Appeal from the United States District Court for the Eastern District of California. Edward J. Garcia, District Judge, Presiding. D.C. No. 2:09-cr-00015-EJG-1.
The opinion of the court was delivered by: Callahan, Circuit Judge
Argued and Submitted December 7, 2009 -- San Francisco, California.
Before: Mary M. Schroeder and Consuelo M. Callahan, Circuit Judges, and Carlos F. Lucero,*fn1 Circuit Judge.
Opinion by Judge Callahan; Concurrence by Judge Lucero; Dissent by Judge Schroeder
Jerry Arbert Pool challenges the district court's implementation of 18 U.S.C. § 3142(b) and (c)(1)(A), requiring him to give a DNA sample as a condition of his pre-trial release.
Applying the totality of the circumstances test, we affirm the district court. We hold that where a court has determined that there is probable cause to believe that the defendant committed a felony, the government's interest in definitively determining the defendant's identity outweighs the defendant's privacy interest in giving a DNA sample as a condition of pre-trial release in cases in which the government's use of the DNA is limited to identification purposes and there is no indication that the government intends to use the information for any other purpose.
On January 8, 2009, Pool was charged in the Eastern District of California by indictment with possessing and receiving child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2253. Pool was arrested and brought to court for his arraignment on January 23, 2009. Pool had no prior criminal record and he entered a plea of not guilty. The magistrate judge ordered Pool released on a $25,000 unsecured bond on the condition that he obey pre-trial conditions. Pool consented to all pre-trial conditions except that he provide a DNA sample.
The court stayed the DNA collection to allow the parties to brief the issue. Pool challenges the constitutionality of amendments to the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), which require the provision of a DNA sample as a condition for pre-trial release.*fn2 This condition applies to most, if not all, federal criminal charges. See 42 U.S.C. § 14135(a)(1)(A).*fn3
The government defines DNA as "a double-helix shaped nucleic acid held together by hydrogen bonds and composed of base pairings of Adenine and Thymine, and Cytosine and Guanine, which repeat along the double-helix at different regions (referred to as short-tandem-repeat loci, or STR loci)." In United States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc), we stated:
Through the use of short tandem repeat technology ("STR"), the Bureau analyzes the presence of various alleles located at 13 markers (or loci) on DNA present in the specimen. These STR loci are each found on so-called "junk DNA" - that is, non-genic stretches of DNA not presently recognized as being responsible for trait coding - and "were purposely selected because they are not associated with any known physical or medical characteristics." H.R. Rep. No. 106-900(I) at *27. Because there are observed group variances in the representation of various alleles at the STR loci, however, DNA profiles derived by STR may yield probabilistic evidence of the contributor's race or sex. Future of Forensic DNA Testing 35, 39-42. Even so, DNA profiles generated by STR are highly individuated: Due to the substantial number of alleles present at each of the 13 STR loci (between 7 and 20, see Future of Forensic DNA Testing 41) and widespread variances in their representation among human beings, the chance that two randomly selected individuals will share the same profile are infinitesimal - as are the chances that a person randomly selected from the population at large will present the same DNA profile as that drawn from crime-scene evidence. See Future of Forensic DNA Testing 19-22, 39-42.
Id. at 818-19 (footnotes omitted). We further recognized, however, that "[r]ecent studies have begun to question the notion that junk DNA does not contain useful genetic programming material." Id. at 818 n.6.
Once collected, a DNA sample is turned over to the Director of the Federal Bureau of Investigation ("FBI"). 42 U.S.C. § 14135a(b). The FBI analyzes the DNA sample and includes the results in the Combined DNA Index System ("CODIS"), an FBI-created national database that catalogues DNA profiles from numerous sources. 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 has issued regulations concerning the taking of DNA samples from arrestees.
28 CFR Part 28, 73 FR 74932, 2008 WL 5155929. The regulations allow "DNA samples generally to be collected, along with a subject's fingerprints, as part of the identification process," but they need not be if the collection of DNA samples "would not be warranted or feasible."*fn4 73 FR at 74934.
