is to solve crimes does not
distinguish it from the program at issue in Samson — as noted, the
search in that case was a classic law enforcement search designed
to uncover evidence of weapons or contraband. The fact that the
program at issue in Samson is in part designed to "reintegrat[e] []
parolees into productive society," Samson, 126 S. Ct. at 2201 n.4,
does not distinguish it from the regime established by the DNA Act,
which also has reintegration as one of its goals. Relatedly, the
fact that Samson involved a state program does not meaningfully
differentiate it from the federal program at issue here. Given
that the programs are similar in all relevant ways, we believe that
we are required to use here the totality of the circumstances
analysis employed by the Court in Samson.
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discussion, its prior decision in Green v. Berge, 354 F.3d 675 (7th
Cir. 2004), in which it applied the special needs analysis. 471
F.3d at 772. Then, in Amerson, the Second Circuit concluded that
Samson did not affect its prior decision in United States v.
Lifshitz, 369 F.3d 173, 180-81 (2d Cir. 2004), in which it applied
the special needs test to probationers challenging New York's DNA
indexing statute. 483 F.3d at 79. In light of its circuit
precedent, the court concluded that the special needs test should
apply "[b]ecause the Supreme Court has not, to date, held that the
expectations of privacy of probationers are sufficiently diminished
to permit probationer suspicionless searches to be tested by a
general balancing test."
Notwithstanding Amerson's holding, we conclude that there
is no rationale for differentiating supervised release from other
conditional release statuses for purposes of determining whether to
apply the totality of the circumstances analysis or the special
needs analysis. The grounds cited by the Supreme Court in its
decision to apply a totality of the circumstances analysis in
Samson — the state’s broad concerns regarding "recidivism, public
safety, and reintegration," Samson, 126 S. Ct. at 2201 n.4 — apply
similarly to parolees and supervised releasees. Moreover, in
general the circuits "have not distinguished between parolees,
probationers, and supervised releasees for Fourth Amendment
purposes." Kincade, 379 F.3d at 817 n.2 (collecting cases); see
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also Sczubelek, 402 F.3d at 179 (explaining that, "[e]ven though
this is the first opportunity we have had to address this issue in
the context of an individual on supervised release, we have
addressed similar challenges in the context of parole and
probation," and following those previous rulings).9 Finally, as we
have explained, law enforcement objectives are central to the DNA
Act, and thus the analysis applicable to special needs "beyond the
normal need for law enforcement," Griffin, 483 U.S. at 873, is
inapplicable here. Consequently, we hold that the analysis used
for parolees in Samson is appropriately applied to the supervised
release situation present here. See Kraklio, 451 F.3d at 924
(applying the totality of the circumstances analysis to a
probationer's challenge to the DNA Act after Samson).
C. Balancing of Interests
Having determined that we apply the general Fourth
Amendment totality of the circumstances analysis to Weikert’s
challenge to the DNA Act, we now weigh his expectation of privacy
against the government's interests in conducting the search.
1. Privacy Interests
9
In Samson, the Court suggested a distinction between parole
and probation, noting that "parolees have fewer expectations of
privacy than probationers," 126 S. Ct. at 2198, but did not
indicate whether it would have used a different analysis if the
defendant had not been a parolee. Importantly, however, supervised
release is more closely akin to parole than to probation, see infra
note 4, and thus any distinction the Court might have drawn between
parole and probation would not differentiate parole from supervised
release.
-21-
As our discussion thus far has shown, individuals on
conditional release have a substantially diminished expectation of
privacy. See, e.g., Knights, 534 U.S. at 119 ("Inherent in the
very nature of probation is that probationers do not enjoy the
absolute liberty to which every citizen is entitled." (internal
quotation marks and citations omitted)). Indeed, in Samson, the
Court concluded that "[e]xamining the totality of the circumstances
pertaining to petitioner's status as a parolee, . . . including the
plain terms of the parole search condition, we conclude that
petitioner did not have an expectation of privacy that society
would recognize as legitimate." 126 S. Ct. at 2199.
