379 F.3d 813 (9th Cir. 2004), 02-50380, United States v. Kincade

Docket Nº:02-50380.
Citation:379 F.3d 813
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Cameron KINCADE, Defendant-Appellant.
Case Date:August 18, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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379 F.3d 813 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Thomas Cameron KINCADE, Defendant-Appellant.

No. 02-50380.

United States Court of Appeals, Ninth Circuit

August 18, 2004

Argued and Submitted March 23, 2004.

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Maria E. Stratton, Monica Knox, and Michael Tanaka, Federal Public Defender, Los Angeles, CA, for the appellant.

Debra W. Yang, Steven D. Clymer, Ronald L. Cheng, Jacqueline Chooljian, John B. Owens, U.S. Attorney's Office, Los Angeles, CA, and Jonathan L. Marcus, U.S. Department of Justice, Washington, D.C., 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 Lockyer, Robert R. Anderson, Jo Graves, Gerald A. Engler, George F. Hindall, III, and Enid A. Camps, California Office of the Attorney General, San Francisco, CA, Gregg D. Renkes, Alaska Department of Law, Juneau, AK, Mark J. Bennett, Hawaii Department of the Attorney General, Idaho Office of Attorney General, Mike McGrath, Montana Department of Justice, Helena, MT, Hardy Myers, Oregon Department of Justice, Salem, OR, Christine O. Gregoire, Washington Office of the Attorney General, Olympia, WA, for amici curiae States of California, Alaska, Hawaii, Idaho, Montana, Oregon, and Washington, in support of the appellee.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding.


O'SCANNLAIN, Circuit Judge:

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.



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 crimes1 and who are

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incarcerated, or on parole, probation, or supervised release2 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(c)(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 Probation Joins the World of DNA Collection, 66 F. Probation 30, 31 (2002). Failure "to cooperate in the collection of that sample [is] ... a class A misdemeanor," punishable by up to one year's imprisonment and a fine of as much as $100,000. 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571 & 3581.3

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Once collected by a phlebotomist, qualified federal offenders' blood samples are turned over to the Bureau for DNA analysis-the identification and recording of an individual's "genetic fingerprint."4 Through the use of short tandem repeat technology ("STR"), the Bureau analyzes the presence of various alleles5 located at 13 markers (or loci) on DNA present in the specimen. These STR loci are each found on so-called "junk DNA"--that is, non-genic stretches of DNA not presently recognized as being responsible for trait coding6--and "were purposely selected because they are not associated with any known physical or medical characteristics." H.R.Rep. No. 106-900(I) at *27. Because there are observed group variances in the representation of various alleles at the STR loci, however, DNA profiles derived by STR may yield probabilistic evidence of the contributor's race or sex. Future of Forensic DNA Testing 35, 39-42.7 Even so, DNA profiles generated by STR are highly individuated: Due to the substantial

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number of alleles present at each of the 13 STR loci (between 7 and 20, see Future of Forensic DNA Testing 41) and wide-spread variances in their representation among human beings, the chance that two randomly selected individuals will share the same profile are infinitesimal--as are the chances that a person randomly selected from the population at large will present the same DNA profile as that drawn from crime-scene evidence. See Future of Forensic DNA Testing 19-22, 39-42.

Once STR has been used to produce an individual's DNA profile, the resulting record8 is loaded into the Bureau's Combined DNA Index System ("CODIS")--a massive centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons. 42 U.S.C. §§ 14132(a)-(b).9 As of March 2004, CODIS contained DNA profiles drawn from 1,641,076 offenders and 78,475 crime scenes. Fed. Bureau of Investigation, NDIS Statistics, available at http://www.fbi.gov/hq/lab/codis/clickmap.htm (last visited May 11, 2004). Of those profiles, 298,767 offender records and 10,270 forensic samples originated in the states comprising the Ninth Circuit. See id.

CODIS can be used in two different ways. First, law enforcement can match one forensic crime scene sample to another forensic crime scene sample, thereby allowing officers to connect unsolved crimes through a common perpetrator. Second, and of perhaps greater significance, CODIS enables officials to match evidence obtained at the scene of a crime to a particular offender's profile. In this latter capacity, CODIS serves as a potent tool for monitoring the criminal activity of

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known offenders. Through March 2004, Bureau data indicated that CODIS has aided some 16,160 investigations nationwide--1,710 within the Ninth Circuit. Fed. Bureau of Investigation, Investigations Aided, available at http://www.fbi.gov/hq/lab/codis/aidedmap.htm (last visited May 11, 2004).


On July 20, 1993, driven by escalating personal and financial troubles, decorated Navy seaman Thomas Cameron Kincade robbed a bank using a firearm in violation of 18 U.S.C. §§ 2113(a) & (d) and 18 U.S.C. § 924(c)(1). He soon pleaded guilty to those charges and was sentenced to 97 months' imprisonment, followed by three years' supervised release. Among others, terms of his release required him to participate in an outpatient substance abuse program; not to commit another federal, state, or local crime; and to follow the instructions of his probation officer.

Shortly after his August 2000 release from federal prison, Kincade submitted a urine sample which tested positive for cocaine. A warrant was issued for his arrest in early October, and on November 13, the district court reinstated Kincade's original term of supervision. In April 2001, Kincade admitted relapsing into cocaine abuse and requested placement in a residential drug treatment program. No action was taken on his request, and on May 21 and May 28, 2001, Kincade again submitted cocaine-positive urine samples. As a result, the district court modified the terms of Kincade's supervised release on June 7, 2001 to include treatment in a residential drug program. Thereafter, Kincade appears to have begun making progress in reforming his life.10

On March 25, 2002, Kincade's probation officer asked him to submit a blood sample pursuant to the DNA Act.11 He refused, eventually explaining that his objections were purely a matter of personal preference--in his words,"not a religious conviction."12 Kincade's probation officer suggested he contact his attorney for advice, and also explained that if he changed his mind he could submit a blood sample on April 16, 2002. On April 4, 2002, Kincade notified the Probation Office of his intention not to comply and, as promised, he refused to appear for DNA profiling on April 16. On May 7, 2002, Kincade's probation officer again contacted him in an effort to determine whether there was some way they could work through the issue. Kincade indicated that he would comply with the requirements of the DNA Act only if threatened with imposition of a significant term of incarceration. Lacking any alternative, Kincade's probation officer informed the district court that Kincade

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had refused to submit the blood sample required by the DNA Act. He also recommended revocation of Kincade's supervised release, and re-incarceration.

In briefing to the district court prior to a scheduled revocation hearing, Kincade challenged the constitutionality of the DNA Act on grounds that it violated the Ex Post Facto Clause, the Fourth Amendment, and separation of powers principles embodied in Article III and the Due Process Clause.13 On July 15, 2002, Kincade appeared at a revocation hearing before U.S. District Judge Dickran Tevrizian. After stating on the record that he was inclined to hold the DNA Act constitutional, Judge Tevrizian offered Kincade another opportunity to submit to DNA profiling in lieu of proceeding with the revocation hearing. Kincade consulted with counsel, who quickly informed...

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