Pool objected to giving a DNA sample primarily on the ground that doing so violated his rights under the Fourth Amendment. He also challenged the law as unconstitutional under the Eighth Amendment, and the Due Process Clause and violative of the separation of powers doctrine.
Citing our opinion in Kincade, 379 F.3d at 839-40, the magistrate applied the "totality of the circumstances" framework to consider the constitutionality of the statute. He determined:
The judicial or grand jury finding of probable cause within a criminal proceeding is a watershed event which should be viewed differently from mere prejudicial involvement gathering of evidence. After such a judicial finding, a defendant's liberty may be greatly restricted - even denied. As part of his pre-trial release, defendant may be deprived of his very liberty; he can be subject to electronic monitoring; he may be ordered to obey a mandatory curfew. . . . These conditions are almost identical to those conditions which can be imposed on a probationer or parolee for whom a DNA testing requirement has been found appropriate under a totality of the circumstances standard. The court finds that an up-front requirement for finding probable cause that the defendant has committed the charged felony places the issue much more closely with those cases utilizing a totality of the circumstances standard.
Applying the totality of the circumstances standard, the magistrate concluded that "the decision to impose the DNA testing requirement on pre-trial detainees or releasees seems clearly warranted, if not compelling," because "an arrestee's identity obviously becomes a matter of legitimate state interest," and an arrestee "has a diminished expectation in privacy in his own identity."
In denying Pool relief, the magistrate stressed what his holding did not encompass.
It does not authorize DNA sampling after citation or arrest for infractions or misdemeanors, as in these cases there will be no judicial finding of probable cause soon after the arrest or citation, or no grand jury finding before or after the arrest. See Fed. R. Crim. P. 7(a). It does not authorize police officials to perform DNA sampling prior to a judicial finding of probable cause which must be made within 48 hours after arrest and detention. Again, it is the finding of probable cause on criminal charges which allows the court to set release conditions similar to those of probation and parole, which is the underpinning of the court's holding in this case.
The magistrate stayed the DNA collection pending Pool's appeal to the district court judge. The district judge conducted a de novo review, found the magistrate's findings and analysis to be "exhaustive, well reasoned and supported by the record," and reiterated that "no Fourth Amendment or other Constitutional violation is caused by the 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."
On July 16, 2009, the district court issued an order denying the motion to amend the release order and upholding DNA testing. Pool filed a timely notice of appeal and requested a stay of the DNA collection, which the magistrate granted.
Title 18 U.S.C. § 3145(c) provides for an immediate appeal from a release or detention order. The district court's determination that the mandatory DNA collection provision of the Bail Reform Act does not violate Pool's constitutional rights is reviewed de novo. United States v. Schales, 546 F.3d 965, 971 (9th Cir. 2008) ("A challenge to the constitutionality of a federal statute is a question of law that is reviewed de novo.").
 Our review of the district court's order starts with the recognition that "[t]he 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." Kincade, 379 F.3d at 821 n.15; see also Friedman v. Boucher, 580 F.3d 847, 852 (9th Cir. 2009) (holding that "[t]here is no question that the buccal swab constituted a search under the Fourth Amendment").
 Accordingly, as the statute's compulsion of a DNA sample does not contemplate the issue of a search warrant, the provision will pass constitutional muster only if it "falls within certain established and well-defined exceptions to the warrant clause." United States v. Brown, 563 F.3d 410, 414-15 (9th Cir. 2009) (internal quotation and citation omitted). Here, the district court considered two exceptions to the warrant clause, the "special needs" test and the "totality of the circumstances" test.
