dissenting:
I respectfully dissent from the reversal of the district court’s grant of qualified immunity. The majority’s determination that Kenneth Friedman (“Friedman”) had a clearly established right of privacy under the Fourth Amendment to prevent state authorities from using a buccal swab to take a DNA sample, fails to appreciate three lines of precedents that undermine its conclusion. First, both the Supreme Court and this court have held that incarcerated individuals have little, if any, expectation of privacy under the Fourth Amendment. Second, we have also held that a person legitimately in state custody has almost no right against disclosing his or her identity. Third, we have held that governments have compelling interests in establishing the identity of incarcerated repeat sex offenders. Here, Friedman, a convicted sex offender, was a pre-trial detainee facing charges of indecent exposure and open and gross lewd conduct when the state officials took a buccal swap from the inside of his mouth. In the parlance of the majority’s opinion, I would hold that this minimally invasive search was “reasonable.”
Furthermore, even if these lines of precedent did not compel the conclusion that the search was reasonable, they raise substantial questions as to Friedman’s right of privacy in this situation. Pursuant to Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), an officer is entitled to qualified immunity when the violation was not clearly established. Here, the very fact that the district court and I disagree with the majority on whether the search was reasonable, shows that Friedman’s right was not clearly established, and accordingly, the defendants are entitled to qualified immunity.1
I.
Friedman is a violent sex offender who has spent a significant portion of his life in prison having been convicted of several rapes in Ohio and Montana. Friedman’s journey through the criminal justice system began in Ohio where he was convicted in 1975 of felony rape and felony aggravated burglary and sentenced to a term of four to twenty-five years. After serving several years in prison, he moved to Mon*861tana and after being arrested and charged in 1980 with a variety of felony offenses pled guilty to two counts of felony sexual intercourse without consent, one count of felony aggravated assault, and three counts of misdemeanor theft. Although Friedman was originally sentenced to serve forty years in prison, twenty of those years were later suspended, and he was designated a “dangerous offender” for purposes of parole eligibility based on the court’s finding that he presented a danger to the public.
After completing his Montana prison sentence, Friedman moved to Las Vegas, Nevada in 2001. The State of Montana’s Department of Corrections sent a letter to Friedman’s Nevada residence notifying him that as a designated sex offender he was required to submit a DNA sample pursuant to Montana Code Annotated section 44-6-103(1), and that he should contact a sergeant in the Clark County Sheriffs Department in Nevada to schedule an appointment to provide a DNA sample. Friedman never complied.
In August 2002, Las Vegas police officers detained and questioned Friedman for stalking an individual at a health club and making a threatening telephone call. They requested that Friedman provide a DNA sample, which he refused. Friedman asserts that over the course of the next five months he was searched or arrested at least a half dozen times by police officers. On February 10, 2003, Friedman was arrested and charged with indecent exposure and open and gross lewd conduct. He was then incarcerated in the Clark County Jail. Friedman claims that upon his arrest, Las Vegas Metropolitan Police Department Detective Dolphus Boucher demanded a DNA sample from him. Friedman refused and no action was taken. In March 2003, while still a prisoner in the Clark County Jail awaiting trial on his pending charges, Friedman was taken to Detective Boucher who once again demanded a DNA sample. After Friedman refused, Detective Boucher allegedly told him that he was authorized by Clark County Deputy District Attorney Elissa Luzaich to take the DNA sample by force. Acting under this authorization, Detective Boucher forcibly took a buccal swab of DNA from the inside of Friedman’s mouth without his consent.
II.
The Fourth Amendment of the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. CONST, amend. IV. The Fourth Amendment is not triggered unless the state conducts a search or seizure in an area “in which there is a ‘constitutionally protected reasonable expectation of privacy.’ ” United States v. Van Poyck, 77 F.3d 285, 290(9th Cir.1996) (quoting New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring))). The modern test for determining whether there is a “constitutionally protected reasonable expectation of privacy” is whether the search or seizure by the government violates a subjective expectation of privacy that society objectively recognizes as reasonable.2 Id. *862We have previously recognized that the “[n]on-eonsensual extraction of blood implicates Fourth Amendment privacy rights.” Rise v. Oregon, 59 F.3d 1556, 1558-59 (9th Cir.1995) (citations omitted). The non-consensual use of a buccal swab, although significantly less intrusive than a blood sample, still implicates the Fourth Amendment.
