Friedman v. Boucher

• Decision Date: 23 June 2009
• Docket Number: No. 05-15675.,05-15675.
• Citation: 580 F.3d 847
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Kenneth A. FRIEDMAN, Plaintiff-Appellant, v. Dolphus BOUCHER; Elissa Luzaich, Defendants-Appellees.

580 F.3d 847

Kenneth A. FRIEDMAN, Plaintiff-Appellant, v. Dolphus BOUCHER; Elissa Luzaich, Defendants-Appellees.

No. 05-15675.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 19, 2007.

Filed June 23, 2009.

Amended September 8, 2009.

Tyler A. Baker, Saundra Riley, Kimberly I. Culp, and Julie A. Nokleberg; Fenwick & West LLP; Mountain View, CA; for the appellant.

Robert J. Gower; Deputy District Attorney; Las Vegas, NV; for the appellees.

Appeal from the United States District Court for the District of Nevada, James C. Mahan, District Judge, Presiding. D.C. No. CV-04-00286-JCM.

Before JANE R. ROTH,^* SIDNEY R. THOMAS, and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER

The opinion filed on June 23, 2009, is hereby amended by (1) deleting the first full paragraph found in the slip opinion at page 7613 (lines 7 through 24); (2) inserting "Kennedy v. Los Angeles Police Dep't, 901 F.2d 702 (9th Cir.1990) (impliedly overruled on other grounds by Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam))" in the slip opinion on page 7613 after the word "Kennedy" on line 27, (3) deleting the material "901 F.2d" on page 7613 on line 29, and inserting "Id." in lieu thereof; and (4) deleting "Ward, 791 F.2d at 1333; Giles, 746 F.2d at 615" on page 7617, line 22.

With the amendment, Judges Thomas and Roth have voted to deny the petition for panel rehearing. Judge Thomas has voted to deny the petition for rehearing en banc and Judge Roth so recommends. Judge Callahan has voted to grant the petition for panel rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed. R.App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are rejected.

No further petitions for rehearing will be entertained.

OPINION

THOMAS, Circuit Judge:

Las Vegas Metropolitan Police Detective Dolphus Boucher, with the approval of Clark County Deputy District Attorney Elissa Luzaich, forcefully extracted a DNA sample from Kenneth Friedman. The officer did not have a warrant or a court order authorizing the taking of the sample, nor was Friedman under any suspicion of a crime for which a DNA sample might be justified. The extraction occurred simply because the deputy district attorney wanted to put Friedman's DNA sample in a cold case data bank. Friedman alleges that the forcible extraction occurred after he was shackled and chained to a metal bar.

Friedman brought suit against Boucher and Luzaich ("Defendants") under 42 U.S.C. § 1983 on the ground that they violated his Fourth Amendment rights by taking the sample. The district court held that Boucher and Luzaich are entitled to qualified immunity and granted Defendants' motion to dismiss. Because the forcible taking of the DNA sample under these circumstances violated Friedman's clearly established Fourth Amendment rights, we reverse.

I

In 1980, Kenneth Friedman pled guilty to sexual intercourse without consent in the District Court of the Fourth Judicial District of the State of Montana. In 2001 Friedman completed his sentence and was released from Montana's supervision. After his release he was not a parolee, probationer, or otherwise under the supervision of the State of Montana.¹ He then moved to Las Vegas, Nevada.

In March 2003, Detective Boucher asked Friedman to provide a DNA sample. Friedman was at the time incarcerated in Clark County Jail as a pre-trial detainee pending the prosecution of unrelated charges. Boucher had no warrant, no court order, no individualized suspicion, had not articulated an offense for which a DNA sample was required or justified, and admitted as much to Friedman. He simply wanted the sample as an aid to solve cold cases.

Friedman declined to volunteer the DNA sample and asked to speak with his attorney. Boucher refused to allow Friedman to contact his attorney and told him that Deputy District Attorney Luzaich had authorized Boucher to obtain a DNA sample from Friedman, by force if necessary. Another detective told Friedman, "we can force you, we're authorized and you can get hurt pretty bad." Boucher and the other detective also threatened to call in other officers to beat him. Friedman alleges that, during the course of these interactions, he was sitting on a bench in chains and shackles and chained to a metal bar on the bench.

