dissenting:
The majority fails to find a Fourth Amendment violation arising from the nonconsensual DNA genetic pattern analysis of persons convicted for murder or various sexual offenses (including such non-violent crimes as public indecency or pimping, or attempts at any of the included sexual offenses). Ostensibly applying a traditional balancing test that weighs the severity of the intrusion on personal privacy interests against the importance of the public interest served, the majority upholds extraction and analysis of blood samples, without any showing of probable cause or even individualized suspicion, solely for the ordinary law enforcement purpose of facilitating investigation of crimes that may be committed in the future. In reaching this conclusion, the majority brushes aside Supreme Court and Ninth Circuit precedent that recognizes invasion of the body as an intrusion of a scope fundamentally different from the capture of visual images or fingerprints, in which there is a minimal expectation of privacy because that information ordinarily is held out to the public. Because there is no justification for this unprecedented departure from settled Fourth Amendment jurisprudence, I respectfully dissent.
I. FORCED EXTRACTION OF BLOOD IS AN INVASION OF BODILY INTEGRITY THAT CANNOT BE CONSIDERED A DE MINIMIS SEIZURE IN THE LAW ENFORCEMENT CONTEXT
Focusing on the Supreme Court’s discussion of the routine and commonplace manner of the blood extraction process, the majority minimizes the import of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), erroneously concluding that the scope of the search is a de minimis concern. The Schmerber Court, however, considered such an intrusion into bodily integrity to be so significant that it normally would require a warrant supported by probable cause. Id. at 770, 86 S.Ct. at 1835. Except in certain narrowly limited cases, the Court repeatedly has stated its “insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.” Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970) (emphasis added). Because “[t]he integrity of an individual’s person is a cherished value in our society,” searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: “The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” Schmerber, 384 U.S. at 772, 769-770, 86 S.Ct. at 1836, 1835 (emphasis added).
Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct non-consensual blood testing without a warrant. Id. at 770-771, 86 S.Ct. at 1835-36. Therefore, forced extraction of blood not only “implicates the Fourth Amendment,” as the majority notes, but also falls squarely within the area of *1565privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual’s “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985).
To buttress its claim that a blood test raises de minimis Fourth Amendment concerns, the majority cites to selective descriptive phrases in various Supreme Court opinions in which the Court has analyzed some facet of blood testing. For example, Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), a case decided a decade before Schmerber, involved facts substantially similar to those in Schmerber. Seeking evidence connected to an accident in which three lives were lost, police had hospital attendants extract blood from an intoxicated driver whose breath smelled of liquor and whose vehicle contained a half-empty bottle of whiskey. Id. at 433, 77 S.Ct. at 409. The Court did not consider the Fourth Amendment claim because the state had not adopted the exclusionary rule. Id. at 434, 77 S.Ct. at 409. The Breithaupt Court concluded that blood testing was sufficiently “routine” not to be considered “brutal” or “offensive” under the Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), “shock the conscience” due process standard for evaluating particular sources of evidence. 352 U.S. at 434-36, 77 S.Ct. at 409-10. Clearly, this language should not be extracted from .this “shock the conscience” context as support for a conclusion that blood extraction involves a de minimis intrusion in the context of ordinary law enforcement searches.
Likewise, the majority overlooks the significant constitutional line drawn by Schmerber itself for “searches involving intrusions beyond the body’s surface.” Schmerber v. California, 384 U.S. 757, 769, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a noneonsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768, 86 S.Ct. at 1834. In answering the first question, the Court recognized that it was “writ[ing] on a clean slate” regarding the treatment of searches that involve intrusions into the human body. Id. at 767-68, 86 S.Ct. at 1833-34. It concluded that such searches require probable cause. Id. at 770-71, 86 S.Ct. at 1835-36. Its comment on the “commonplace” nature of blood extraction arose in answer to the second question — whether the means employed to secure the blood evidence were reasonable. Id. at 771, 86 S.Ct. at 1836. Thus, the Court concluded that the intrusion was sufficiently minimal to permit use of nonconsensual blood testing when there is probable cause to believe that the test will produce evidence linking the perpetrator to the crime under investigation.
Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), recognized that Schmerber ’s threshold standard was a requirement of probable cause “where intrusions into the human body are concerned,” which implicate “deep-rooted expectations of privacy.” Id. at 761, 760, 105 S.Ct. at 1617, 1616. The Winston Court then acknowledged “other factors” “[bjeyond these standards” that must be considered in determining whether a particular intrusion is reasonable: whether “the procedure threatens the safety or health of the individual” and “the extent of the intrusion upon the individual’s dignitary interests.” Id. at 761, 105 S.Ct. at 1617 (emphasis added). In regard to the additional “dignitary” factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber’s recognition that blood extraction is not “an unduly extensive imposition.” Id. at 762, 105 S.Ct. at 1617. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual’s Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging *1566that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.
Finally, the majority’s reliance on Skinner v. Railway Labor Executives’Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), is misplaced. There, the Court held that blood testing for drugs as part of “the exercise of supervision” of employees, “not to assist in the prosecution of employees, but rather to prevent accidents” in the highly regulated railway industry, is a “special need beyond the normal need for law enforcement.” Id. at 621, 620, 619, 109 S.Ct. at 1415, 1415, 1414 (internal quotations omitted and emphasis added). In that context, blood tests administered pursuant to the railway regulations do not “infringe significant privacy interests,” based on Schmerber’s discussion of the reasonableness of the procedures used for blood testing. Id. at 625, 109 S.Ct. at 1417. Skinner is not persuasive here, where the ordinary law enforcement purpose of facilitating prosecution of perpetrators of fixture crimes implicates the ordinary probable cause/individualized suspicion analysis.
Thus, although the majority asserts that Supreme Coxxrt precedent treats blood testing as meriting little judicial attention, the appropriate reading of Schmerber demonstrates that blood testing is “minimally” intrusive only in the sense that it is a less egregious example of an extremely invasive type of search — -those that involve intrusions into bodily integrity. Consequently, the Supreme Court relied on the Schmerber analysis when it invalidated a surgical incision to remove a bullet to provide evidence, stating that intrusions into the human body require a “discerning inquiry” beyond the “threshold” probable cause requirement. Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985).
The majority also fails to consider our own precedent, which consistently treats intrusion into bodily integrity as a determinative factor requiring traditional Fourth Amendment protections. In invalidating routine body cavity inspection of arrestees, we stated unequivocally that “Schmerber governs all searches that invade the interior of the body — whether by a needle that punctures the skin or a visual intrusion into a body cavity.” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449 (9th Cir.1991) (emphasis added). “Schmerber itself makes clear that the level of suspicion required for a search into the interior of a person’s body is (at least outside the prison security and border entry contexts), probable cause.” Id. We recently reaffirmed the resulting rxxle that “[bjefore a law enforcement officer may lawfully take a blood sample without consent or a warrant, he or she must have probable cause to believe that the suspect has committed an offense of which the current state of one’s blood will constitute evidence.” United States v. Chapel, 55 F.3d 1416, 1419 (9th Cir.1995) (en banc); see also Barlow v. Ground, 943 F.2d 1132, 1139 (9th Cir.1991) (finding a warrantless seizure of a gay arrestee’s blood for HIV testing per se unreasonable, in the absence of exigent circumstances, even though the arrestee bit a police officer), cert. denied, — U.S. —, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992).
II. THE MAJORITY’S JUSTIFICATION FOR VALIDATION OF THE SEIZURE RESTS ON A SHAKY FOUNDATION COBBLED FROM DISPARATE STRANDS OF FOURTH AMENDMENT JURISPRUDENCE AND FAILS TO DISTINGUISH DIS-POSITIVE SUPREME COURT AND NINTH CIRCUIT PRECEDENT
The inescapable conclusion is that Schmerber and our precedent have conducted the reasonableness balancing and found that extraction of blood, weighed against the traditional law enforcement goal of identifying perpetrators of crimes, requires probable cause. The majority opinion offers five rationales to support its disavowal of the Schmerber and Fuller-Chapel mile: (1) a rational basis because of the statistical probability of fixture crimes by recidivists, (2) a minimal intrusion analogous to that of sobriety checkpoint stops on public highways, (3) a lessened expectation of privacy in bodily integrity for convicts, (4) an acceptable use of the information analogous to fingerprinting, and (5) the statute’s mandate of an evenhanded approach *1567that eliminates police discretion. None of these justifications has merit.
