Boroian v. Mueller

United States Court of Appeals
For the First Circuit

No. 09-1630

MARTIN BOROIAN,

Plaintiff, Appellant,

v.

ROBERT S. MUELLER, III, Director, Federal Bureau of
Investigation; CARMEN P. WALLACE, United States Probation
Officer, U.S. PROBATION OFFICE,

Defendants, Appellees.

APPEAL THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lipez, Howard and Thompson,
Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, with whom Tamara Fisher was on brief, for
appellant.
Charles W. Scarborough, Appellate Staff, Civil Division,
Department of Justice, with whom Tony West, Assistant Attorney
General, Carmen M. Ortiz, United States Attorney, and Mark B.
Stern, Appellate Staff, Civil Division, Department of Justice, were
on brief, for appellee.

August 11, 2010
 LIPEZ, Circuit Judge. In United States v. Weikert, 504

F.3d 1, 3 (1st Cir. 2007), we rejected a supervised releasee's

Fourth Amendment challenge to the statutory requirement that he

submit a blood sample for purposes of creating a DNA profile and

entering it into a centralized government database. Applying a

totality of the circumstances test, we concluded that the

extraction of a blood sample and creation of a DNA profile from an

individual on supervised release were not unreasonable searches

under the Fourth Amendment. In this case, appellant Martin Boroian

poses a question left unanswered in Weikert. Although

acknowledging that the government lawfully obtained his DNA sample

and profile during his term of probation, Boroian challenges the

government's retention and use of his DNA profile and sample now

that he has successfully completed his term of probation. In

particular, he contends that the government's retention and

periodic matching of his DNA profile against other profiles in the

database is an unreasonable Fourth Amendment search. He further

argues that the analysis of his blood sample is an unreasonable

search and contends, for the first time on appeal, that the

retention of his blood sample is an unreasonable continuing

seizure.

We conclude that the alleged present use of Boroian's DNA

profile -- that is, the retention and matching of his lawfully

obtained profile against other profiles in the government database

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-- does not constitute a search within the meaning of the Fourth

Amendment. Boroian has not sufficiently alleged any other present

or imminent uses of his DNA profile to support an argument that his

profile is being subjected to a new search. We further conclude

that he has failed to allege any present or imminent analysis of

his DNA sample, thereby providing no factual basis for the argument

that a future analysis of his sample would constitute a separate

Fourth Amendment search. We do not address his continuing seizure

challenge to the retention of his sample, deeming that argument

waived. Accordingly, we affirm the dismissal of the complaint for

failure to state a claim upon which relief may be granted. See

Fed. R. Civ. P. 12(b)(6).

I.

A. Statutory Framework

The DNA Analysis Backlog Elimination Act of 2000 ("DNA

Act"), Pub. L. No. 106-546, 114 Stat. 2726 (2000) (codified as

amended in scattered sections of 10 U.S.C., 18 U.S.C., 28 U.S.C.

and 42 U.S.C.), requires individuals who have been convicted of "a

qualifying Federal offense" and who are incarcerated or on parole,

probation, or supervised release to provide government authorities

with a DNA sample.1 42 U.S.C. § 14135a(a)(1)(B), (a)(2). Although

1
Qualifying federal offenses for mandatory DNA collection
include, inter alia, "[a]ny felony." 42 U.S.C. § 14135a(d)(1).
Since its enactment, the DNA Act has been amended several times to
expand the list of offenses to which it applies. See generally
United States v. Kriesel, 508 F.3d 941, 943 & n.3 (9th Cir. 2007)

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the extracted DNA sample may be a "tissue, fluid, or other bodily

sample," see id. § 14135a(c)(1), it is typically a blood sample,

see United States v. Kincade, 379 F.3d 813, 817 (9th Cir. 2004) (en

banc).

The DNA Act authorizes the government to use "such means

as are reasonably necessary to detain, restrain, and collect a DNA

sample from an individual who refuses to cooperate in the

collection of the sample." 42 U.S.C. § 14135a(a)(4)(A). A

probationer's refusal to comply with the DNA collection procedure

is a violation of an express condition of probation, 18 U.S.C.

§ 3563(a)(9), and is a misdemeanor punishable by up to one year's

imprisonment and a fine of up to $100,000, 42 U.S.C.

§ 14135a(a)(5); 18 U.S.C. §§ 3571, 3581.