The Fourth Amendment, however, does not proscribe all searches and seizures, but only those that are unreasonable. Virginia v. Moore, S.Ct. 1598, 1602 (2008). In order to assess whether a search is reasonable absent individualized suspicion, we apply the “general Fourth Amendment approach” and examine the totality of the circumstances in objective terms “ ‘by assessing, on the one hand, the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (quoting United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)); see also Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (“Reasonableness ... is measured in objective terms by examining the totality of the circumstances.”).
A. Expectation of Privacy
Fourth Amendment rights for inmates— whether they are convicted or pretrial detainees — fall on the lowest end of the expectation of privacy spectrum. Although we have previously recognized that prisoners do not leave all of their Fourth Amendment privacy rights at the jailhouse doors, see Van Poyck, 77 F.3d at 291(prisoners’ privacy rights are “severely curtailed”) (citations omitted), once the doors close, most privacy rights are left on the jailhouse steps. The state’s use of a buccal swab to collect a DNA sample implicates two separate privacy interests: (1) an interest in bodily integrity implicated by placing a swab in Friedman’s mouth, and (2) a privacy interest in the identifying information contained in the DNA. See United States v. Kriesel, 508 F.3d 941, 947-48(9th Cir. 2007); United States v. Kincade, 379 F.3d 813, 836-37 (9th Cir.2004) (en banc) (plurality); Rise, 59 F.3d at 1559-60. I examine each one separately.
1. The privacy interest in bodily integrity
Time and again, we have stated that the use of a blood test to take a DNA sample from an individual under state supervision is a minimal intrusion of one’s bodily integrity under the Fourth Amendment. See Kriesel, 508 F.3d at 948; Kincade, 379 F.3d at 836-37; Rise, 59 F.3d at 1560. In Kriesel, where the federal government used a blood test to collect the DNA sample from a supervised releasee, we noted that the Supreme 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 extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.’ ” 508 F.3d at 948(quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). Notably, in finding the intrusion in Kriesel to be minimal, we stated “the additional privacy implications of a blood test collecting DNA, as opposed to a cheek swab or other mechanism, do not significantly alter our analysis.” Id. Moreover, in Kineade, we recognized that *863individuals “in custody have been lawfully subject to much more severe intrusions of their corporeal privacy than a sterile blood draw,” like suspicionless body cavity searches. 379 F.3d at 837(citing Bell v. Wolfish, 441 U.S. 520, 558-60 & n. 39, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (upholding suspicionless body cavity searches of pretrial detainees and convicted prisoners)); see also Rise, 59 F.3d at 1560 (“That the gathering of DNA information requires the drawing of blood rather than inking and rolling a person’s fingertips does not elevate the intrusion upon the plaintiffs’ Fourth Amendment interests to a level beyond minimal.”).3 The state’s use of a buccal swab to collect DNA cells from the inside of a pretrial detainee’s mouth is undeniably far less intrusive than drawing blood and a relatively minor intrusion upon Friedman’s expectation of bodily privacy.
2. The privacy interest in identifying information
While Friedman may have a minimal expectation of privacy when it comes to his bodily integrity as a result of the use of a buccal swab, he has even less of an expectation when it comes to a privacy interest in the identifying information contained in the DNA. Of course, a law enforcement agent cannot generally approach law-abiding citizens on the street and forcibly take fingerprint evidence absent some type of individualized suspicion. See Rise, 59 F.3d at 1559. We have stated, however, that “in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.” Id. at 1560. Once an individual is lawfully arrested based upon probable cause, his identification becomes a matter of legitimate state interest, and he cannot claim privacy in it. See Kincade, 379 F.3d at 837; see also Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413-14(5th Cir.2004) (“Though, like fingerprinting, collection of a DNA sample for purposes of identification implicates the Fourth Amendment, persons incarcerated after conviction retain no constitutional privacy interest against their correct identification.”); Jones v. Murray, 962 F.2d 302, 306 (4th Cir.1992) (“We have not been made aware of any case, however, establishing a per se Fourth Amendment requirement of probable cause, or even a lesser degree of individualized suspicion, when government officials conduct a limited search for the purpose of ascertaining and recording the identity of a person who is lawfully confined to prison.”).
