United States v. Thomas Cameron Kincade

dissenting:

We are asked whether the forced extraction of blood from certain convicted felons, as a condition of supervised release and for the purpose of retention without time limit in a national DNA database, violates the Fourth Amendment. My colleagues have written exhaustively and well on the subject. My purpose is not necessarily to replow their ground, but to set forth my own thoughts on this difficult question.

Asking convicted felons to provide proof of identity, whether by fingerprint or DNA sample, should be viewed, as Judges Gould and Reinhardt both persuasively argue, through the lens of the “special needs” doctrine. In the abstract, I have no quarrel with the notion that this could be a reasonable exercise of government power under contemporary Fourth Amendment standards. The forcible extraction of blood, however, not mandated by Congressional command, but by dictates of law enforcement efficiency, is different. Beginning with Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), the Supreme Court has recognized that while a lawfully arrested person may have lessened expectations of privacy and be subject to other searches incident to…

We must decide whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes.

I

A

Pursuant to the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub.L. No. 106-546, 114 Stat. 2726 (2000), individuals who have been convicted of certain federal crimes 1 and who are *817 incarcerated, or on parole, probation, or supervised release 2 must provide federal authorities with “a tissue, fluid, or other bodily sample ... on which a[n] ... analysis of th[at sample’s] deoxyribonucleic acid (DNA) identification information” can be performed. 42 U.S.C. §§ 14135a(e)(1)-(2); id. at §§ 14135a(a)(1)-(2). Because the Federal Bureau of Investigation (“the Bureau”) considers DNA information derived from blood samples to be more reliable than that obtained from other sources (in part because blood is easier to test and to preserve than hair, saliva, or skin cells), Bureau guidelines require those in federal custody and subject to the DNA Act (“qualified federal offenders”) to submit to compulsory blood sampling. See Nancy Beatty Gregoire, Federal…

concurring:

I agree with the majority that Thomas Kineade’s conviction should be affirmed. I write separately because I believe that we should affirm under a “special needs” theory rather than the totality of the circumstances theory. I further pose a caveat on the limits of what we can properly decide today.

I

The majority affirms based on extension of United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001), and does not reach the issue whether the Supreme Court’s “special needs” doctrine sustains the search. I would affirm based on the “special needs” of monitoring convicts on supervised release and deterring their possible recidivism. Each method of analysis has support in Supreme Court doctrine and support from our sister circuits. But in my view it would be better to follow the special needs approach because with it extant precedents control. Griffin v. Wisconsin, 483 U.S. 868 , 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987), held that state parolees may be subject to a warrantless search based on a special needs theory. Ferguson v. City of Charleston, 532 U.S. 67 , 81 n. 15, 121 S.Ct. 1281 , 149 L.Ed.2d 205 (2001) harmonized Griffin in the context of a…

dissenting:

Today this court approves the latest installment in the federal government’s effort to construct a comprehensive national database into which basic information concerning American citizens will be entered and stored for the rest of their lives' — ■ although no majority exists with respect to the legal justification for this conclusion. 1 *843 My colleagues claim to authorize merely the “compulsory DNA profiling of certain conditionally-released federal offenders,” as authorized by the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub.L. No. 106-546, 114 Stat. 2726 (2000). We would be lucky indeed if it were possible to so limit the effect of their opinions. For, under the rationales they espouse, especially the plurality’s, all Americans will be at risk, sooner rather than later, of having our DNA samples permanently placed on file in federal cyberspace, and perhaps even worse, of being subjected to various other governmental programs providing for suspicionless searches conducted for law enforcement purposes.

Neither Supreme Court precedent nor any established rule of Fourth Amendment law supports today’s plurality or concurring opinion. Never has the…

dissenting:

New technologies test the judicial conscience. On the one hand, they hold out the promise of more effective law enforcement, and the hope that we will be delivered from the scourge of crime. On the other hand, they often achieve these ends by intruding, in ways never before imaginable, into the realms protected by the Fourth Amendment. Which is no doubt why the Supreme Court has told us to be wary of “this power of technology to shrink the realm of guaranteed privacy.” Kyllo v. United States, 533 U.S. 27, 34 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001).

The heat sensor technology at issue in Kyllo was a promising new tool for law enforcement, except for one small defect: It let the police get information about what was going on inside people’s homes— something the Fourth Amendment generally prohibits without a warrant. DNA fingerprinting is another case in point. The good news is that it lets police identify people far more easily than would be possible using retro technology. The bad news is that those people could well be us.

Once Kincade completes his period of supervised release, he becomes an ordi *872 nary citizen just like everyone else. Having paid his debt to…

379 F.3d 813 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 March 23, 2004. Filed August 18, 2004. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Maria E. Stratton, Monica Knox, and Michael Tanaka, Federal Public Defender, Los Angeles, CA, for the appellant. Jonathan L. Marcus, U.S. Department of Justice, Washington, D.C., and Debra W. Yang, Steven D. Clymer, Ronald L. Cheng, Jacqueline Chooljian, John B. Owens, U.S. Attorney's Office, Los Angeles, CA, for the appellee. Marc Rotenberg and Marcia Hofmann, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Information Privacy Center, in support of the appellant. Melinda Bird and Michelle Uzeta, Protection & Advocacy, Inc., Los Angeles, CA, for amicus curiae Protection & Advocacy, Inc., in support of the appellant. Timothy P. O'Toole, Todd Cox, Alison Flaum, and Jennifer Di Toro, Public Defender Service for the District of Columbia, Washington, D.C., for amicus curiae Public Defender Service for the District of Columbia, in support of the appellant. Bill…