Once collected, a qualified federal offender's sample is

analyzed by the Federal Bureau of Investigation (FBI) to create a

DNA profile. 42 U.S.C. § 14135a(b),(c)(2); Weikert, 504 F.3d at 3.

The DNA profile is then loaded into the FBI's Combined DNA Index

System (CODIS), a centralized system that includes offender

(summarizing amendments to DNA Act). After Boroian filed his
complaint in this case, the Act was further expanded to authorize
DNA collection not only from convicted individuals, but also "from
individuals who are arrested, facing charges, or convicted [of
qualifying felonies] or from non-United States persons who are
detained under the authority of the United States." See Violence
Against Women and Department of Justice Reauthorization Act of
2005, Pub. L. No. 109-162, 1004(a), 119 Stat. 2960, 3085 (2006)
(codified as amended at 42 U.S.C. § 14135a(a)). Boroian does not
challenge, and we do not address, the constitutionality of the DNA
Act's expanded scope under the 2006 amendments.

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profiles obtained through federal, state and territorial DNA

collection programs, as well as forensic profiles drawn from crime

scene evidence. 42 U.S.C. § 14132(a); Weikert, 504 F.3d at 3-4.2

CODIS is a three-tiered system linking databases maintained at the

local, state, and national level. DNA Initiative, Levels of the

Database, http://www.dna.gov/dna-databases/levels (last visited

Aug. 5, 2010). Profiles from the local and state databases, as

well as profiles collected and analyzed by the FBI, are entered

into the national database subject to the requirements of the DNA

Act. Id.

CODIS enables law enforcement officials to check if a

given profile matches other profiles contained in the national

database. See Weikert, 504 F.3d at 4. As of June 2010, the

national database contained over 8.4 million offender profiles and

over 300,000 forensic profiles, and the FBI credited the system

with producing more than 120,000 matches assisting in over 117,000

investigations. See Federal Bureau of Investigation, CODIS-NDIS

Statistics, http://www.fbi.gov/hq/lab/codis/clickmap.htm (last

visited Aug. 5, 2010). Under the DNA Act, with limited

exceptions,3 the FBI retains qualified federal offenders' DNA

2
CODIS also contains DNA profiles from unidentified remains
and from samples voluntarily provided by relatives of missing
persons. 42 U.S.C. § 14132(a)(3), (a)(4).
3
For example, if the FBI receives a certified copy of a final
court order establishing that an individual's conviction for the
qualifying federal offense has been overturned, the individual's

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profiles and DNA samples even after they have completed their term

of probation or supervised release.

B. Factual and Procedural Background

On July 13, 2004, Boroian, a resident of Massachusetts,

was convicted in the United States District Court for the District

of Vermont of one count of making a false statement in violation of

18 U.S.C. § 1001(a)(2), a qualifying federal offense under the DNA

Act. The court sentenced him to one year of probation and imposed

a $100 special assessment. On June 8, 2005, about a month before

Boroian's term of probation was to expire, the United States

Probation Office for the District of Massachusetts ordered him to

submit to the drawing of a blood sample for DNA analysis pursuant

to the DNA Act.

Shortly before the end of his term of probation, Boroian

filed a pro se complaint seeking an order directing defendants to

withdraw their demand that he submit to DNA testing. However, not

wishing to suffer the adverse consequences of failing to comply

with the Probation Office order, he submitted on June 30, 2005, to

collection of his DNA sample as required. He successfully

completed his term of probation on July 12, 2005.

On March 11, 2008, Boroian, now represented by appointed

counsel, filed an amended complaint alleging that under the DNA

profile must be promptly expunged from the database. 42 U.S.C.
§ 14132(d)(1)(A)(i).

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Act, his DNA profile and DNA sample would be "retained by the

government in perpetuity" for the purpose of "facilitat[ing] . . .

the investigation and prosecution of past and future crimes." He

claimed that the government's retention and analysis of his DNA

profile and sample after completion of his probation term, without

reasonable suspicion of criminal activity, violated the Fourth

Amendment's prohibition on unreasonable searches and seizures. He

sought an order that his DNA profile be expunged and his DNA sample

destroyed.

