Bill v. Brewer

• Decision Date: 31 August 2015
• Docket Number: No. 13–15844.,13–15844.
• Citation: 799 F.3d 1295
• Parties: Daniel BILL; Bryan Hanania; Michael Malpass, Plaintiffs–Appellants, v. Warren BREWER; Heather Polombo, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

799 F.3d 1295

Daniel BILL; Bryan Hanania; Michael Malpass, Plaintiffs–Appellants

v.Warren BREWER; Heather Polombo, Defendants–Appellees.

No. 13–15844.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2015.

Filed Aug. 31, 2015.

Paul J. Orfanedes, Michael Bekesha (argued), Judicial Watch, Inc., Washington, D.C., for Plaintiffs–Appellants.

Gary Verburg, City Attorney, Robert A. Hyde (argued), Assistant City Attorney, Office of the City Attorney, Phoenix, AZ, for Defendants–Appellees.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:12–cv–02613–SRB.

Before: BARRY G. SILVERMAN, RONALD M. GOULD, and ANDREW D. HURWITZ, Circuit Judges.

OPINION

HURWITZ, Circuit Judge:

In this 42 U.S.C. § 1983 action, three Phoenix police officers allege that two other officers violated the Fourth and Fourteenth Amendments when, pursuant to a state court order, they obtained DNA samples from the plaintiffs to exclude them as contributors of DNA at a crime scene. The district court dismissed the complaint, and we affirm.

I.

A.

On October 18, 2010, Phoenix Police Sergeant Sean Drenth died from a gunshot wound

to his head. His body was found in the northwest corner of an empty lot near the Arizona State Capitol; a shotgun was across his chest and a second weapon by his ankle. Sergeant Drenth's patrol car was in the center of the lot, and his service weapon was found just beyond the south side of the lot. More than 300 public safety personnel, the chief of police, and the mayor quickly converged on the scene. Roughly 100 people entered the area where Sergeant Drenth's body was discovered, including the three plaintiffs, who were assigned to canine search teams.

The police investigators assigned to the case initially attempted to determine whether Sergeant Drenth's death was a homicide staged to look like a suicide or a suicide staged to look like a homicide. Detective Warren Brewer led the investigation with the assistance of Detective Heather Polombo. That investigation revealed unknown male DNA profiles on Drenth's patrol car and weapons. Over the ensuing months, Polombo received consent to collect DNA samples from more than 100 individuals who had entered the crime scene in order to eliminate them as contributors of the unknown DNA. Each of the approximately fifty Phoenix Police Department officers who entered the crime scene consented to give samples, with the exception of the three plaintiffs and two others.

Polombo met with the five non-consenting officers in April 2011. She told them that they had been excluded as suspects in any crime because “their portable radios and the mobile digital communicators in their vehicles confirmed their locations on the night of” Drenth's death, and she again requested DNA samples to exclude them as contributors of the questioned DNA. Polombo provided each officer with a police department “DNA Collection Fact Sheet—Drenth Investigation” (the “DNA Memo”), explaining that their DNA samples would be used only for this limited purpose, and would “not be entered into [the Combined DNA Index System (“CODIS”) ]”¹ or used to identify DNA found at future crime scenes.

B.

The five officers nonetheless continued to refuse to provide DNA samples. Brewer and Polombo then sought court orders pursuant to Arizona Revised Statutes § 13–3905² to obtain buccal swabs—a Q- tip swab along the inside of the five officers' cheeks—for DNA testing. In support of the applications for the orders, Brewer submitted affidavits describing the five officers' presence at the crime scene, noting their “potential to [have] inadvertently deposit[ed] their DNA on the collected evidence,” and avowing that the DNA samples “may contribute to the identification of the individual who committed” the homicide.

A superior court judge issued the orders, and buccal swabs were taken from the five officers. The samples were analyzed and the results included in investigative reports along with the results of analysis of swabs taken from others at the scene. The swabs are currently impounded by the Department pursuant to Arizona Revised Statutes § 13–4221.³ The Department has repeatedly stated that none of the officers is suspected of having committed any crime.

C.

On December 7, 2012, plaintiffs filed this 42 U.S.C. § 1983 action, claiming that Brewer and Polombo violated the Fourth Amendment by obtaining, analyzing, and retaining plaintiffs' DNA. The complaint sought (1) nominal damages of $1.00 for each plaintiff; (2) a declaration that the seizure of the DNA was unlawful; and (3) injunctive relief precluding defendants “from continuing to maintain possession, custody, or control” of the DNA samples and ordering them to destroy “samples and any analyses and reports of Plaintiffs' DNA samples.”