Weikert contends that his status as a supervised releasee
distinguishes him from the parolee in Samson, affording him a
greater degree of privacy. He claims that "[r]evocation of parole
or probation may cause reinstatement of the remainder of a
sentence" while "[r]evocation of supervised release . . . cannot
reinstate the sentence as it is already completed and punishment is
statutorily capped at five years for even the most heinous
violators." He adds that "[t]his codifying of limited revocation
punishments demonstrates a far greater expectation of privacy . . .
for supervised releasees like Weikert."
Weikert's description of the differences among parole,
probation, and supervised release is not entirely accurate.
Supervised release replaced parole within the federal system as a
-22-
result of the Sentencing Reform Act of 1984, see Johnson v. United
States, 529 U.S. 694, 696-97 (2000), and both of these forms of
conditional release follow, rather than replace, a term of
imprisonment, see id. at 697. More importantly, however, as we
have already explained, courts generally have not distinguished
among conditional releasees for Fourth Amendment purposes, and we
do not find the differences material here. See supra page 20. To
the extent that different statuses may diminish an individual's
expectation of privacy to different degrees, the distinction is
probably unfavorable to Weikert. At least one court has found that
supervised release places "'[t]he most severe'" limits on
expectations of privacy, greater than those of both parole and
probation. United States v. Balon, 384 F.3d 38, 44 (2d Cir.
2004)(quoting United States v. Lifshitz, 369 F.3d 173, 181 n.4 (2d
Cir. 2004)). Thus, as previously noted, Weikert has a
substantially diminished expectation of privacy, and we accord his
privacy interest less weight in our balancing of the relevant
interests.
In addition to Weikert's status as a supervised releasee,
we must also consider the nature of the search in evaluating his
privacy interests. The Court has held that "the intrusion
occasioned by a blood test is not significant, since such 'tests
are a commonplace in these days of periodic physical examinations
and experience with them teaches that the quantity of blood
-23-
extracted is minimal, and that for most people the procedure
involves virtually no risk, trauma, or pain.'" Skinner, 489 U.S.
at 625 (quoting Schmerber, 489 U.S. at 771). Weikert emphasizes,
and we agree, that an internal search such as a blood draw is
inherently more intrusive than a purely external search such as
fingerprinting or photographing. See Sczubelek, 402 F.3d at 197
n.14 (McKee, J., dissenting)("[T]he extraction of blood involves
some risk, including infection and transmission of disease.
Although this may be viewed as 'minimal,' the risk present for any
given extraction is certainly greater than zero."); cf. Bell v.
Wolfish, 441 U.S. 520, 558 & n.39 (1979)(holding that a body cavity
search was constitutional, while noting that "the inmate is not
touched by security personnel at any time during the visual search
procedure"). However, in light of the Court's clear statement in
Skinner, the blood draw is neither a significant nor an unusual
intrusion.
Importantly, Weikert's privacy is implicated not only by
the blood draw, but also by the creation of his DNA profile and the
entry of the profile into CODIS. Weikert insists that this
additional step raises unique privacy considerations. He explains
that, unlike fingerprints, which yield only information about one’s
identity, DNA "could offer up information about his daughter, his
parents, his other family members . . . . There could be
information about diseases, environmental predispositions, or
-24-
recessive traits — all private health information that ought not to
be forcibly taken and maintained by the government." Weikert's
argument essentially reduces to two possibilities. First, the
government might disregard its current stated procedure of using
only the specified section of junk DNA to create an identifying
profile, and might instead examine other sections of his DNA to
extract personal information. Second, scientific advances might
make it possible to deduce information beyond identity from the
junk DNA the government has obtained under the DNA Act.
With respect to the first scenario, we recognize the risk
that such an abuse may occur. However, such a possibility can be
accorded only limited weight in a balancing analysis that focuses
on present circumstances. Moreover, the DNA Act offers a
substantial deterrent to such hypothetical abuse by imposing a
criminal penalty for misuse of DNA samples. It states that "[a]
person who knowingly discloses a sample or result . . . in any
manner to any person not authorized to receive it, or obtains or
uses, without authorization, such sample or result" is subject to
up to a $250,000 fine or one year in prison. 42 U.S.C. §
14135e(c). Hence, the potential for unauthorized access to
personal information, in violation of the explicit terms of the DNA
-25-
Act, does not significantly increase Weikert's privacy interest in
the present case.10
The second scenario is not unforeseeable. Although the
DNA collection as currently implemented involves only junk DNA that
is not associated with any known physical or mental
characteristics, "new discoveries are being made by the day that
challenge the core assumption underlying junk DNA's name — regions
of DNA previously thought to be 'junk DNA' may be genic after all."