Defendants filed a motion to dismiss Boroian's complaint

for failure to state a claim upon which relief could be granted,

see Fed. R. Civ. P. 12(b)(6), and the district court granted the

motion in a written order. As to Boroian's DNA profile, the court

concluded that the government's retention and periodic accessing of

his lawfully obtained DNA profile was not a new search within the

meaning of the Fourth Amendment. As to his DNA sample, the court

held that although a new analysis of the sample could constitute a

separate search under the Fourth Amendment, Boroian's complaint

contained no factual allegations of a present or imminent analysis

of the sample. This timely appeal followed.

II.

We review the grant of a motion to dismiss de novo,

accepting as true all well-pleaded facts in the complaint and

making all reasonable inferences in the plaintiff's favor. Gorelik

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v. Costin, 605 F.3d 118, 121 (1st Cir. 2010). To survive a motion

to dismiss, "a complaint must contain sufficient factual matter,

accepted as true, to 'state a claim to relief that is plausible on

its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(quoting Bell v. Twombly, 550 U.S. 544, 570 (2007)). Although not

equivalent to "a 'probability requirement,'" the plausibility

standard "asks for more than a sheer possibility that a defendant

has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556).

A. The Fourth Amendment and Weikert

The Fourth Amendment provides that the "right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated

. . . ." U.S. Const. amend IV. A Fourth Amendment search occurs

when the government infringes "an expectation of privacy that

society is prepared to consider reasonable." United States v.

Jacobsen, 466 U.S. 109, 113 (1984); see also Kyllo v. United

States, 533 U.S. 27, 33 (2001) (explaining that "a Fourth Amendment

search does not occur . . . unless the individual manifested a

subjective expectation of privacy in the object of the challenged

search and society [is] willing to recognize that expectation as

reasonable" (internal quotation marks omitted)).

In Weikert, we rejected a Fourth Amendment challenge to

the collection and analysis of DNA samples from qualified federal

offenders on supervised release. Addressing the threshold question

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of whether a search or seizure had occurred, we reasoned that the

extraction of blood for DNA profiling constituted a search under

the Fourth Amendment, and that the creation of the DNA profile and

entry of that profile into CODIS represented a further intrusion

into the individual's privacy. Id. at 6, 12. Turning to the

question of whether the search was reasonable, we recognized the

government's "important interests in monitoring and rehabilitating

supervised releasees, solving crimes, and exonerating innocent

individuals" through the use of CODIS, and concluded that those

interests outweighed the individual's privacy interest "given his

status as a supervised releasee, the relatively minimal

inconvenience occasioned by the blood draw, and the coding of

genetic information that, by statute, may be used only for purposes

of identification." Id. at 14. Thus, under the totality of the

circumstances, we held that neither the extraction of a blood

sample nor the creation of a DNA profile and its entry into CODIS

was unreasonable under the Fourth Amendment. Id. at 15.

However, we limited our holding in Weikert to the

collection and profiling of the DNA of an individual currently on

supervised release, emphasizing that supervised releasees have a

lesser expectation of privacy than offenders who have completed

their term of release. Id. at 15-16. Boroian now poses a question

expressly left open in Weikert: whether it is also constitutional

for the government to retain and access a qualified federal

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offender's DNA profile in CODIS after his or her term of supervised

release or probation has ended. Id. at 3. We first address

Boroian's Fourth Amendment challenge to the government's retention

and use of his DNA profile, and then separately address his

challenge to the government's retention of his blood sample.

B. The DNA Profile

1. The Creation and Use of the Profile

Under the DNA Act, DNA profiles currently function as

identification records not unlike fingerprints, photographs, or

social security numbers. To create a DNA profile, the FBI uses

short tandem repeat (STR) technology to analyze repeating sequences

found at thirteen specific regions, or loci, on an individual's

DNA. See Weikert, 504 F.3d at 3; Kincade, 379 F.3d at 818. Each

of the targeted loci are found on "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.'" Weikert, 504 F.3d at 3-4 (quoting 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)). Thus, the resulting

DNA profile "'provide[s] a kind of genetic fingerprint, which

uniquely identifies an individual, but does not provide a basis for

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determining or inferring anything else about the person.'" Id. at

4 (quoting H.R. Rep. No. 106-900(I), at 27). This genetic

fingerprint, represented as a series of digits, see Tracey Maclin,

Is Obtaining an Arrestee's DNA A Valid Special Needs Search Under

the Fourth Amendment? What Should (And Will) The Supreme Court Do?,

34 J.L. Med. & Ethics 165, 169 (2006), is then loaded into CODIS

without any associated information other than "'an agency

identifier for the agencies submitting the DNA profile; the

specimen identification number; . . . and the name of the DNA

personnel associated with the DNA analysis.'" Weikert, 504 F.3d at

4 (quoting H.R. Rep. No. 106-900(I), at 27).

