The opinion of the court was delivered by: Edward J. Garcia, Judge United States District Court
ORDER DENYING MOTION TO AMEND RELEASE ORDER AND UPHOLDING DNA TESTING CONDITION
This matter is before the court on defendant's motion to amend the conditions of his pre-trial release. The motion was filed pursuant to 18 U.S.C. § 3145(a)(2) and seeks to have the court strike a condition requiring him to submit to DNA testing. After reviewing the record, the documents filed in connection with the motion, and the law, the court has determined that oral argument will not be of material assistance. Accordingly, the hearing set for July 31, 2009 is VACATED. For the reasons set forth below, the motion to amend is DENIED.
Defendant was indicted January 8, 2009, on one count of possession, and one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (a)(2). On January 23, 2009, following his initial appearance and arraignment before the magistrate judge, defendant was released on bond, subject to various conditions, one of which required him to submit a DNA sample. Defendant sought to stay imposition of the condition while seeking review before the magistrate judge. The request for a stay was granted and the parties submitted briefs on the issue of the DNA testing condition. On May 27, 2009, the magistrate judge issued his order rejecting the defendant's constitutional challenges and upholding the condition of DNA collection. Defendant filed an "appeal" of that order,*fn1 as well as a request for oral argument, and a request for an extension of the stay. The magistrate judge extended the stay pending further order of the district court.
The condition at issue was imposed pursuant to 18 U.S.C. §§ 3142(b) and (c)(1)(A), statutory amendments to the Bail Reform Act which make cooperation in DNA collection a mandatory condition of pretrial release. Defendant argues that the mandatory extraction of DNA from one who has not been convicted of an offense, violates his fourth, fifth and eighth amendment rights and, in addition, is an unconstitutional extension of federal power and violates the doctrine of separation of powers. The issues were well-briefed before the magistrate judge and the parties have submitted the matter to the district court on the basis of those briefs. Although defendant has requested oral argument, the court does not believe it will be of any benefit, given the purely legal nature of the issue and the exhaustive nature of the briefs filed to date.
Having conducted a de novo review*fn2, the court finds the magistrate judge's findings and analysis exhaustive, well-reasoned and supported by the record and the law. Further, the court concurs with and adopts his conclusion:
[A]fter 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. Order, 2:5-10, filed May 27, 2009.*fn3
Defendant's motion to amend the conditions of his pre-trial release to strike the condition of DNA testing is DENIED. The stay of imposition of that condition is lifted and the matter is referred back to Magistrate Judge Hollows for issuance of a modified order of release adding the afore-mentioned special condition of DNA testing.