We have applied this same reasoning in the context of DNA identification. A “DNA profile ... establishes only a record of the defendant’s identity — otherwise personal information” in which somebody lawfully arrested can claim no right of privacy. Kincade, 379 F.3d at 837; see also Rise, 59 F.3d at 1559(“The information derived from [a DNA] blood sample is substantially the same as that derived from fingerprinting — an identifying marker unique to the individual from whom the information is derived.”). In fact, we have stated that “[t]hose who have suffered a lawful conviction lose an interest in their identity to a *864degree well-recognized as sufficient to entitle the government permanently to maintain a verifiable record of their identity.”4 Kincade, 379 F.3d at 837 n. 32. Although Friedman had not been convicted of the offense for which he was being held when the DNA sample was collected, he was a repeat sex offender, which as noted in the next section provided the government with an additional interest in establishing his identity.
B. Legitimate Governmental Interests
Friedman’s minimal expectation of privacy must be weighed against the state’s compelling interests in collecting a DNA sample from an incarcerated sex offender. Similar to fingerprinting, we have recognized that the use of DNA as a means of identification of individuals within the state’s custody is a significant governmental interest. Id. at 837; Rise, 59 F.3d at 1560. Other circuits agree. The Fourth Circuit has observed:
It is a well recognized aspect of criminal conduct that the perpetrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while committing a crime may be supplemented or replaced by changed names, and even changed physical features. Traditional methods of identification by photographs, historical records, and fingerprints often prove inadequate. The DNA, however, is claimed to be unique to each individual and cannot, within current scientific knowledge, be altered. 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 left at the scene of a crime within samples of blood, skin, semen or hair follicles. 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.
Jones, 962 F.2d at 307; see also United States v. Sczubelek, 402 F.3d 175, 185-86 (3d Cir.2005) (quoting and adopting language in Jones).
The fact that Friedman is a convicted sex offender provided Nevada with additional reasons for seeking a DNA sample. The state has a significant interest in monitoring sex offenders and solving crimes. “Sex offenders are a serious threat in this Nation.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (quoting McKune v. Lile, 536 U.S. 24, 32, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (plurality opinion)). “[T]he victims of sex assault are most often juveniles,” and “[wjhen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault.” Id. (quoting McKune, 536 U.S. at 32-33, 122 S.Ct. 2017). DNA profiling also has a deterrent effect that “fosters society’s enormous interest in reducing recidivism.” Kincade, 379 F.3d at 838-39. In addition, we have stated that the collection of DNA for use in a data bank “advances the overwhelming public interest in prosecuting crimes accurately — DNA evidence can exculpate an accused just as effectively as it can inculpate him.” Rise, 59 F.3d at 1561. In addition *865to solving past crimes, “DNA profiling ... helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large.” Kincade, 379 F.3d at 839.
For these reasons, I would find that our case law leads to a conclusion that a lawfully incarcerated individual, particularly a repeat sex offender like Friedman, does not have a Fourth Amendment right to prevent state authorities from using a buccal swab to take a DNA sample. I do not agree with the majority’s suggestion that gathering DNA for a “law enforcement databank” is not in itself sufficient to allow the minimally intrusive invasion of a buccal swap of a person legally in state custody. The majority also implies that there were no security concerns that supported the forcible taking of DNA from Friedman, a pre-trial detainee. The inherent import of these assertions, however, is the implication — which, as indicated, I think is correct under our case law — that the defendants could forcibly take a DNA sample from Friedman if he were a convicted prisoner or if there was a security concern. Friedman, however, was being held in the county jail and it is self-evident that the jailers’ concerns with security extend to all inmates, both those that have been convicted and those that are awaiting trial. Moreover, despite Deputy District Attorney Luzaich’s subsequent assertion that she sought the DNA sample to investigate cold cases, a reasonable officer in Detective Boucher’s position may well have thought there was a security reason for taking a DNA sample.
