Boroian v. Mueller

• Decision Date: 12 August 2010
• Docket Number: No. 09-1630.,09-1630.
• Citation: 616 F.3d 60
• Parties: Martin BOROIAN, Plaintiff, Appellant, v. Robert S. MUELLER, III, Director, Federal Bureau of Investigation; Carmen P. Wallace, United States Probation Officer, U.S. Probation Office, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

616 F.3d 60

Martin BOROIAN, Plaintiff, Appellant,

v.Robert S. MUELLER, III, Director, Federal Bureau of Investigation; Carmen P. Wallace, United States Probation Officer, U.S. Probation Office, Defendants, Appellees.

No. 09-1630.

United States Court of Appeals,First Circuit.

Heard June 10, 2010.

Decided Aug. 12, 2010.

COPYRIGHT MATERIAL OMITTED.

Judith H. Mizner, Assistant Federal Public Defender, Federal Defender Office, with whom Tamara Fisher was on brief, for appellant.

Charles W. Scarborough, Appellate Staff, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, Carmen M. Ortiz, United States Attorney, and Mark B. Stern, Appellate Staff, Civil Division, Department of Justice, were on brief, for appellee.

Before LIPEZ, HOWARD and THOMPSON, Circuit Judges.

LIPEZ, Circuit Judge.

In United States v. Weikert, 504 F.3d 1, 3 (1st Cir.2007), we rejected a supervised releasee's Fourth Amendment challenge to the statutory requirement that he submit a blood sample for purposes of creating a DNA profile and entering it into a centralized government database. Applying a totality of the circumstances test, we concluded that the extraction of a blood sample and creation of a DNA profile from an individual on supervised release were not unreasonable searches under the Fourth Amendment. In this case, appellant Martin Boroian poses a question left unanswered in Weikert. Although acknowledging that the government lawfully obtained his DNA sample and profile during his term of probation, Boroian challenges the government's retention and use of his DNA profile and sample now that he has successfully completed his term of probation. In particular, he contends that the government's retention and periodic matching of his DNA profile against other profiles in the database is an unreasonable Fourth Amendment search. He further argues that the analysis of his blood sample is an unreasonable search and contends, for the first time on appeal, that the retention of his blood sample is an unreasonable continuing seizure.

We conclude that the alleged present use of Boroian's DNA profile-that is, the retention and matching of his lawfully obtained profile against other profiles in the government database-does not constitute a search within the meaning of the Fourth Amendment. Boroian has not sufficiently alleged any other present or imminent uses of his DNA profile to support an argument that his profile is being subjected to a new search. We further conclude that he has failed to allege any present or imminent analysis of his DNA sample, thereby providing no factual basis for the argument that a future analysis of his sample would constitute a separate Fourth Amendment search. We do not address his continuing seizure challenge to the retention of his sample, deeming that argument waived. Accordingly, we affirm the dismissal of the complaint for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6).

I.

A. Statutory Framework

The DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub.L. No. 106-546, 114 Stat. 2726 (2000) (codified as amended in scattered sections of 10 U.S.C., 18 U.S.C., 28 U.S.C. and 42 U.S.C.), requires individuals who have been convicted of “a qualifying Federal offense” and who are incarcerated or on parole, probation, or supervised release to provide government authorities with a DNA sample. ¹ 42 U.S.C. § 14135a(a)(1)(B), (a)(2). Although the extracted DNA sample may be a “tissue, fluid, or other bodily sample,” see id. § 14135a(c)(1), it is typically a blood sample, see United States v. Kincade, 379 F.3d 813, 817 (9th Cir.2004) (en banc).

The DNA Act authorizes the government to use “such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.” 42 U.S.C. § 14135a(a)(4)(A). A probationer's refusal to comply with the DNA collection procedure is a violation of an express condition of probation, 18 U.S.C. § 3563(a)(9), and is a misdemeanor punishable by up to one year's imprisonment and a fine of up to $100,000, 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571, 3581.