CODIS is a powerful identification and investigation

tool, permitting state and local forensic laboratories "to exchange

and compare DNA profiles electronically in an attempt to link

evidence from crime scenes for which there are no suspects to DNA

samples of convicted offenders on file in the system." H.R. Rep.

106-900(I), at 8 (2000), 2000 WL 1420163. CODIS is currently used

to run a weekly comparison of all DNA profiles in the national

database and automatically return the resulting profile matches to

the laboratories that submitted them. See United States Dep't of

Justice, DNA Initiative, http://www.dna.gov/dna-databases/codis

(last visited Aug. 5, 2010).

The DNA Act restricts the use of retained DNA profiles to

limited purposes, including by "criminal justice agencies for law

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enforcement identification purposes," in judicial proceedings if

otherwise admissible, and for criminal defense purposes. 42 U.S.C.

§ 14132(b)(3).4 The unauthorized disclosure or use of a DNA

profile is punishable by a fine of up to $250,000 or imprisonment

of up to one year, id. § 14135e(c), and by cancellation of the

user's access to the CODIS database, id. § 14132(c).

2. The Reasonable Expectation of Privacy

Given the DNA Act's stringent limitations on the creation

and use of DNA profiles, CODIS currently functions much like a

traditional fingerprint database, permitting law enforcement to

match one identification record against others contained in the

database. See, e.g., Johnson v. Quander, 440 F.3d 489, 499 (D.C.

Cir. 2006) (CODIS functions "much like an old-fashioned fingerprint

database (albeit more efficiently)"); Banks v. United States, 490

F.3d 1178, 1192 (10th Cir. 2007) ("[Statutory] restrictions allow

the Government to use an offender's DNA profile in substantially

the same way that the Government uses fingerprint and photographic

evidence -- to identify offenders, to solve past and future crimes,

and to combat recidivism."); Nicholas v. Goord, 430 F.3d 652, 671

4
DNA profiles may also be disclosed "for a population
statistics database, for identification research and protocol
development purposes, or for quality control purposes," but only
after "personally identifiable information" has been removed. 42
U.S.C. § 14132(b)(3)(D). The term "personally identifiable
information" is not defined by the statute or implementing
regulations, although it presumably means information that could
potentially be used to link the DNA profile to the identity of its
source, such as, for example, the specimen identification number.

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(2d Cir. 2005) ("[W]e see the intrusion on privacy effected by the

statute as similar to the intrusion wrought by the maintenance of

fingerprint records.").

It is well established that identification records of

convicted felons, such as fingerprints or mugshots, are routinely

retained by the government after their sentences are complete and

may be expunged only in narrowly defined circumstances. See 28

U.S.C. § 534(a) (requiring the Attorney General to "acquire,

collect, classify and preserve" criminal identification records

(emphasis added)); United States v. Coloian, 480 F.3d 47, 49-50 &

n.4 (1st Cir. 2007) (discussing limited grounds for expungement of

criminal records); United States v. Amerson, 483 F.3d 73, 86 (2d

Cir. 2007) ("[I]t is well established that the state need not

destroy records of identification -- such as fingerprints,

photographs, etc. -- of convicted felons, once their sentences are

up.").

Other precedents hold that the government's matching of

a lawfully obtained identification record against other records in

its lawful possession does not infringe on an individual's

legitimate expectation of privacy. See, e.g., United States v.

Diaz-Castaneda, 494 F.3d 1146, 1151-53 (9th Cir. 2007) (running

computerized check of individual's lawfully obtained license plate

and driver's license identification numbers in government

databases, which revealed information about subject's car

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ownership, driver status, and criminal record, was not a search

under the Fourth Amendment); Willan v. Columbia County, 280 F.3d

1160, 1162 (7th Cir. 2002) (police query of FBI's computerized

national crime records database to reveal record of mayoral

candidate's earlier conviction in another state was not a Fourth

Amendment search).

These long-standing practices and precedents on the

retention and matching of offenders' identification records

inescapably inform a convicted offender's reasonable expectation of

privacy with respect to his or her DNA profile. As with the

matching of records in a fingerprint database, the government's use

of CODIS to match Boroian's profile against other profiles in the

database is limited to a comparison of the identification records

already in its lawful possession and does not reveal any new,

private or intimate information about Boroian. Moreover, the

government's comparison of Boroian's DNA profile with other

profiles in CODIS is precisely the use for which the profile was

initially lawfully created and entered into CODIS under the DNA

Act.