Kincade, 379 F.3d at 850 (Reinhardt, J., dissenting). Therefore,
we agree that, "[s]hould the uses to which 'junk DNA' can be put be
shown in the future to be significantly greater than the record
before us today suggests, a reconsideration of the reasonableness
balance struck would be necessary." Amerson, 483 F.3d at 85 n.13.
However, on the record before us, the possibility that junk DNA may
not be junk DNA some day also does not significantly augment
Weikert's privacy interest in the present case.
2. Government Interests
10
The government has stated repeatedly that it uses only junk
DNA in creating individual DNA profiles. However, we note that the
exclusive use of junk DNA is mandated by neither the DNA Act itself
nor by regulations the Attorney General is authorized to implement
under the Act. See 42 U.S.C. § 14135a(e)(1). Indeed, the DNA Act
includes a broad authorization, id. § 14135a(a)(1)(A) & (B), to
perform “analysis of the deoxyribonucleic acid (DNA) identification
information in a bodily sample,” id. § 14135a(c)(2). None of our
sister circuits has noted this omission. For purposes of this
appeal, we take the government at its word, but emphasize that
evidence that the DNA analysis procedure has been changed to
include non-junk DNA — either officially or unofficially — would
require a reconsideration of our Fourth Amendment analysis.
-26-
In response to Weikert's assertions of privacy, the
government advances several interests served by collecting
Weikert's DNA and entering his profile into CODIS. First, it cites
the need to identify, monitor, and rehabilitate individuals on
supervised release. The Court has "repeatedly acknowledged" the
importance of government "interests in reducing recidivism and
thereby promoting reintegration and positive citizenship among
probationers and parolees," and, by extension, supervised
releasees. Samson, 126 S. Ct. at 2200. The government has an
"overwhelming interest" in maintaining a record of the identities
of such individuals because they "are more likely to commit future
criminal offenses than are average citizens"; indeed, the interest
in combating recidivism is the "very premise behind the system of
close parole supervision." Penn. Bd. of Probation & Parole v.
Scott, 524 U.S. 357, 365 (1998). Relatedly, the collection of DNA
"indirectly promote[s] the rehabilitation of criminal offenders by
deterring them from committing crimes in the future." Sczubelek,
402 F.3d at 186; see also Kincade, 379 F.3d at 838-39.
The government also explains that the inclusion of DNA
profiles in the database enhances its ability to solve crimes
efficiently and accurately. As other circuits have noted:
The individuality of the DNA provides a
dramatic new tool for the law enforcement
effort to match suspects and criminal conduct.
Even a suspect with altered physical features
cannot escape the match that his DNA might
make with a sample contained in a DNA bank, or
-27-
left at the scene of a crime . . . . The
governmental justification for this form of
identification, therefore, relies on no
argument different in kind from that
traditionally advanced for taking fingerprints
and photographs, but with additional force
because of the potentially greater precision
of DNA sampling and matching methods."
Amerson, 483 F.3d at 87; see also Jones v. Murray, 962 F.2d 302,
307 (4th Cir. 1992). Importantly, CODIS also has the capacity to
exonerate those wrongly suspected of criminal activity. The DNA
Act protects "innocent individuals — whose DNA does not match the
DNA collected at the crime scene — from even becoming potential
suspects." Amerson, 483 F.3d at 88; see also Kincade, 379 F.3d at
839 n.38 ("[U]se of CODIS promptly clears thousands of potential
suspects — thereby . . . 'advancing the overwhelming public
interest in prosecuting crimes accurately.'" (quoting Rise v.
Oregon, 59 F.3d 1556, 1561 (9th Cir. 1995)). And, as discussed,
the fact that CODIS has aided over 50,000 investigations around the
country provides empirical evidence of its effectiveness. See
Investigations Aided.
