United States v. Thomas Kriesel, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-30197 Plaintiff-Appellee, D.C. No. v. 3:03-cr-05258-

RBL-

THOMAS EDWARD KRIESEL, JR.,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted July 10, 2012—Seattle, Washington

Filed June 28, 2013

Before: Mary M. Schroeder, Stephen Reinhardt, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Schroeder; Dissent by Judge Reinhardt UNITED STATES V . KRIESEL

SUMMARY*

Criminal Law

The panel affirmed the district court’s order on remand denying a motion pursuant to Fed. R. Crim. P. 41(g) for return of a blood sample provided to the government for analysis of the defendant’s DNA as a condition of his now-completed supervised release.

Rejecting the government’s contention that the defendant lacks standing, the panel agreed with the district court that the defendant is seeking the return of “property” and that defendant was “aggrieved” within the meaning of Rule 41.

The…

dissenting.

The majority’s opinion illustrates the failure of today’s judiciary to stand up to clear abuse of governmental authority as well as its unwillingness to protect the *1148 fundamental right to privacy of all Americans. Judges have come to place their reliance on what the government tells them, rather than on what the Constitution requires. Courts have grown more and more lax in curtailing the excesses of law enforcement, and the judiciary’s record in protecting privacy rights has become wholly unsatisfactory. No other case, however, reflects a greater surrender on the part of the courts of the citizens’ right of privacy simply because it is told “Trust Your Government.” As far as I am concerned, the Constitution demands far more.

Edward Kriesel once possessed methamphetamine; he has now paid his debt to society and is a free man. Nonetheless, the majority authorizes the government to maintain permanent custody and control over his DNA sample, a drop of his blood containing his entire genetic code, which will be kept indefinitely in a government-controlled refrigerator in a warehouse in Northern Virginia. Never before have we condoned so great an infringement on the…

Opinion by Judge Schroeder.

Dissent by Judge Reinhardt.

OPINION

Government and commercial entities enjoy increasing capacity to obtain, store, and analyze information about people, giving rise to increasing concerns about privacy. Nowhere is that upward spiral more evident than in litigation, like this case, calling into question practices relating to identifying people through their deoxyribo-nucleic acid (DNA) sequences.

The appellant here, Thomas Kriesel, pled guilty to a drug conspiracy charge, and was sentenced to a term of imprisonment followed by a term of supervised release. One condition of his supervised release required him to provide a blood sample for analysis of his DNA, and inclusion of his DNA profile into the government’s Combined DNA Index System (CO-DIS) database. Now that Kriesel has completed his term of supervised release, he has made an unusual invocation of Federal Rule of Criminal Procedure 41(g), asking the government to return the blood sample. He has no remaining objection to the government’s retention of the information in his DNA profile, which the government analyzed from the extracted blood sample, and which it currently stores in the CODIS…