Boroian suggests that the government does not need his

DNA profile for "identification" purposes because it already has

other means of identification, such as his fingerprints and social

security number. However, the fact that the government may

lawfully retain and access these more traditional means of

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identifying Boroian only emphasizes that the government's retention

and matching of his DNA profile does not intrude on Boroian's

legitimate expectation of privacy. At present, Boroian's DNA

profile simply functions as an additional, albeit more

technologically advanced, means of identification.

Therefore, we join the other courts to have addressed the

issue in holding that the government's retention and matching of

Boroian's profile against other profiles in CODIS does not violate

an expectation of privacy that society is prepared to recognize as

reasonable, and thus does not constitute a separate search under

the Fourth Amendment.5 See Johnson, 440 F.3d at 499 ("[W]e

conclude that accessing the DNA snapshots contained in the CODIS

database does not independently implicate the Fourth Amendment.");

accord Wilson v. Collins, 517 F.3d 421, 428 (6th Cir. 2008)

(stating that claim based on the government's retention and use of

DNA profile "does not implicate the Fourth Amendment"); Amerson,

483 F.3d at 86 (acknowledging that offenders' DNA profiles will be

retained and "potentially used to identify" offenders after

probation terms have ended, but concluding that "we do not believe

that this changes the ultimate analysis"); see also Smith v. State,

744 N.E. 2d 437, 440 (Ind. 2001) (holding that the comparison of a

lawfully obtained DNA profile with other DNA profiles in government

5
Boroian does not contend that the retention of his DNA
profile constitutes an unreasonable seizure within the meaning of
the Fourth Amendment. We therefore do not address that issue.

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database does not constitute a separate search under the Fourth

Amendment and collecting other state appellate decisions in

accord). Boroian has not cited, and our research has not revealed,

any decisions holding to the contrary.6

3. Limitations Of Our Holding

We do not hold, as some courts have suggested, that once

a DNA sample is lawfully extracted from an individual and a DNA

profile lawfully created, the individual necessarily loses a

reasonable expectation of privacy with respect to any subsequent

use of that profile. See, e.g., State v. Hauge, 79 P.3d 131, 144

(Haw. 2003) (citing state appellate decisions for the proposition

that once a DNA profile has been lawfully procured from an

offender, "no privacy interest persists" in the profile); see also

Green v. Berge, 354 F.3d 675, 680 (7th Cir. 2004) (Easterbrook, J.,

concurring) (stating, in challenge to state DNA collection statute,

that lawfully obtained DNA sample may be put to various uses

because "the fourth amendment does not control how properly

collected information is deployed"). Instead, we narrowly hold

6
We acknowledge that portions of Weikert suggested in dicta
that the government's retention and periodic matching of a lawfully
obtained profile after the offender had completed his term of
supervised release would require a rebalancing of the relevant
government and privacy interests to determine the reasonableness of
the search. See 504 F.3d at 15, 16. That suggestion glossed over
the threshold question, noted in Weikert and squarely presented in
this case, of whether the government's retention and matching of a
lawfully obtained profile even constitutes a Fourth Amendment
search. See id. at 16 n.13.

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that once a qualified federal offender's profile has been lawfully

created and entered into CODIS under the DNA Act, the FBI's

retention and periodic matching of the profile against other

profiles in CODIS for the purpose of identification is not an

intrusion on the offender's legitimate expectation of privacy and

thus does not constitute a separate Fourth Amendment search.

We recognize, as we did in Weikert, the possibility that

the government may eventually seek to put Boroian's retained DNA

profile to uses that go beyond the mere matching of identification

records, thereby making the fingerprint analogy less powerful and

providing the basis for an argument that a new search has

occurred.7 For example, "scientific advances might make it

possible to deduce information beyond identity from the junk DNA"

7
We made precisely this point in Weikert, where we said that
"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. Specifically with reference to DNA 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.'"
504 F.3d at 16-17 (quoting Harold J. Krent, Of Diaries And Data
Banks: Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev.
49, 94 (1995)) (footnote omitted). Here we have decided, and only
decided, that law enforcement's retention and matching of a
qualified federal offender's lawfully obtained DNA profile for
identification purposes does not intrude on an objectively
reasonable expectation of privacy. We acknowledge, as we did in
Weikert, that "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." Id. at 17.