Finally, we note that the DNA Act includes no
discretionary component. Courts have acknowledged that the
presence of such discretion affects the balancing of interests
because it risks "dignitary harms that arouse strong resentment in
parolees and undermine their ability to reintegrate into productive
society.” Samson, 126 S. Ct. at 2202; see also Sczubelek, 402 F.3d
at 187. Here, there is no possibility of such abuse: the DNA Act
-28-
states that the probation office "shall collect a DNA sample from
each . . . individual [on probation, parole, or supervised release]
who is, or has been, convicted of a qualifying federal offense."
42 U.S.C. § 14135a(a)(2).11 In short, the importance of the
government's interests is not diluted by the possibility of
selective enforcement or harassment.
3. Balancing of Interests
After careful consideration, we conclude that the
government's important interests in monitoring and rehabilitating
supervised releasees, solving crimes, and exonerating innocent
individuals outweigh Weikert's privacy interests, given his status
as a supervised releasee, the relatively minimal inconvenience
occasioned by a blood draw, and the coding of genetic information
that, by statute, may be used only for purposes of identification.
We emphasize that other factors, such as demonstrated misuse of the
DNA samples, a change in the government’s collection procedures to
include non-junk DNA, or the discovery of new uses for "junk DNA,"
would require a reevaluation of the reasonableness balance. See
Amerson 483 F.3d at 87 ("[W]e underscore that were we faced with
evidence of misuse of the DNA samples or scientific advances
concerning the information that can be mined from the DNA footprint
stored on the CODIS database, our analysis and ultimate conclusions
11
As noted, qualifying federal offenses include all felonies,
as well as various other offenses, and conspiracy or attempt to
commit those offenses. See supra note 1.
-29-
might very well be different." (citations omitted)); Jones, 440
F.3d at 499 ("[F]uture 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."). After
consideration of the totality of the circumstances present here,
however, we conclude that neither the blood draw nor the subsequent
creation of a DNA profile and the entry of that profile into CODIS
constitutes an unreasonable search or seizure in violation of the
Fourth Amendment.12
D. Limitations
We emphasize another important limitation on our holding.
This case presents a challenge to the practice of collecting and
analyzing the DNA of an individual currently on supervised release.
Thus, we express no opinion on the constitutionality of the
retention and searching by the government of the DNA profiles of
individuals who have completed their terms of conditional release,
which is its standard practice.
12
We respect the dissent's concerns about the long term
implications of our decision here. That perspective is important.
Every doctrine can be applied to future cases in ways that may or
may not be desirable. At the same time, a concern for potential
future applications cannot justify a result at odds with the
circumstances of the case before us. Nevertheless, mindful of the
potential implications of our decision, we have chosen to craft a
narrow decision that recognizes the result required in this case
while preserving the possibility of different outcomes in future
cases.
-30-
On this point, we find persuasive Judge Gould’s
concurrence in the judgment in the Ninth Circuit’s decision in
Kincade, which was necessary to form a majority to uphold the
constitutionality of the DNA Act. Judge Gould emphasized that the
majority opinion expressed no view on the question “whether DNA
samples, though lawfully obtained from a felon on supervised
release, may properly be retained by the government after the felon
has finished his or her term and has paid his or her debt to
society.” 379 F.3d at 842 (Gould, J., concurring). He explained
that, “[a]lthough it might seem counter-intuitive to law
enforcement that a record once gleaned might be lost, there is a
substantial privacy interest at stake.” Id. at 841-42. Thus,
“[i]n 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 privacy.” Id. at 842.
Other authorities also have suggested that the balancing
of the relevant interests would change after an individual
completes the term of conditional release. In Green v. Berge, 354
F.3d 675 (7th Cir. 2004), Judge Easterbrook explained in
concurrence that "[c]ourts that have dealt with constitutional
challenges to DNA-collection statutes frequently have lumped
together all persons subject to these laws," but that in fact
"there are at least four major categories, each subject to
-31-
different legal analysis." Id. at 679 (Easterbrook, J.,
concurring)(emphasis added). He explained that these categories
consist of "prisoners," "persons on conditional release," "felons
whose terms have expired," and "[t]hose who have never been
convicted of a felony." Id. at 679-80. Although Judge Easterbrook
then suggested that the inclusion of former conditional releasees'
DNA profiles in CODIS might be justified, explaining that
"[e]stablished criminality may be the basis of legal obligations
that differ from those of the general population," id. at 680, the
distinction he draws between current and former conditional
releasees strongly suggests that the constitutionality of the DNA
Act should be analyzed separately with respect to each group.
