The opinion of the court was delivered by: Judge Gregory G. Hollows
Defendant on or about January 12, 2007, in Shasta County, in the Eastern District of California, received and possessed on his computer, visual depictions of minors engaged in sexually explicit conduct which were produced and transported in interstate commerce, in violation of 18 U.S.C. § 2252(a)(4)(b). On January 8, 2009, an indictment and arrest warrant were issued. On January 23, 2009, defendant appeared in court for arraignment and entered a plea of not guilty. Defendant has no prior federal criminal record. The court ordered defendant released on a $25,000 unsecured bond and to obey pre-trial conditions. Defendant consented to all the pre-trial conditions except that he must provide a DNA sample. The court stayed the DNA collection for both parties to brief the issue. Defendant challenges the constitutionality of amendments to the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), which require DNA to be provided for pre-trial release and the DNA Fingerprinting Act of 2005*fn1, 42 U.S.C. § 14135a,*fn2 which requires DNA testing of all arrestees.*fn3
This case, involving required DNA "identification" testing of non-convicted persons, is one of first impression for the federal courts. The court holds that after a judicial or grand jury determination of probable cause has been made for felony criminal charges against a defendant, no Fourth Amendment or other Constitutional violation is caused by a universal requirement that a charged defendant undergo a "swab test," or blood test when necessary, for the purposes of DNA analysis to be used solely for criminal law enforcement, identification purposes.
The Bail Reform Act, 18 U.SC. § 3142(b) and (c)(1)(A), provide:
(b) Release on personal recognizance or unsecured appearance bond. (1) The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a), unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.
(c) Release on conditions. (1) If the judicial officer determines that the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person--(A) subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a).
An amendment to the DNA Fingerprinting Act, 42 U.S.C. § 14135a, that took effect in January 2006, provides, "The Attorney General may, as prescribed by the Attorney General in regulation, collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States." Id.
After a DNA sample is collected, it is provided to the Director of the Federal Bureau of Investigation (FBI). 42 U.S.C. § 14135a(b). The FBI Director then analyzes the DNA sample and includes the results in the Combined DNA Index System (CODIS), a FBI-created, national database that catalogues DNA profiles from numerous sources, including federal and state convicts, persons who have been charged in an indictment or information with a crime, DNA samples recovered from crime scenes, and from relatives of missing persons. 42 U.S.C. § 14132(a). CODIS "allows State and local forensics laboratories to exchange and compare DNA profiles electronically in an attempt to link evidence from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the system." H.R. Rep. 106-900(I), at 8 (2000).
The Attorney General issued regulations regarding the practical implementation of taking DNA samples from an arrestee. Rules and Regulations, Department of Justice, 28 CFR Part 28, 73 FR 74932, 2008 WL 5155929. The regulations provide:
The rule allows DNA samples generally to be collected, along with a subject's fingerprints, as part of the identification process. As discussed above, the uses of DNA for law enforcement identification purposes are similar in general character to the uses of fingerprints, and these uses will be greatly enhanced as a practical matter if DNA is collected regularly in addition to fingerprints. Law enforcement agencies routinely collect fingerprints from individuals whom they arrest. See Anderson, 650 S.E.2d at 706 ("Fingerprinting an arrested suspect has long been considered a part of the routine booking process."); Kincade, 379 F.3d at 836 n.31 ("[E]veryday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence." (citation and quotation omitted)); Jones, 962 F.2d at 306 (noting "universal approbation of 'booking' procedures whether or not the proof of a particular suspect's crime will involve the use of fingerprint identification").
The Attorney General regulations also indicate that certain situations exist where collecting DNA will not be appropriate.
The Department recognizes, however, that there may be some circumstances in which agencies collect fingerprints but in which the collection of DNA samples would not be warranted or feasible. For example, in relation to non-arrestees, DHS will not be required to collect DNA samples from aliens who are fingerprinted in processing for lawful admission to the United States, or from aliens from whom DNA-sample collection is otherwise not feasible because of operational exigencies or resource limitations. If any agency believes that such circumstances exist within its sphere of operations, the agency should bring these circumstances to the attention of the Department, and exceptions to the DNA-sample collection requirement may be allowed with the approval of the Attorney General.
It is undisputed that the court sought to impose the DNA testing without engaging in a fact specific inquiry regarding if this condition was required to secure defendant's appearance in the future. It is also undisputed that the government seeks to impose DNA testing without obtaining a warrant. Defendant contends that the imposition of DNA testing to arrestees and pre-trial releasees is unconstitutional under the Fourth Amendment. The first argument posed involves the standard upon which the Fourth Amendment issue should be judged: "totality of the circumstances," or "special needs."
Pursuant to the Fourth Amendment,"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV. "The touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' " Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868 (1968)). The Ninth Circuit has held, "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." United States v. Kincade, 379 F.3d 813, 821 n. 15 (9th Cir. 2004) (en banc).
However, every circuit to consider a Fourth Amendment challenge to the Justice for All Act of 2004, that extended DNA sampling to all felony convictions, has reached the same conclusion: collecting DNA from nonviolent felons as authorized by the Act does not violate the Fourth Amendment.
The majority of circuits adopt a "totality of the circumstances" framework. In United States v. Kincade, 379 F.3d 813 at 839-840, the Ninth Circuit held that mandatory blood draws for DNA testing of violent felons on supervised release does not violate the Fourth Amendment. In Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), decided earlier, the Ninth Circuit held that an Oregon statute requiring convicted murderers and sex offenders to submit to blood testing for DNA analysis did not violate the Fourth Amendment. Rise, 59 F.3d at 1562. In Kincade, the Ninth Circuit reaffirmed Rise and held that "its reliance on a totality of the circumstances analysis to uphold compulsory DNA profiling of convicted offenders both comports with the Supreme Court's recent precedents and resolves this appeal in concert with the requirements of the Fourth Amendment." Kincade, 379 F.3d at 832. Applying the totality of the circumstances test, in U.S. v. Kriesel, 508 F.3d 941 (9th Cir. 2007), the Ninth Circuit held that collecting DNA samples from nonviolent felons on supervised (conditioned) release does not violate the Fourth Amendment. See also, United States v. Weikert, 504 F.3d 1, 9-11 (1st Cir. 2007); Banks v. United States, 490 F.3d 1178, 1184 (10th Cir. 2007); United States v. Kraklio, 451 F.3d 922, 924 (8th Cir. 2006). The reasonableness of a search using the totality of the circumstances, "is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 2197 (2006).
In contrast, the Second and Seventh Circuits rely on the "special needs test." United States v. Amerson, 483 F.3d 73, 78 (2d Cir.2007); United States v. Hook, 471 F.3d 766, 772-74 (7th Cir. 2006). The Sixth Circuit has upheld the 2004 Act under both tests. United States v. Conley, 453 F.3d 674, 677-81 (6th Cir. 2006).
Defendant argues that the situation here involving non-convicted, but charged defendants is different. Therefore, the court must use the "special needs" test because unlike the Kincade line of cases, defendant has not been convicted and has a presumption of innocence. Defendant's Brief at 15. Defendant also contends that a general law enforcement need to take his DNA sample, the only reason that can apply here according to defendant, will not qualify as a "special need." As a result, defendant concludes the sampling is unconstitutional. Defendant's Brief at 15. Defendant points to the Supreme Court cases of Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281 (2001) and City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447 (2000). In Ferguson, the Supreme Court held that the use of a hospital's diagnostic test to obtain evidence of drug use of pregnant patients for law ...