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that forms the thirteen-loci profiles stored in CODIS. Weikert,

504 F.3d at 12-13. Future government uses of the DNA profiles in

CODIS could potentially reveal more intimate or private information

about the profile's owner and depart from the uses for which the

profiles were originally lawfully created and retained.

In this case, however, these are merely hypothetical

possibilities. See United States v. Karo, 468 U.S. 705, 712 (1984)

("[W]e have never held that potential, as opposed to actual,

invasions of privacy constitute searches for purposes of the Fourth

Amendment."). Although Boroian points to ongoing research on the

possible functions of so-called junk DNA, he concedes that "none of

the genetic markers at the thirteen CODIS loci have, to date, been

found predictive for any physical or disease traits." Moreover, as

we have described, uses of DNA profiles are restricted by statute

to "law enforcement identification purposes" and other limited

uses. 42 U.S.C. § 14132(b)(3) (emphasis added). As in Weikert,

"the possibility that junk DNA may not be junk DNA some day . . .

does not significantly augment [Boroian's] privacy interest in the

present case." 504 F.3d at 13.

Although CODIS is designed to conduct comparisons of the

profiles in the national database and automatically report exact

profile matches, Boroian further argues that in some cases CODIS

may report a "partial match." A "partial match" occurs when two

profiles are similar but do not match exactly at all thirteen loci.

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Because "we share more of our genetic material with biological

relatives than with others," a partial match can suggest that the

source of a crime scene sample is a close biological relative of

the individual whose DNA profile partially matches the crime scene

profile. Sonia M. Suter, All in the Family: Privacy and DNA

Familial Searching, 23 Harv. J. L. & Tech. 309, 319 (2010).

Boroian thus contends that through the process of partial matching,

DNA profiles, unlike fingerprints, can be used to reveal biological

relationships between individuals.

Arguably, the government's use of CODIS to discover

partial matches could raise privacy concerns not raised by a

traditional fingerprint database. See, e.g., id. at 342-68

(discussing ways in which partial matching could implicate the

privacy interests of both the offender whose profile yields a

partial match, and the offender's relatives who could be subjected

to law enforcement scrutiny as a result of the partial match).

However, we need not address these hypothetical concerns here. To

the extent that Boroian seeks to suggest that his own privacy

interests are infringed by partial matching, he has not alleged any

present or imminent use of CODIS to check his DNA profile for

partial matches. He relies solely on a 2006 CODIS Bulletin, which

states that the occurrence of a partial match in the national

database is "an exceptional event" and that even if a partial match

does occur an offender's personally identifiable information may be

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disclosed only in narrowly specified circumstances.8 The record

contains no other information shedding light on how frequently

partial matches occur in the national database, exactly what they

reveal, or what kind of follow-up investigation is done when a

partial match arises. Thus, any potential invasion of Boroian's

privacy due to a partial match with his DNA profile is at this

point purely speculative. To the extent that Boroian seeks to

invoke the privacy interests of a familial relation who might

someday be subjected to law enforcement scrutiny based on a partial

match with Borian's profile, that claim is similarly speculative.

C. DNA Sample

Separate from the government's ongoing retention and

matching of his DNA profile, Boroian challenges the retention of

and use of his blood sample.

In the district court, the government moved to dismiss

this claim on the ground that Boroian "points to no 'search' of

[his DNA sample] that is occurring or even imminent." Boroian

responded in opposition that any future scientific analysis of his

blood sample would constitute a separate Fourth Amendment search.

In both its written motion to dismiss and at the hearing on the

8
Specifically, the 2006 Bulletin states that an offender's
identifying information may be released following a partial match
only upon written request from the participating laboratory and
upon approval from the FBI's Office of the General Counsel and the
database custodian, and then only if there is no other available
investigative information.

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motion, the government conceded that a new scientific analysis of

Boroian's stored blood sample would constitute a further Fourth

Amendment search. At the hearing, counsel set forth the

government's position: "I'm saying that the CODIS search is done,

and the CODIS information isn't a new search. If we go and do a

new analysis of the DNA, your Honor, it absolutely implicates

Fourth Amendment interests and it would need to be rebalanced, but

there isn't such a search forthcoming."