Similarly, in Kincade, the dissenting judges indicated
their agreement with Judge Gould's point that the privacy interests
at stake are different once a conditional releasee has completed
his term. See Kincade, 379 F.3d at 870 (Reinhardt, J.,
dissenting)(referring to the defendant's "full future expectation
of privacy"); id. at 871-72 (Kozinski, J., dissenting)(emphasizing
that "[o]nce Kincade completes his period of supervised release, he
becomes an ordinary citizen just like everyone else. Having paid
his debt to society, he recovers his full Fourth Amendment rights,
and police have no greater authority to invade his private sphere
than anyone else's"); id. at 875 (Hawkins, J., dissenting)(agreeing
that "Judge Gould properly questions whether it is reasonable to
-32-
retain the sample beyond the period of supervised release — in
perpetuity, according to this record," but concluding that the
instant case did not present that issue).
This authority alone suggests the wisdom of withholding
judgment on whether retaining a former conditional releasee's DNA
profile in CODIS passes constitutional muster. The distinction in
status between a current and a former offender clearly translates
to a change in the privacy interests at stake. A former
conditional releasee's increased expectation of privacy warrants a
separate balancing of that privacy interest against the
government's interest in retaining his profile in CODIS.
There are other considerations as well that support this
separate balancing. The ongoing evolution in our understanding of
DNA warrants particular caution in determining what is
constitutionally permissible. DNA profiles possess unique
properties that distinguish them from other records. The samples
from which those profiles are created have the potential to reveal
information about an individual’s health, propensity for certain
diseases, and, perhaps, sexual orientation and propensity for
certain conduct. Kincade, 379 F.3d at 842 n.3 (Gould, J.,
concurring); id. at 850 (Reinhardt, J., dissenting). Moreover, DNA
contains information relating to hereditary characteristics, and
thus the collection of such information also may reveal information
about profiled individuals' family members. As we have explained,
-33-
the technology surrounding DNA analysis is changing rapidly, and we
think it more prudent to decide whether the DNA profile may be
retained in CODIS following a term of conditional release in light
of the state of technology when that issue is brought before us.
Finally, we note that the group of offenders whose
profiles are entered into CODIS — all felons, plus individuals who
have committed a variety of other crimes — is heterogenous. The
justification for retaining the DNA of one type of offender beyond
the term of conditional release might be more powerful than the
justification for retaining the DNA of a different type of
offender, and we do not wish to make a blanket determination on the
undeveloped record now before us.
We acknowledge that fingerprints and other personal
records "are routinely maintained in law enforcement files once
taken." Kincade, 379 F.3d at 842 n.3 (Gould, J., concurring).
However, it may be time to reexamine the proposition that an
individual no longer has any expectation of privacy in information
seized by the government so long as the government has obtained
that information lawfully.13 Specifically with reference to DNA
13
We recognize that no circuit has held that the DNA record
must be expunged. The D.C. Circuit, in Johnson, explicitly held
that no Fourth Amendment violation results from retaining the DNA
in the database after the individual in question is no longer on
conditional release. 440 F.3d at 498. The court explained that
“accessing the records stored in the CODIS database is not a
‘search’ for Fourth Amendment purposes,” because “the process of
matching one piece of personal information against government
records does not implicate the Fourth Amendment.” Id. It then
-34-
profiling, scholars have argued that "individuals do not lose their
privacy interest in [] information merely because the government
first obtained [that information] for a valid purpose. Rather,
courts should confront the question of whether the prospective law
enforcement use . . . satisfies the reasonableness requirement of
the Fourth Amendment." Harold J. Krent, Of Diaries and Data Banks:
Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49, 94
(1995); see also Jason Tarricone, Note, "An Ordinary Citizen Just
Like Everyone Else": The Indefinite Retention of Offenders' DNA, 2
Stan. J. Civ. Rts. & Civ. Liberties 209, 249-50 (2005)(concluding
that the DNA profile, but not the tissue sample from which it was
created, should be retained after a term of conditional release).
