United States v. Thomas Cameron Kincade

Opinion by Judge REINHARDT; Dissent by Judge O’SCANNLAIN.

OPINION

Each leap forward in forensic science promises ever more efficient and swift resolution of criminal investigations. At the same time, technological advances frequently raise new constitutional concerns and threaten our basic liberties. 1 Here, we confront the challenge compulsory DNA collection poses to one of the most fundamental and traditional preserves of individual privacy, the human body.

We decide, in this case of first impression, whether the forced extraction of blood from parolees pursuant to the federal DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a (the “DNA Act” or the “Act”), violates the Fourth Amendment. First, we must consider whether, under general Fourth Amendment principles, blood may be extracted from parolees without their consent, simply because of their status as parolees. We conclude that, as a matter of general Fourth Amendment law, forced blood extraction from parolees requires individualized suspicion. Second, we must determine whether forced blood extraction under the DNA Act falls within the exception of the Supreme Court’s “special needs” doctrine. We hold that,…

dissenting:

Binding Ninth Circuit authority compels the conclusion that the DNA Act passes muster under the Fourth Amendment. The court now blithely holds that our decision in Rise v. Oregon, 59 F.3d 1556 (9th Cir.1995), has been overruled. I respectfully disagree. In reaching its conclusion, the majority relies on the Supreme Court’s “special needs” decisions in Indianapolis v. Edmond, 531 U.S. 32 , 121 S.Ct. 447 , 148 L.Ed.2d 333 (2000), and Ferguson v. City of Charleston, 532 U.S. 67 , 121 S.Ct. 1281 , 149 L.Ed.2d 205 (2001). This reliance, however, is misplaced because it merely begs the question we really need to be asking: whether the Supreme Court’s “special needs” jurisprudence is at all applicable to suspicionless searches of probationers conducted for the purposes of preventing crime. And even if one concedes the contention — voiced by the appellant and adopted by the majority — that Edmond and Ferguson cast doubt on our holding in Rise , it is clear that they have not done so to such a degree as to allow one three-judge panel of this court to overrule the holding of another three-judge panel. Accordingly, I must dissent.

In Rise , this court held that an Oregon…

345 F.3d 1095 UNITED STATES of America, Plaintiff-Appellee, v. Thomas Cameron KINCADE, Defendant-Appellant. No. 02-50380. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 2, 2002 — Pasadena, California. Filed October 2, 2003. Monica Knox and Michael Tanaka, Deputy Federal Public Defenders, Los Angeles, California, for the defendant-appellant. John B. Owens, Assistant United States Attorney, Criminal Complaints Section, Los Angeles, California, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Dickran Tevrizian, District Judge, Presiding. D.C. No. CR-93-00714-RAG-01. Before: Stephen Reinhardt, Diarmuid F. O'Scannlain, and Richard A. Paez, Circuit Judges. Opinion by Judge REINHARDT; Dissent by Judge O'SCANNLAIN. OPINION REINHARDT, Circuit Judge. 1 Each leap forward in forensic science promises ever more efficient and swift resolution of criminal investigations. At the same time, technological advances frequently raise new constitutional concerns and threaten our basic liberties. 1 Here, we confront the challenge compulsory DNA collection poses to one of the most fundamental and…