First, the majority claims that the balancing test here is different and weighs in favor of the government because the statute’s mandated coercive blood testing bears a rational relationship to the public’s “incontestable” interest in identifying and prosecuting criminals. Providing the rational link between means and goal is the evidence of recidivism among murderers and some classes of sexual offenders and the fact that perpetrators of murders and some of the listed sexual offenses are likely to leave behind DNA evidence that can be matched against criminal data banks.
The majority cannot distinguish Schmerber on this basis, because furthering the public’s interest in prosecuting criminals was also the purpose for the blood test in Schmerber. In addition, the rational relationship to the goal of prosecuting perpetrators of potential future crimes is certainly more attenuated than the direct relationship of the blood testing in Schmerber to the goal of finding evidence of blood alcohol content for use in the prosecution of a drunk driver who has already violated the law. Because Schmerber requires probable cause for blood extraction in the latter circumstance, a mere statistical enhancement of future crimesolving capacity is insufficient to tip the Fourth Amendment’s reasonableness balance a different way on the same issue. The majority’s approach stands Fourth Amendment jurisprudence on its head by suggesting that statistical probabilities of future conduct can suffice in lieu of the probable cause requirement in the traditional law enforcement context.
Second, the majority implicitly likens blood extraction to brief investigatory stops of motorists at sobriety checkpoints, the unique situation in which the Supreme Court has approved suspicionless searches'in the traditional law enforcement context. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privaey regarding stops and visual searches of automobiles on the nation’s roadways. Id. at 450, 110 S.Ct. at 2485 (explaining the importance of the context of “police stops of motorists on public highways”). At these sobriety checkpoints, which motorists may choose to avoid,1 only the initial brief stop and preliminary- questioning may take place without individualized suspicion: “more extensive field sobriety testing” requires justification. Id. at 450-52, 110 S.Ct. at 2485-86. Significantly, even in the context of motorists’ lessened privacy expectations, the intrusiveness of blood extraction, because it is a criminal investigation that invades bodily integrity, requires probable cause under Schmerber. “[I]n a criminal investigation ... a search for [contraband] goods, even with a warrant, is ‘reasonable’ only when there is ‘probable cause’.” Camara v. Municipal Court, 387 U.S. 523, 535, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967).
Like the highway sobriety checkpoints, the “special needs beyond normal law enforcement” rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66, 109 S.Ct. 1384, 1390-91, 103 L.Ed.2d 685 (1989) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction). The special needs exception covers testing which “is not designed to serve the ordinary needs of law enforcement [because] ... results may not be used in criminal prosecution.” Von Raab, 489 U.S. at 666, 109 S.Ct. at 1391 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. United States Dist. Court, 15 F.3d 819, 823 (9th Cir.1994) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individual*1568ized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, 489 U.S. at 671, 677, 109 S.Ct. at 1394, 1396 (noting that “certain forms of employment may diminish privacy expectations” for the “employees who seek to be promoted” to certain positions); Vernonia School District v. Acton, — U.S. —, —, 115 S.Ct. 2386, 2393, 132 L.Ed.2d 564 (1995) (noting that schools are highly regulated and “like adults who choose to participate in a ‘closely regulated industry,’ students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy”) (emphasis added). The majority relies on the traditional law enforcement analysis because there is no basis for asserting such a special need here, but the majority opinion overlooks the centrality of the probable cause standard to the law enforcement analysis. In contrast to the special needs cases, “the probable-cause standard ‘is peculiarly related to criminal investigations.’ ” Von Raab, 489 U.S. at 667, 109 S.Ct. at 1392 (internal quotation omitted). Thus, the majority’s frequent citations to the Skinner and Acton special needs rationales provide further evidence of the weakness of their traditional law enforcement balancing analysis.
Third, the majority suggests that a person’s status as a convict is sufficient to allow noneonsensual extraction of blood unrelated to securing evidence for use in the prosecution of the individual for the crime for which he or she was convicted, just as status as an arrestee is sufficient to allow fingerprinting. Nonetheless, routine searches that intrude into prisoners’ bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91, 107 S.Ct. 2254, 2260-62, 96 L.Ed.2d 64 (1987); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.1990) (remanding for evidence of a specific penological objective because “general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable”). The majority does not and cannot rely on this “prison inmate” exception, because the sole purpose of the statute is to facilitate future criminal investigations. The statute allows authorities to conduct the blood test at any time, even immediately prior to the convict’s release. See Or.Rev.Stat. § 137.076(2)(c). The creation of the data bank has nothing to do with prison administration; in fact, the Department of Corrections indicated at hearings on the proposed legislation that it neither supported nor opposed the bill, and its practice has been to obtain the sample only at the point that the inmate is to be released from its custody. Thus, the statute falls squarely under traditional law enforcement analysis requiring probable cause for invasions of bodily integrity.