The argument for a continued expectation of privacy despite the
legality of an initial search is particularly deserving of separate
consideration given the wealth of information that DNA has the
potential to reveal, as well as the fact that science is
continually uncovering new information that is contained in our
DNA. We are hesitant to say that an individual has no continued
analogized CODIS to police files containing snapshots and
fingerprint databases, concluding that if such material “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.” Id. at 499. Likewise, in Amerson, the Second Circuit
indicated that retention of the DNA profile in CODIS does not
“change[] the ultimate analysis” because “we have upheld, in the
past, the retention and use of information properly collected under
the Fourth Amendment, if there was a strong enough public interest
in retaining it, when there no longer was a diminished expectation
of privacy.” 483 F.3d 86.
-35-
expectation of privacy in a DNA profile when our understanding of
the information that such a profile contains is necessarily
incomplete. Cf. Florida v. Riley, 488 U.S. 445, 454-55
(1989)(O'Connor, J., concurring)(indicating that reasonable
expectations of privacy may change over time depending on what
"'society is prepared to recognize as "reasonable"'" (quoting Katz
v. United States, 389 U.S. 347, 361 (1967))). In short, there may
be a persuasive argument on different facts that an individual
retains an expectation of privacy in the future uses of her DNA
profile. That possibility, and the other interests we have
identified above, persuade us that it is wise to reserve judgment
on the constitutional issues implicated by the retention of the DNA
profile after the period of supervised release has been completed.
Our decision to limit our holding accords with the
general practice of deciding constitutional cases narrowly. See
United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 478
(1995)(noting “[o]ur policy of avoiding unnecessary adjudication of
constitutional issues"); Ashwander v. Tenn. Valley Auth., 297 U.S.
288, 347 (1936)(“The Court will not ‘formulate a rule of
constitutional law broader than is required by the precise facts to
which it is to be applied.’” (quoting Liverpool, N.Y. & Phil.
Steamship Co. v. Emigration Comm’rs, 113 U.S. 33, 39 (1885)));
Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217,
219-20 (1912)(“[T]his court must deal with the case in hand, and
-36-
not with imaginary ones. It suffices, therefore, to hold that, as
applied to cases like the present, the statute is valid.”); see
also Kincade, 379 F.3d at 840 n.2 (Gould, J., concurring). We see
no reason to depart from that practice here. Thus, we save for
another day our consideration of the Fourth Amendment interests at
stake in retaining an individual’s DNA in the database after he
completes his term of supervised release.
III.
After careful consideration, we conclude that the
collection and analysis of Weikert’s DNA under the DNA Act does not
violate the Fourth Amendment. Consequently, Weikert is unlikely to
succeed on the merits of his claim. This merits issue is by far
the most important consideration in deciding whether a preliminary
injunction was improvidently granted. See New Comm Wireless
Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). We
thus reverse the decision of the district court granting a
preliminary injunction and remand for further proceedings. Each
party shall bear its own costs.
So ordered.
-37-
STAHL, Senior Circuit Judge, dissenting. I write briefly
to dissent from the majority's able opinion. I believe there are
important distinctions between Samson v. California, 126 S. Ct.
2193 (2006), and the case before us, and would therefore employ the
special needs test and conclude that the suspicionless search
mandated by the DNA Act is an unconstitutional violation of the
Fourth Amendment. Where a right as central to our liberty as the
freedom from unreasonable searches and seizures is at stake, I am
unwilling to go further in restricting that right than the Supreme
Court has explicitly required.
The majority is correct that Samson moved one step beyond
United States v. Knights, 534 U.S. 112 (2001), by using the
totality of the circumstances test to approve a suspicionless
search of a paroled individual without warrant or cause. However,
in permitting this particular suspicionless search, the Court
merely identified, in its own language, an additional "limited
circumstance[]" in which a suspicionless search can survive Fourth
Amendment review. In my view, the condition highlighted by the
Court which gave rise to this additional limited circumstance is
not present in the case before us.
