United States Court of Appeals
For the First Circuit
No. 07-1245
UNITED STATES OF AMERICA,
Appellant,
v.
JAMES STEWART, a/k/a JAMES STEWART, JR.,
a/k/a JAMES L. STEWART,
Defendant, Appellee.
No. 07-1250
UNITED STATES OF AMERICA,
Appellant,
v.
NATHALIE SOTO, a/k/a NATA,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William C. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cudahy,* Senior Circuit Judge,
and Lipez, Circuit Judge.
*
Of the Seventh Circuit, sitting by designation.
Randall E. Kromm, Assistant U.S. Attorney, with whom Michael
J. Sullivan, United States Attorney, was on brief, for appellant.
Peter Charles Horstmann, with whom Partridge, Ankner &
Horstmann was on brief, for appellee Stewart.
James H. Budreau for appellee Soto.
July 7, 2008
LIPEZ, Circuit Judge. In this consolidated appeal, the
government challenges the district court's conclusion that
requiring DNA collection from non-violent felons who are sentenced
to probation violates the Fourth Amendment. In light of our
decision in United States v. Weikert, 504 F.3d 1 (1st Cir. 2007),
which was issued seven months after the district court's ruling,
that conclusion cannot stand. Although the district court
correctly concluded that a "totality of the circumstances"
balancing test must be used to analyze the constitutionality of the
DNA collection program, the court's application of that balancing
test is inconsistent with our analysis in Weikert. Accordingly, we
reverse.
I.
Appellee James Stewart was sentenced to three years of
probation after pleading guilty to felony charges that he obtained
more than $30,000 in disability benefits to which he was not
entitled, in violation of 18 U.S.C. § 641. The district court
imposed the standard terms of probation, including the requirement
that Stewart cooperate with the collection of a DNA sample, as
mandated by the DNA Analysis Backlog Elimination Act of 2000 (the
"DNA Act"),1 Pub. L. No. 106-546, 114 Stat. 2726 (2000), codified
1
The statute requires individuals who have been convicted of
"a qualifying federal offense" and who are incarcerated or on
parole, probation, or supervised release to provide federal law
enforcement authorities with "a tissue, fluid, or other bodily
sample" for purposes of extracting their DNA. 42 U.S.C. §
-2-
as amended in relevant part at 18 U.S.C. § 3563 and 42 U.S.C. §§
14132, 14135a, 14135e. Stewart moved to modify the conditions of
his probation, arguing that the DNA Act requirement, as applied to
him, constituted an unconstitutional warrantless and suspicionless
search. The district court agreed and granted Stewart's motion.
Appellee Nathalie Soto was sentenced by the same district
court judge to two years of probation after pleading guilty to
charges of counterfeiting in violation of 18 U.S.C. § 473. At the
sentencing hearing, which was held four days before the opinion in
Stewart was issued, the court announced sua sponte that it would
not require Soto to submit to DNA collection as a condition of her
probation in order to "be consistent with [the court's] thinking on
the matter . . . in other cases."
In its written decision in Stewart, the district court
applied the totality of the circumstances balancing test set forth
by the Supreme Court in United States v. Knights, 534 U.S. 112,
118-19 (2001), and Samson v. California, 547 U.S. 843, 848 (2006).
Under this framework, "[w]hether a search is reasonable 'is
determined by assessing, on the one hand, the degree to which it
intrudes upon an individual's privacy and, on the other, the degree
to which it is needed for the promotion of legitimate governmental
14135a(a)(1)-(2), (c)(1). The term "qualifying federal offense"
includes, inter alia, any felony. 42 U.S.C. § 14135a(d). Courts
are required to order compliance with the DNA Act "as an explicit
condition of a sentence of probation." 18 U.S.C. § 3563(a).
-3-
interests.'" Samson, 547 U.S. at 848 (quoting Knights, 534 U.S. at
118-19).
The district court first considered three governmental
interests that could support the DNA Act's requirements: 1)
supervision of individuals on probation, 2) prevention of
recidivism through deterrence, and 3) the development and
maintenance of a DNA database to assist in the solving of past and
prospective crimes. United States v. Stewart, 468 F. Supp. 2d 261,
269-70 (D. Mass. 2007). The court then discounted each of these
interests, concluding that 1) the programmatic collection of DNA
has little connection to the supervision of probationers, 2) the
government's interest in deterring crime through the DNA program
was speculative at best because Stewart's crimes were non-violent
property crimes, and 3) the government's general interest in
solving crimes should not be given "overmuch weight" in the
analysis. Id. at 270-73.
On the other side of the balance, the court acknowledged
that Stewart, as a probationer, had diminished expectations of
privacy. However, the court found that those expectations were
meaningfully greater than those of individuals who were sentenced
to terms of imprisonment or supervised release. The court further
found that the blood draw "implicate[d] the most grave privacy
rights," id. at 277, and that the subsequent analysis of the
resulting sample constituted an "extensive invasion of privacy
-4-
interests," id. at 278. In reaching this conclusion, the court
declined to consider the statutory limitations on the use of the
DNA information, noting that the use of information, once
collected, often expands over time.2 Id. at 279-80. Thus, the
court concluded that the "governmental interest in collecting this
information fail[ed] to override" Stewart's privacy interests and,
hence, the DNA Act was unconstitutional as applied to Stewart.3
Id. at 282.