Felons enjoy those constitutional rights that are not subject to attenuation because of the security concerns of the prison context. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979) (“convicted prisoners do not forfeit all constitutional protections by reason of their conviction”); Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 712 (9th Cir.1989) (“Convicted prisoners, no less those suspected of having perpetrated criminal activity, retain some constitutional liberties.”); Tribble v. Gardner, 860 F.2d 321, 325 (9th Cir.1988) (upholding a denial of qualified immunity when inmate searches were conducted for punitive purposes unrelated to security concerns because “[i]t is now settled law ... that a prisoner loses only those rights that must be sacrificed to serve legitimate penological needs”), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir.1988) (“Our circuit’s law respects an incarcerated prisoner’s right to bodily privacy.”). Those retained rights include the protection from unjustified invasions of bodily integrity, including a right not to have blood drawn if there is no evidence of a legitimate penological objective for the search. See Walker v. Sumner, 917 F.2d 382, 386-88 (9th Cir.1990) (remanding for a factual determination whether mandatory AIDS testing of prisoners was justified by a specific penological interest in the health, welfare and safety of the prison population). *1569The Wolfish Court upheld certain body cavity searches of inmates only “in light of the central objective of prison administration, safeguarding institutional security.” Wolfish, 441 U.S. at 547, 99 S.Ct. at 1878.2 Consequently, we have rejected any extension of Wolfish beyond the prison security rationale to ordinary criminal investigatory searches of inmates. See Fuller, 950 F.2d at 1448. Therefore, status as a convict — and the concomitant fact that a convicted prisoner forfeits some of the expectations of privacy enjoyed by free citizens — cannot justify the majority’s abandonment of the constitutional requirements, established by our precedent on blood testing and body cavity searches, for an intrusion into an inmate’s bodily integrity.
The majority’s rationale ultimately rests on a fourth indefensible premise that, even in the absence of prison regulations to achieve penological objectives, the protections of the Fourth Amendment do not apply to this particular use of forced blood extraction of convicted offenders for creation of a criminal identification data bank.3 Relying on the glib linguistic ease with which various commentators categorize DNA genetic pattern analysis as a kind of genetic “fingerprinting,” the majority simply asserts that the purpose of identifying future criminal perpetrators makes it possible constitutionally to equate a forced blood extraction with a forced fingerprinting.
This premise fails, because the Supreme Court and this circuit have consistently recognized a distinction of constitutional significance between a forced invasion of bodily integrity and fingerprinting. Blood samples for DNA genetic pattern analysis must be extracted by puncturing the skin and withdrawing body fluids. Schmerber clearly requires a warrant for that forced blood extraction, unless probable cause combines with exigent circumstances such as the dissipation of blood alcohol evidence. In addition, DNA genetic pattern analysis is even more intrusive than the blood alcohol test, discussed in Schmerber and Skinner, which revealed only the current blood levels of alcohol and other behavior-altering substances. DNA genetic pattern analysis catalogs uniquely private genetic facts about the individual that should be subject to rigorous confidentiality requirements even broader than the protection of an individual’s medical records. See Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977) (recognizing the individual’s “interest in avoiding disclosure of personal matters”).
Conversely, individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints — even when their production is compelled — because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) (finding a lesser expectation of privacy in personal effects that “a person *1570knowingly exposes to the public, even in his own home or office”).
[ T]he Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public’ ... Like a man’s facial characteristics, or handwriting, Ms voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of Ms voice, any more than he can reasonably expect that Ms face will be a mystery to the world____
The required disclosure of a person’s voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber.... Rather, this is like the fingerprinting in Davis, ... [which] “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.”