A. The Special Needs Test
The use of the special needs test would be problematic. The test was developed in cases outside of the law enforcement context and the Supreme Court has been leery of applying it to criminal cases. See Ferguson v. City of Charleston, 532 U.S. 67, 84 (2001). The Court's language in Ferguson renders the government's suggestion that "special law enforcement interests" can be distinguished from ordinary law enforcement purposes questionable at best.*fn5 Id.; see also Friedman, 580 F.3d at 853 (noting that "[b]ecause the 'special needs' exception applies only to non-law enforcement purposes, and the State's interest here is the use of data for purely law enforcement purposes, the 'special needs' exception is inapplicable"); and United States v. Scott, 450 F.3d 863, 870 (9th Cir. 2006) (commenting that "[c]rime prevention is a quintessential general law enforcement purpose and therefore is the exact opposite of a special need").
We need not, however, determine whether the DNA collection provision could meet the special needs test because our precedent directs us to apply the totality of the circumstances test. In United States v. Kriesel, 508 F.3d 941, 947 (9th Cir. 2007), we held:
Taking our cue from Samson [v. California, 547 U.S. 843, 126 S.Ct. 2193 (2006)], we reaffirm that "the touchstone of the Fourth Amendment is reasonableness," id. at 2201 n.4, and adopt the "general Fourth Amendment approach," which "examin[es] the totality of the circumstances to determine whether a search is reasonable." Id. at 2197 (quoting United States v. Knights, 534 U.S. 112, 118, . . . (2001)) (internal quotation marks omitted). "Whether a search is reasonable '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.' " Id. (quoting Knights, 534 U.S. at 118-19).
See also Kincade, 379 F.3d at 832 ("We today reaffirm the continuing vitality of Rise [v. Oregon, 59 F.3d 1556 (9th Cir. 1995)] - and hold 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."). Accordingly, we review the mandatory DNA collection provision under the totality of the circumstances test.
B. The Totality of the Circumstances Test
 The totality of the circumstances test requires the court to balance the intrusion upon the individual's privacy with the government's legitimate interests. In Samson, the Supreme Court stated: "[w]hether a search is reasonable '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 governmen- tal interests.' " 547 U.S. at 848 (quoting Knights, 534 U.S. at 118-19). See also Kriesel, 508 F.3d at 952 (holding that in Samson, the Supreme Court held that the totality of the circumstances test was the proper mode for analyzing a state statute requiring DNA testing as a condition of supervised release).
 However, our opinions suggest that there may be a prerequisite to the application of this test: there must be some legitimate reason for the individual having less than the full rights of a citizen. See Kincade, 379 F.3d at 833 (noting "the well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public"); see also Scott, 450 F.3d at 873 ( "Scott had a reduced expectation of privacy because he had signed a form that, on its face, explicitly waived the warrant requirement and implicitly (through the use of the word 'random') waived the probable cause requirement for drug testing."). But see Rise, 59 F.3d at 1559 ("Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes.").
 Here, the magistrate found that the "judicial or grand jury finding of probable cause" was the "watershed event" that distinguished Pool from the general public and allowed for the application of the totality of the circumstances test. He noted that at this point, "defendant may be deprived of his very liberty; he can be subject to electronic monitoring; he may be ordered to obey a mandatory curfew." Certainly, the magistrate is correct that at this point the government may, through the judiciary, impose conditions on an individual that it could not otherwise impose on a citizen. Thus, the determination that there is probable cause to believe Pool committed a federal felony, allows the application of the totality of the circumstances test.*fn6
Pool argues, citing Scott, that the presumption of innocence to which he is entitled precludes the application of the totality of the circumstances test. This approach, however, was rejected by the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 533 (1979), when it stated that the presumption of innocence "has no application to the determination of the rights of a pretrial detainee during confinement before his trial has ever begun." Indeed, in United States v. Salerno, 481 U.S. 739, 749 (1987), the Supreme Court indicated that with a person's arrest the government may have grounds to limit the arrestee's rights. The Court noted:
Even competent adults may face substantial liberty restrictions as a result of the operation of our criminal justice system. If the police suspect an individual of a crime, they may arrest and hold him until a neutral magistrate determines whether probable cause exists. Gerstein v. Pugh, 420 U.S. 103, . . . (1975). Finally, respondents concede and the Court of Appeals noted that an arrestee may be incarcerated until ...