345 F.3d 1095 (9th Cir. 2003), 02-50380, U.S. v. Kincade

Docket Nº:02-50380
Citation:345 F.3d 1095
Party Name:U.S. v. Kincade
Case Date:October 02, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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345 F.3d 1095 (9th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,


Thomas Cameron KINCADE, Defendant-Appellant.

No. 02-50380.

United States Court of Appeals, Ninth Circuit

October 2, 2003

Argued and Submitted Dec. 2, 2002.

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Monica Knox and Michael Tanaka, Deputy Federal Public Defenders, Los Angeles, CA, for the defendant-appellant.

John B. Owens, Assistant United States Attorney, Criminal Complaints Section, Los Angeles, CA, 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: REINHARDT, O'SCANNLAIN, and PAEZ, Circuit Judges.

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


REINHARDT, Circuit Judge.

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, because the DNA Act primarily serves a law enforcement purpose, the compulsory collection of blood samples pursuant to the Act does not fall within the special needs exception. Accordingly, we reverse the judgment of the district court (1) upholding the Probation Department's order requiring Thomas Kincade to submit to the extraction of blood for the purpose of providing a DNA sample, and (2) sentencing him to a term of imprisonment and increasing the period of his supervised release for his refusal to comply.


A. The Act

The DNA Act requires those in federal custody, on parole, on probation, or on supervised release to provide a DNA sample. 2 As we explain later, for practical

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purposes, this requires all such persons to submit to the non-consensual withdrawal of blood by governmental authorities or their designees. No suspicion that an individual will commit or has committed another offense is required. Nor is there any requirement that the sample be taken in order to aid in the investigation of a particular crime. Once taken, the DNA sample 3 is turned over to the Federal Bureau of Investigation, which carries out an analysis of it and includes the results in the "Combined DNA Index System" (CODIS), a DNA information bank. The DNA evidence is then permanently available for future use in connection with the investigation and prosecution of crimes. 4 Federal, state, and local law enforcement officials who conduct such investigations are able to compare CODIS information with DNA evidence obtained from crime scenes and, thereby, to identify the perpetrator, and subject him to prosecution.

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act, which authorized the FBI to establish a national index--CODIS--of DNA samples from convicted offenders, crime scenes, crime victims, and unidentified human remains. See DNA Act House Report, at 8; see also United States v. Reynard, 220 F.Supp.2d 1142, 1154 (S.D.Cal.2002). Before the DNA Act was passed, all fifty states had adopted some form of legislation mandating DNA collection for inclusion into CODIS. See Nancy Beatty Gregoire, Federal Probation Joins the World of DNA Collection, 66 FED. PROBATION 30, 30 (2002). 5 Between 1994 and 1996, however, no samples were collected from any persons convicted of federal crimes because the language of the 1994 act authorized only the creation of CODIS and not the collection of samples from convicted federal offenders. DNA Act House Report, at 8. In 1996, as part of the Anti Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. 104 132, 110 Stat. 1214 (1996), Congress directed the FBI to "expand CODIS to include Federal crimes." DNA Act House Report, at 9. After AEDPA's passage, however, the Department of Justice concluded that it still did not confer upon federal law enforcement officials the requisite legal authority to collect DNA samples from federal offenders. Consequently, the DNA Act of 2000 was enacted, and now serves as the statutory basis for the forced extraction of blood samples from federal parolees, probationers, and prisoners. 6 CODIS is currently a part of at least 137 laboratories throughout the country, and as of 2002, had provided forensic assistance in more

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than 1,900 investigations in 31 states. Gregoire, supra, at 30.

B. Factual and Procedural History

On September 1, 1993, Kincade pled guilty to one count of armed bank robbery and the use of a firearm. 18 U.S.C. §§ 2113(a), 924(c). On January 4, 1994, the district court sentenced him to 97 months, to be followed by a three-year term of supervised release. 7 Included in the standard conditions of Kincade's supervised release is the obligation to "follow the instructions of the probation officer," and to refrain from committing "another Federal, state or local crime."

Kincade was released from prison on August 4, 2000. In March 2002, pursuant to the Act, the Probation Office ordered him to submit to a blood extraction for DNA analysis. He was subject to the DNA Act because the substantive offense to which he pled guilty, armed bank robbery, is one of the specified covered offenses. 42 U.S.C. § 14135a(d)(1)(E). Kincade refused to comply with the order, and his refusal was the basis for the Probation Office's recommendation to the district court that he be found in violation of his supervised release. The failure "to cooperate in the collection of[a] sample" under the Act is a class A misdemeanor. 42 U.S.C. § 14135a(a)(5)(A). 8

After conducting a hearing, the district court rejected Kincade's constitutional challenge and found that his refusal to submit to the compulsory blood extraction ordered by the Probation Office constituted a violation of the terms of his supervised release. 9 The court sentenced Kincade to four months in custody for the violation and ordered that supervised release continue for a two-year term following release. 10 The court stayed the order

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of custody pending this expedited appeal.


A. Blood Extraction Constitutes a Fourth Amendment Search

The DNA Act simply states that "[t]he probation office responsible for the supervision under Federal law of an individual on probation, parole, or supervised release shall collect a DNA sample from each such individual who is, or has been, convicted of a qualifying Federal offense." 42 U.S.C. § 14135a(a)(2). It does not prescribe any particular method for collecting the samples. Collection, however, is accomplished pursuant to a nationwide policy of compulsory blood extractions. 11 The "DNA Collection Letter of Instruction," sent by the Central District of California Probation Office to Kincade, states that "[t]he Federal Bureau of Investigation (FBI) requires that DNA be obtained from blood samples." 12 See also Gregoire, supra, at 31 (describing FBI requirement of blood sampling); Reynard, 220 F.Supp.2d at 1146 (describing procedures to collect and identify blood samples). Thus, Kincade challenges the Act on the basis of its standard method of implementation.

Blood extractions are searches for purposes of the Fourth Amendment, and are subject to the normal Fourth Amendment requirements. 13 See Skinner, 489 U.S. at 616, 109 S.Ct. 1402 ("We have long recognized that a 'compelled intrusio[n] into the body for blood' . . . must be deemed a Fourth Amendment search."); Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ("[Blood] testing procedures plainly constitute searches of 'persons' . . . within the meaning of [the Fourth] Amendment"); United States v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000) ("Intrusions into the human body, including the taking of blood, are searches subject to the restrictions of the Fourth Amendment."). 14 In virtually

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every culture around the world, human blood possesses great symbolic power, and its spillage--whether in a drop or in a torrent--has carried enormous cultural significance. Throughout history, we have waged war, organized societies and religions, and created myths based upon the substance. See Dorothy Nelkin, Cultural Perspectives on Blood, in BLOOD FEUDS: AIDS, BLOOD, AND THE POLITICS OF MEDICAL DISASTER 273 (Eric A. Feldman & Ronald Bayer eds., 1999). The formal policy, pursuant to the DNA Act, that all those covered by the legislation must submit to the compulsory extraction of blood samples unquestionably calls for a "search" within the meaning of the Fourth Amendment.

The government contends, however, that compulsory blood extraction under the Act is permissible because the method of data collection employed--the taking of blood--is no more intrusive than fingerprinting. We reject this false analogy. 15

First, the elision of two very different kinds of evidence obscures the constitutional difference...

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