The distinctions asserted by the majority suggests that defendants would not have violated Friedman’s right to privacy if the DNA sample had been taken pursuant to security reasons, but they did violate his rights because Attorney Luzaich subsequently voiced what the majority considers a less compelling reason. This, however, begs the question of whether Friedman had a reasonable expectation of privacy. If Friedman, because he is a repeat sex offender and because he was legally in custody, did not have a reasonable expectation of privacy, taking a DNA sample did not violate the constitution, regardless of the weight of the state’s interest in doing so.5
Accordingly, I conclude that the defendants did not violate Friedman’s Fourth Amendment rights.
III.
We need not, however, determine whether the use of a buccal swab to take a DNA sample from Friedman was as a matter of law and fact a violation of the Fourth Amendment. The only issue before this court in this appeal is whether the defendants are entitled to qualified immunity. As noted by the majority, to determine whether a government employee is entitled to qualified immunity, we use a two-part test. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The initial question is whether “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id. Even if this question is answered in the affirmative, an employee is still entitled to qualified immunity if the constitutional right was hot clearly established. Id. Recently, the Supreme Court indicated that the two-prongs need not always be answered in order. In Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009), the Supreme Court stated that “[t]he judges of *866the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”
Even if one does not read our decisions in Kriesel, Kincade and Rise as authorizing a state to take a DNA sample from an incarcerated repeat sex offender for identification purposes, the defendants are entitled to qualified immunity because the law is not clearly established. To reject a defense of qualified immunity, the Supreme Court has instructed that we must find that “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151.
Several decisions by the Supreme Court over the past three decades call into question whether inmates maintain any expectation of privacy under the Fourth Amendment. In Bell v. Wolfish, 441 U.S. 520, 99 5. Ct. 1861, 60 L.Ed.2d 447, the Supreme Court assumed that convicted prisoners and pretrial detainees “retain some Fourth Amendment rights upon commitment to a corrections facility,” and held nevertheless that they lose a right of privacy from unannounced searches of their cells and routine body cavity searches. Id. at 558-60, 99 S.Ct. 1861; see also Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (noting that “society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell”).
More recently, the Supreme Court in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250, indicated in dicta that individuals legally in custody may not have an expectation of privacy under the Fourth Amendment.6 Applying a totality of the circumstances analysis, the Court held that the Fourth Amendment does not prohibit law enforcement from conducting a suspicionless search of a parolee who, under California law, was “subject to search or seizure by [law enforcement] at any time of the day or night, with or without a search warrant and with or without cause.” Id. at 846, 126 S.Ct. 2193. Critical to the Court’s analysis was its conclusion that parolees have “severely diminished expectations of privacy by virtue of their status alone,” which must yield to the substantial state interest of reducing recidivism. Id. at 851-54, 126 S.Ct. 2193. The majority defended its determination that “parolees are more akin to prisoners than probationers” against the dissent’s characterization that it was improperly “equat[ing] parolees with prisoners for the purpose of concluding that parolees, like prisoners, have no Fourth Amendment rights.” Id. at 850 n. 2, 126 S.Ct. 2193 (citing id. at 861, 126 S.Ct. 2193(Stevens, J., dissenting) (explaining the majority’s logic that “[pjrisoners have no legitimate expectation of privacy; parolees are like prisoners; therefore, parolees have no legitimate expectation of privacy”)). The Supreme Court’s extension of case law concerning prisoners to cover parolees certainly suggests that case law concerning convicted prisoners applies to pre-trial detainees.