After Friedman repeatedly refused to voluntarily provide a DNA sample, Boucher forced Friedman's jaw open and forcefully took a buccal swab² from the inside of Friedman's mouth. This search was not related to the Nevada charges then-pending against Friedman. Indeed, Luzaich later represented to a Nevada Justice Court that she had ordered the search to use Friedman's DNA in the investigation of cold cases. Friedman was not a suspect in any of the cases. In fact, not only was Friedman not an active suspect in any cold case, the record does not suggest that Friedman's DNA was ever actually used in the resolution of any cold case.

Friedman filed suit in federal district court, in the District of Nevada, on March 10, 2004, alleging that Boucher and Luzaich's forcible taking of his DNA violated his Fourth Amendment right to be free from unreasonable searches. Boucher and Luzaich moved to dismiss the complaint, arguing that they were entitled to qualified immunity.

The district court initially denied Defendants' Motion to Dismiss. Shortly thereafter, we decided United States v. Kincade, 379 F.3d 813 (9th Cir.2004) (en banc), which upheld the constitutionality of compulsory DNA profiling of certain conditionally-released federal offenders under the DNA Analysis Backlog Elimination Act of 2000., Pub.L. No. 106-546, 114 Stat. 2726 (2000). The district court then ordered Friedman to show cause why Boucher and Luzaich were not entitled to qualified immunity, in light of Kincade. On March 25, 2005, relying on Kincade and the exhibits attached to Defendants' Motion to Dismiss, the district court granted summary judgment³ in favor of Defendants on the ground that Defendants were entitled to qualified immunity. This appeal followed.

II

We review de novo a district court's decision to grant summary judgment on the ground of qualified immunity. Motley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). In reviewing a district court's grant of summary judgment we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Olsen, 363 F.3d at 922.

To determine whether a government employee is entitled to qualified immunity, we use a two-part test. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We must determine whether, viewed in the light most favorable to the plaintiff, the government employee violated the plaintiff's constitutional rights. Id. We must also determine whether the rights were clearly established at the time of the violation. Id.; Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 818-22, 172 L.Ed.2d 565 (2009).

III

We turn first to the question of whether the warrantless, suspicionless, forcible taking of Friedman's DNA violated his constitutional rights. There is no question that the buccal swab constituted a search under the Fourth Amendment. The Supreme Court has held that invasions of the body are searches and, thus, are entitled to the protections of the Fourth Amendment. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (breathalyzer and urine sample); Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (finger nail scrapings); Schmerber v. California, 384 U.S. 757, 767-71, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood). We have held, similarly, that the Fourth Amendment protects against "all searches that invade the interior of the body—whether by a needle that punctures the skin or a visual intrusion into a body cavity." Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449 (9th Cir.1991); see also Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir.2005) (swabbing the inside of mouth for saliva is a search); Schlicher v. Peters, 103 F.3d 940, 942-43 (10th Cir. 1996) (collection of saliva is a search). As we put it in United States v. Kriesel: "The compulsory extraction of blood for DNA profiling unquestionably implicates the right to personal security embodied in the Fourth Amendment, and thus constitutes a `search' within the meaning of the Constitution." 508 F.3d 941, 946 (9th Cir.2007) (quoting Kincade, 379 F.3d at 821).

There is also no dispute that the search was conducted without a warrant. "A warrantless search is unconstitutional unless the government demonstrates that it `fall[s] within certain established and well-defined exceptions to the warrant clause.'" United States v. Brown, 563 F.3d 410, 414-15(9th Cir.2009) (quoting United States v. Murphy, 516 F.3d 1117, 1120 (9th Cir.2008) (quoting United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir.1988))).

Thus, unless the government can establish that the warrantless, suspicionless, forcible taking of a buccal swap satisfies one of the exceptions to the warrant requirement, we must hold the search to be unconstitutional.

Defendants offer three arguments in urging that an exception to the warrant requirement applies in this case: (1) the special needs exception to the warrant requirement; (2) a Montana statute authorized the search; and (3) the search was "reasonable."

A

The government was not entitled to conduct the warrantless, suspicionless search based on the "special needs" exception. The "special needs" exception is "an exception to the general rule that a search must be based on individualized suspicion of wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, 54, 121...