Once collected, a qualified federal offender's sample is analyzed by the Federal Bureau of Investigation (FBI) to create a DNA profile. 42 U.S.C. § 14135a(b),(c)(2); Weikert, 504 F.3d at 3. The DNA profile is then loaded into the FBI's Combined DNA Index System (CODIS), a centralized system that includes offender profiles obtained through federal, state and territorial DNA collection programs, as well as forensic profiles drawn from crime scene evidence. 42 U.S.C. § 14132(a); Weikert, 504 F.3d at 3-4. ² CODIS is a three-tiered system linking databases maintained at the local, state, and national level. DNA Initiative, Levels of the Database, http:// www. dna. gov/ dna- databases/ levels (last visited Aug. 5, 2010). Profiles from the local and state databases, as well as profiles collected and analyzed by the FBI, are entered into the national database subject to the requirements of the DNA Act. Id.

CODIS enables law enforcement officials to check if a given profile matches other profiles contained in the national database. See Weikert, 504 F.3d at 4. As of June 2010, the national database contained over 8.4 million offender profiles and over 300,000 forensic profiles, and the FBI credited the system with producing more than 120,000 matches assisting in over 117,000 investigations. See Federal Bureau of Investigation, CODIS-NDIS Statistics, http:// www. fbi. gov/ hq/ lab/ codis/ clickmap. htm (last visited Aug. 5, 2010). Under the DNA Act, with limited exceptions, ³ the FBI retains qualified federal offenders' DNA profiles and DNA samples even after they have completed their term of probation or supervised release.

B. Factual and Procedural Background

On July 13, 2004, Boroian, a resident of Massachusetts, was convicted in the United States District Court for the District of Vermont of one count of making a false statement in violation of 18 U.S.C. § 1001(a)(2), a qualifying federal offense under the DNA Act. The court sentenced him to one year of probation and imposed a $100 special assessment. On June 8, 2005, about a month before Boroian's term of probation was to expire, the United States Probation Office for the District of Massachusetts ordered him to submit to the drawing of a blood sample for DNA analysis pursuant to the DNA Act.

Shortly before the end of his term of probation, Boroian filed a pro se complaint seeking an order directing defendants to withdraw their demand that he submit to DNA testing. However, not wishing to suffer the adverse consequences of failing to comply with the Probation Office order, he submitted on June 30, 2005, to collection of his DNA sample as required. He successfully completed his term of probation on July 12, 2005.

On March 11, 2008, Boroian, now represented by appointed counsel, filed an amended complaint alleging that under the DNA Act, his DNA profile and DNA sample would be “retained by the government in perpetuity” for the purpose of “facilitat[ing] ... the investigation and prosecution of past and future crimes.” He claimed that the government's retention and analysis of his DNA profile and sample after completion of his probation term, without reasonable suspicion of criminal activity, violated the Fourth Amendment's prohibition on unreasonable searches and seizures. He sought an order that his DNA profile be expunged and his DNA sample destroyed.

Defendants filed a motion to dismiss Boroian's complaint for failure to state a claim upon which relief could be granted, see Fed.R.Civ.P. 12(b)(6), and the district court granted the motion in a written order. As to Boroian's DNA profile, the court concluded that the government's retention and periodic accessing of his lawfully obtained DNA profile was not a new search within the meaning of the Fourth Amendment. As to his DNA sample, the court held that although a new analysis of the sample could constitute a separate search under the Fourth Amendment, Boroian's complaint contained no factual allegations of a present or imminent analysis of the sample. This timely appeal followed.

II.

We review the grant of a motion to dismiss de novo, accepting as true all well-pleaded facts in the complaint and making all reasonable inferences in the plaintiff's favor. Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir.2010). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”

Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although not equivalent to “a ‘probability requirement,’ ” the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

A. The Fourth Amendment and Weikert

The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” U.S. Const. amend. IV. A Fourth Amendment search occurs when the government infringes “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see also Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (explaining that “a Fourth Amendment search does not occur ... unless the individual manifested a subjective expectation of privacy in the object of the challenged search and society [is] willing to recognize that expectation as reasonable” (internal quotation marks omitted)).

In Weikert, we rejected a Fourth Amendment challenge to the collection and analysis of DNA samples...