*867In light of these Supreme Court decisions, and our recent opinions, I think that a reasonable detective and prosecutor could well have thought that forcibly taking a buccal swap of Friedman’s inner check was justified.7 I am not aware of any case that holds that a pre-trial detainee has a Fourth Amendment right to prevent the state from using a buccal swab to collect a DNA sample. As noted, circuit precedent recognizes that individuals in the lawful custody of the state cannot claim an expectation of privacy under the Fourth Amendment in their identification. See Kincade, 379 F.3d at 837; Rise, 59 F.3d at 1559-60(recognizing that even the “merely accused” are subject to identification procedures). Moreover, the use of a buccal swab is, at most, an extremely minor intrusion upon a pretrial detainee’s expectation of privacy in his bodily integrity, since he is subject to body cavity searches, strip searches, and blood draws. See Kriesel, 508 F.3d at 948; Kincade, 379 F.3d at 836-37; Rise, 59 F.3d at 1560. Although the defendants’ actions may not have been in compliance with applicable state statutes governing the collection of DNA samples, there is no clearly established law that compels a conclusion that the defendants violated Friedman’s Fourth Amendment rights.
Accordingly, although I would hold that Friedman has not suffered a Fourth Amendment violation, at a minimum, I would find that the defendants are entitled to qualified immunity because there is no clearly established law holding otherwise.
IV.
This is an appeal from a grant of qualified immunity. In Pearson, the Supreme Court indicated that an appellate court of appeals could affirm a grant of qualified immunity if either of the two prongs of the Saucier test was not met. 129 S.Ct. at 818. I would find, that an in-custody repeat sex offender, like Friedman, does not have a reasonable expectation of privacy under the Fourth Amendment to prevent state authorities from using a buccal swab to take a DNA sample.' However, even were the majority’s contrary position reasonable, the grant of qualified immunity nonetheless should be affirmed because the alleged constitutional violation defined by the majority was not clearly established. Accordingly, I dissent from the majority’s vacation of the district court’s grant of qualified immunity.
. I do not take issue with the majority's conclusion that Nevada authorities could not rely on Montana Code Annotated section 44-6-103 as statutory authority to collect a DNA sample from Friedman.
. For example, the Supreme Court has held that an individual does not have a reasonable expectation of privacy in attributes exposed to the public including one’s voice, United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); handwriting, United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); financial records filed with a bank, United States v. Miller, 425 U.S. *862435, 436-37, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); and trash left on the curbside, California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct 1625, 100 L.Ed.2d 30 (1988).
. As Judge Easterbrook has observed, a DNA blood test is "no different from use of a fingerprint; only the method of obtaining the information differs, and for prisoners that is a distinction without importance." Green v. Berge, 354 F.3d 675, 680 (7th Cir.2004) (Easterbrook, J., concurring); see also Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir.2005) ("In the prison context, where inmates are routinely subject to medical procedures, including blood draws, and where their expectation of bodily privacy, while intact, is diminished, the intrusiveness of a blood draw is even further minimized”).
. It also bears mentioning that Nevada's DNA collection statute, Nev.Rev.Stat. § 176.0913(6), makes it illegal to make any unauthorized disclosure of biological specimens taken pursuant to the collection statute.
. This does not mean that a state could arbitrarily take a DNA sample by force. Rather, I do not think that the constitutionality of doing so turns on which of a state’s valid interests is cited for taking a DNA sample from an incarcerated repeat sex offender.
. We also have recognized that the contours of whether a prisoner has any Fourth Amendment rights are not clear. See Somers v. Thurman, 109 F.3d 614, 617-18 (9th Cir. 1997) (stating that the Supreme Court “may have intended to strip the inmates of all Fourth Amendment privacy rights”); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.1997) (“The Supreme Court has not decided whether prison inmates retain rights cognizable under the Fourth Amendment.”).
. The majority's observation that because the most recent relevant cases were decided after the buccal swap was taken in 2003, the defendants could not rely on those decisions to support their actions (Maj. Op. at 858, n. 8), is troubling for several reasons. First, it seems to assume that cases such as Samson, Kincade, and Kriesel, eroded an inmate's preexisting Fourth Amendment right against having a buccal swap taken. Second, it suggests a focus on the intent of these particular defendants, instead of a reasonable officer. See Saucier, 533 U.S. at 202, 121 S.Ct. 2151 ("The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."). Third, it would lead to problematic result of imposing civil liability on an officer for violating a constitutional right that the courts subsequently determined did not really exist.