The district court dismissed the complaint for failure to state a claim. This appeal timely followed. We have jurisdiction under 28 U.S.C. § 1291. “We review de novo the district court's granting of a motion to dismiss for failure to state a claim,” Weiland v. Am. Airlines, Inc., 778 F.3d 1112, 1114 (9th Cir.2015), and “accept as true the factual allegations in [the] complaint,” Ashcroft v. al–Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2079, 179 L.Ed.2d 1149 (2011). “We may affirm the district court on any basis supported by the record.” Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1114 n. 1 (9th Cir.2014).

II.

The Supreme Court has held that “using a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a search” under the Fourth Amendment. Maryland v. King, ––– U.S. ––––, 133 S.Ct. 1958, 1968–69, 186 L.Ed.2d 1 (2013) ; see also Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 1565, 185 L.Ed.2d 696 (2013) (“[A]ny compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.”). Thus, the issue before us is whether the defendants “respected relevant Fourth Amendment standards” in collecting plaintiffs' DNA. Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Plaintiffs' briefs argue that because defendants “fail[ed] to obtain search warrants before taking DNA samples” and had no “individualized suspicion that Plaintiffs had committed criminal wrongdoing,” collection of their DNA violated the Fourth Amendment because it does not fall within any of the “established exceptions” to the warrant requirement.⁴ We disagree. The superior court orders authorizing the collection of the DNA samples fully satisfied the warrant requirement of the Fourth Amendment.

A.

“Ordinarily, the reasonableness of a search depends on governmental compliance with the Warrant Clause, which requires authorities to demonstrate probable cause to a neutral magistrate and thereby convince him to provide formal authorization to proceed with a search by issuance of a particularized warrant.” United States v. Kincade, 379 F.3d 813, 822 (9th Cir.2004) (en banc). The orders issued by the superior court pursuant to Arizona Revised Statutes § 13–3905 were not formally denominated as search warrants. Moreover, the state statute requires a showing of only reasonable cause “for belief that a felony has been committed” to support a detention order, id., § 13–3905(A)(1) —something the Arizona Supreme Court has defined as “less than probable cause,” State v. Rodriguez, 186 Ariz. 240, 921 P.2d 643, 651 (1996) —and specifies no particular quantum of suspicion that the evidence sought “may contribute to the identification of the individual who committed such offense,” § 13–3905(A)(2).

However, when considering Fourth Amendment challenges to evidence seized pursuant to § 13–3905 orders, the Arizona Supreme Court has described such orders as “warrants.” State v. Jones, 203 Ariz. 1, 49 P.3d 273, 280 (2002). That court has also stated that “probable cause is the standard that must be met” for a § 13–3905 order involving a “bodily invasion” constituting “a search under the Fourth Amendment.” Id. at 281 ; see also State v. Wedding, 171 Ariz. 399, 831 P.2d 398, 404 (Ct.App.1992) (“The affidavit [supporting a § 13–3905 order for saliva and blood samples] clearly supports the ... finding that there was probable cause to search and seize the defendant at the time of the detention.”). Thus, we analyze the § 13–3905 orders in this case, notwithstanding the more limited language of the statute, for compliance with the Warrant Clause of the Fourth Amendment.

The “precise and clear” words of the Fourth Amendment “require only three things” for a valid search warrant:

First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense. Finally, warrants must particularly describe the things to be seized, as well as the place to be searched.

Dalia v. United States, 441 U.S. 238, 255, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) (citations and internal quotation marks omitted). There can be no contest that the orders here satisfied the first and third requirements: they were issued by a superior court judge and described a “saliva sample” to be seized “by mouth swab” from the person of the plaintiffs. Whether the orders satisfy the Warrant Clause therefore turns on whether the submitted affidavits demonstrated probable cause to believe that the evidence sought would aid in an apprehension or conviction for a particular offense.

To be sure, the orders here did not seek to obtain evidence that the plaintiffs committed a crime. But contrary to plaintiffs' intimations, “[t]he critical element in a reasonable search is not that the owner of the property,” or in this case the person, to be searched “is suspected of crime.” Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). Rather, “probable cause to search ......