United States v. Dionisio, 410 U.S. 1, 14-15, 93 S.Ct. 764, 771-72, 35 L.Ed.2d 67 (1973) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969)) (emphases added). “Fingerprinting” — like the compelled production of other aspects of an individual’s identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs— simply belongs to a different category of search that “represents a much less serious intrusion upon personal security than other types of searches and detentions.” Hayes v. Florida, 470 U.S. 811, 814, 105 S.Ct. 1643, 1646, 84 L.Ed.2d 705 (1985).4 The majority’s analysis obliterates tMs critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.
Finally, the majority relies heavily on safeguards arising from statutory mandates, such as the lack of discretion in determining whether to perform a blood test and clear standards definmg the class of individuals to whom the statute applies, that are primarily relevant in the special needs context. See, e.g., Von Raab, 489 U.S. at 667, 109 S.Ct. at 1391 (noting that a warrant is of less practical value m the regulatory context for which statutory criteria may serve a similar protective function). Blanket searches are unreasonable, however “evenhanded” they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-92, 92 n. 4, 100 S.Ct. 338, 342, 342 n. 4, 62 L.Ed.2d 238 (1979) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but “evenhanded” general police searches.
Despite all our precedent recognizing invasion of the body as an intrusion of a scope fundamentally different from the coerced production of photographs, voice prints, or fingerprints in wMch we have a minimal expectation of privacy, the practical consequence of the majority’s opirnon is that certain convicts and ex-convicts who have completed their period of incarceration have no Fourth Amendment right to body integrity. TMs is a direct result of the majority’s mistaken conflation of the carefully circumscribed special needs exception for regulatory contexts with traditional law enforcement balancing. It suggests that any class may be targeted for disfavored Fourth Amendment treatment if statistics predict that members of the class are more likely to engage in future criminal behavior than are other groups of citizens. Cf. State ex rel. Juvenile Dep’t v. Orozco, 129 Or.App. 148, 878 P.2d 432, 442 (1994) (Haselton, J., dissenting).
In ruling today that persons who have been convicted of particular crimes may be forced to submit to a blood test that may assist in apprehending perpetrators of potential future crimes, the majority takes an un*1571warranted and significant step in diminishing the Fourth Amendment protection to the “right of the people to be secure in their persons ... against unreasonable searches and seizures.” The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. “The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.” Wolfish, 441 U.S. at 595, 99 S.Ct. at 1903 (Stevens, J., dissenting). Because the majority has sacrificed a precious constitutional protection in the name of greater police efficiency, and has done so in a way that disregards our own precedents, I respectfully dissent.
. Except when the prison security rationale applies, every case in which the Supreme Court has upheld Fourth Amendment searches without individualized suspicion has involved a consensual aspect to the search.
. The fact that Wolfish specifically involved pretrial detainees rather than convicts does not diminish its relevance, because the Court explicitly held that the prison security rationale "applies equally to pretrial detainees and convicted prisoners.” Id. at 546, 99 S.Ct. at 1878. Only those measures intended as punishment may not be applied to detainees. Id. at 537-38, 99 S.Ct. at 1873. In denying the prisoners' ex post facto claim, the majority holds that this blood extraction is not punitive. Hence, our Fourth Amendment precedent regarding intrusions into bodily integrity for arrestees applies as well to protect these convicted felons. See, e.g., Fuller, 950 F.2d at 1449.
. The majority claims that invasion of an inmate’s bodily integrity is justified because a convict's identity is "a matter of state interest.” This analysis begs the question, because DNA information is much more than merely an identifying marker. Therefore, the use to which the information will be put cannot alone determine whether blood extraction for DNA analysis invades constitutionally significant interests. Today, technology allows us to insert a microchip beneath the skin and later scan the microchip for a positive identification of the individual. Under the majority's analysis, such microchip insertion would be permissible because of its function to identify criminals, even though it violates our precedent regarding the intrusiveness of an invasion of bodily integrity. As technology develops, there may well be other, more intrusive possibilities for verifying an individual’s identity. Surely, the Fourth Amendment’s proscriptions against search procedures that invade bodily integrity shield the individual from such intrusions, even though the procedures could yield enormously useful fruits for regular law enforcement purposes.
. Even so, investigative detention for fingerprinting is not valid unless it is supported by probable cause or reasonable suspicion that it will “establish or negate the suspect’s connection” to the crime committed. Id. at 817, 105 S.Ct. at 1647.