In justifying its use of the totality of the
circumstances test in a suspicionless search case, the Court wrote:
Therefore, although this Court has only
sanctioned suspicionless searches in limited
circumstances, namely programmatic and special
needs searches, we have never held that these
-2-
are the only limited circumstances in which
searches absent individualized suspicion could
be "reasonable" under the Fourth Amendment.
In light of California's earnest concerns
respecting recidivism, public safety, and
reintegration of parolees into productive
society, and because the object of the Fourth
Amendment is reasonableness, our decision
today is far from remarkable.
Samson, 126 S. Ct. at 2201 n.4. In others words, as I read this
passage, the Supreme Court has now identified three limited
circumstances in which a suspicionless search will survive Fourth
Amendment review: (1) programmatic searches; (2) special needs
searches; and (3) searches conducted as part of a state's
conditional release program. This last category is limited by the
Court's language to a state search program that is genuinely
designed to improve the monitoring and reintegration of conditional
releasees.
In my view, the DNA extraction and cataloguing program
mandated by the DNA Act does not fit within this third limited
category. As the majority makes clear, the plain language of the
Act and its legislative history show that the purpose of the DNA
Act is future crime-solving. Nothing more. It is not part of an
earnest effort on the part of the state to monitor and reintegrate
conditional releasees into society.
Because the Act does not satisfy the limited circumstance
that validated the search in Samson, in order to survive Fourth
Amendment review as a suspicionless search it must constitute
-3-
either a programmatic search (which no party has contended) or a
special needs search.14 I agree with the majority that because "law
enforcement objectives are central to the DNA Act . . . the
analysis applicable to special needs 'beyond the normal need for
law enforcement' is inapplicable here." Ante at 21 (citation
omitted). Therefore, I would hold the suspicionless search at
issue here unconstitutional under the Fourth Amendment, as it does
not meet the criteria of any of the three limited circumstances for
constitutional suspicionless searches that have been identified by
the Supreme Court.
Having made this narrow legal point, I am also compelled
to raise my grave concern that the majority's totality of the
circumstances analysis represents a further unfortunate step in the
continuing erosion of the Fourth Amendment's vital protections. By
assigning so little weight to the privacy invasion posed by
placement of one's unique DNA in a national database, and such
overwhelming weight to the state's interest in future crime
solving, the majority unfortunately lays the groundwork for the
expansion of such analysis beyond the category of prisoners,
14
As I read Samson, the Supreme Court has left open the
possibility that other types of suspicionless searches might also
survive Fourth Amendment review under the totality of the
circumstances test. I see no reason to conclude that the DNA Act
comprises a fourth exception to the general requirement of
individualized suspicion. In addition, in order to protect the
integrity of the Fourth Amendment, I would leave it to the Supreme
Court to identify additional exceptions to the general rule.
-4-
parolees, probationers, and those on conditional release, to
include ordinary citizens who, because of their employment,
activity, or position in society, also could be said to have a
reduced expectation of privacy.
I recognize that the majority leaves for another day the
question of the right to retain the DNA profile in the CODIS
database following the conclusion of appellee's supervised release
period. However, other circuits have already decided this question
and found such a limitation unnecessary. See, e.g., United States
v. Sczubelek, 402 F.3d 175, 184-85 (3rd Cir. 2005) (analogizing
permanent retention of DNA profiles to permanent retention of
fingerprints and photographs); cf. United States v. Kincade, 379
F.3d 813, 875 (9th Cir. 2004) (Kozinski, J., dissenting) ("As a
practical matter . . . the chance that Kincade could have his DNA
removed from the CODIS database once he completes his supervised
release is about the same as the chance that someone arrested and
fingerprinted, but eventually found innocent, could force the FBI
to delete his fingerprints from its database, namely nil.").
It was said by Edmund Burke, "The true danger is when
liberty is nibbled away, for expedients, and by parts." I cannot,
in good conscience, sign on to a decision that I believe provides
the legal rationale for an enormous expansion of state intrusion
into the most private of realms, without warrant, probable cause,
or even suspicion.
-5-
Therefore, I respectfully dissent.
-6-