On appeal, the government neither repeats nor repudiates

that concession. Instead, it emphasizes, as the district court

found, that Boroian's complaint does not contain any factual

allegations of a present or imminent new analysis of his DNA

sample. The government further emphasizes that under the DNA Act,

the use and disclosure of stored DNA samples are subject to the

same strict limitations as DNA profiles: they may be used only for

"law enforcement identification" and other limited purposes,9 and

any unauthorized use or disclosure is subject to substantial

criminal penalties. 42 U.S.C. §§ 14132(b)(3) (emphasis added),

14135e(c). In the absence of any factual allegations of abuse, we

cannot presume that the government has acted contrary to law and

9
Like DNA profiles, DNA samples may be used only for law
enforcement identification purposes, in judicial proceedings, for
criminal defense purposes, and, if personally identifiable
information is removed, for a population statistics database,
identification research and protocol development purposes, or
quality control purposes. 42 U.S.C. § 14132(b)(3).

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subjected Boroian's sample to new scientific analyses or other

unauthorized uses. On this record, Boroian has failed to state a

claim that the government has subjected, or is about to subject,

his blood sample to new analyses. See Johnson, 440 F.3d at 500

(affirming grant of motion to dismiss Fourth Amendment challenge to

future use of DNA sample, reasoning that "[n]othing in the record

suggests such future testing is imminent, nor can we analyze its

invasiveness until it appears").

On appeal, Boroian argues that "the government's

retention of Boroian's DNA sample constitutes a continuing

suspicionless seizure" under the Fourth Amendment and that this

seizure is "separate and apart from the question of whether an

additional search of the seized materials has occurred or will

occur." However, Boroian did not present this "continuing seizure"

theory in his opposition to the motion to dismiss in the district

court, and he may not unveil it for the first time on appeal.10 See

Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59

v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any

principle is settled in this circuit, it is that, absent the most

10
Boroian contends that the "continuing seizure" argument is
not waived because his counsel made this argument at the hearing on
the motion to dismiss. However, the continuing seizure argument
was entirely absent from Boroian's opposition to the motion to
dismiss and was made only in passing at the hearing without any
citation to authority. This brief reference, made only at the
hearing, does not suffice to squarely raise the argument before the
district court.

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extraordinary circumstances, legal theories not raised squarely in

the lower court cannot be broached for the first time on appeal.").

We see no reason to deviate from that well-established principle

here.11

III.

We conclude that Boroian has failed to state a claim that

either his lawfully obtained DNA sample or his lawfully created DNA

profile has been subjected to a new Fourth Amendment search. The

government's retention and matching of Boroian's DNA profile

against other profiles in CODIS for the purpose of identification

does not invade an expectation of privacy that society is prepared

to recognize as reasonable. Boroian has not sufficiently alleged

11
We note that Boroian has sought the expungement of his
sample only on Fourth Amendment grounds. He has not moved for the
return of his DNA sample under Federal Rule of Criminal Procedure
41(g), which provides that "[a] person aggrieved by an unlawful
search and seizure of property or by the deprivation of property
may move for the property's return." (Emphasis added). See Jason
Tarricone, Note, "An Ordinary Citizen Just Like Everyone Else": The
Indefinite Retention of Former Offenders' DNA, 2 Stan. J. Civ. Rts.
& Civ. Liberties 209, 247 (2005) ("It could be argued that ex-
felons whose physical DNA sample remains in police custody should
have a right to petition for its return [under Rule 41(g)], as that
sample (as opposed to the DNA profile) is no longer necessary for
crime-solving purposes.") (citing Krent, supra, at 65-66). Nor has
Boroian moved to expunge his sample on constitutional grounds other
than the Fourth Amendment, although some commentary has suggested
that there may be other paths. See Leigh M. Harlan, Note, When
Privacy Fails: Invoking A Property Paradigm To Mandate the
Destruction Of DNA Samples, 54 Duke L. J. 179, 180 (2004) (citing
concerns expressed by DNA database opponents about the
constitutionality of DNA sampling under the Fifth and Fourteenth
Amendments, among others). We express no view on the viability of
such claims.

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any other present or imminent uses of his DNA profile to support an

argument that a new search of his profile is being conducted. He

also has not alleged any present or imminent new analysis of his

DNA sample, and therefore he has no factual basis for arguing here

that a new scientific analysis of his stored DNA sample would

constitute a separate Fourth Amendment search.

Affirmed.

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