Seven months later in United States v. Weikert, 504 F.3d
at 18, we upheld against Fourth Amendment challenge the collection
of DNA samples from individuals on supervised release. In doing
so, we recognized the validity of the governmental interests that
were discounted by the district court in Stewart. More
specifically, we concluded that the government has "important
interests in monitoring and rehabilitating supervised releasees,
solving crimes, and exonerating innocent individuals" through use
of the CODIS database. Id. at 14.
2
The DNA Act provides 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 a fine of up to $250,000 or one
year in prison. 42 U.S.C. § 14135e(c); see Weikert, 504 F.3d at 13
(holding that the statutory penalty for misuse mitigates the risk
that abuse will occur).
3
The district court did not issue a separate written opinion
with regard to Soto. It relied instead on the statement from the
bench that compliance with the DNA Act would not be required.
-5-
On the other side of the balance, we found that
"individuals on conditional release have a substantially diminished
expectation of privacy," and that, contrary to the district court's
conclusions in Stewart, the blood draw required for the collection
of DNA samples is "neither a significant nor an unusual intrusion."
Id. at 11-12. We also concluded that the risk of misuse of the DNA
information stored in CODIS did not "significantly increase" the
conditional releasee's privacy interest because the DNA Act
includes significant criminal penalties for such abuse and because
the "junk DNA" that is collected currently poses little risk of
abuse. Id. at 12-13. Thus, we concluded that:
[T]he 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.
Id. at 14.
Stewart and Soto seek to distinguish themselves from the
defendant in Weikert in two ways and urge us, in light of these
differences, to engage in a new balancing. First, they emphasize
the particular nature of the crimes for which they were sentenced.
They argue that because their crimes were non-violent, property-
related crimes, the collection of DNA would not serve as a
deterrent to recidivism as applied to them. This argument rests on
-6-
the flawed assumption that DNA evidence is only useful for solving
– and thereby for deterring – violent crimes. See Banks v. United
States, 490 F.3d 1178, 1189-90 (10th Cir. 2007) (noting that "DNA
can be extracted from hair, saliva, and numerous other parts of our
bodies that even a non-violent criminal could leave behind on a
piece of inculpatory evidence"). Moreover, attention to the nature
of an individual conditional releasee's crime would detract from
what we considered, in Weikert, to be a virtue of the DNA Act: that
it applies uniformly to all felons and therefore "the importance of
the government's interests is not diluted by the possibility of
selective enforcement or harassment." 504 F.3d at 14.
Second, Stewart and Soto note that they have been
sentenced only to probation, whereas the defendant in Weikert was
on supervised release.4 They claim that probationers have a
greater expectation of privacy than supervised releasees, who have
already served a term of imprisonment for their offenses. This
argument is foreclosed by our analysis in Weikert, where we noted
that "[p]robation, supervised release, and parole are all different
forms of conditional release," id. at 7 n.4, and stated that
4
As we explained in Weikert, "[p]robation 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." 504
F.3d at 7 n.4. (citing 18 U.S.C. §§ 3561, 3563). Supervised
release, on the other hand, "is a period of community supervision
imposed by the court to be completed after release from a jail or
prison sentence." Id. (citing 18 U.S.C. § 3583(a)).
-7-
"courts generally have not distinguished among conditional
releasees for Fourth Amendment purposes," id. at 12. See also
United States v. Zimmerman, 514 F.3d 851, 855 (9th Cir. 2007)
(treating probationer's Fourth Amendment challenge to DNA Act as
foreclosed by prior precedent addressing challenge by supervised
releasee); Banks, 490 F.3d at 1186-87 (making no distinction
between privacy interests of supervised releasees and probationers
in a case involving both). We explicitly found the differences
between probation and supervised release to be immaterial in
Weikert. 504 F.3d at 12. Stewart and Soto offer no compelling
rationale for altering that conclusion here. The district court's
analysis in Stewart cannot survive the balance we struck in
Weikert.
II.
Our opinion in Weikert was narrowly drawn. See id. at
14-16. We noted that "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."5 Id. at 14.
5
Stewart and Soto argue briefly that "a recent statement by
the FBI shows its intent to 're-architect the CODIS software for
use in the identification of missing persons.'" They aver that
these plans to enhance the effectiveness of the CODIS database must
be considered "in the analysis as a factor which strengthens [the
appellees'] privacy interests in [their] DNA profiles." We decline
to consider this "recent statement" because it was not contained in
the record below, and, thus, it is not properly before us. See
United States v. Chaklader, 987 F.2d 75, 75 n.1 (1st Cir. 1993).
-8-
We also reserved judgment "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."
Id. at 15. However, Stewart and Soto, as conditional releasees,
fall squarely within the analysis in Weikert. As such, Weikert
governs the disposition of the present appeal and mandates reversal
of the district court's orders in these two cases.
So ordered.
However, such evidence might be important in a future case
involving a challenge to the balance struck in Weikert on some of
the grounds noted in Weikert itself.
-9-