United States v. Kriesel ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30110
Plaintiff-Appellee,
v.  D.C. No.
CR-03-05258-RBL
THOMAS EDWARD KRIESEL, JR.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
March 20, 2007—San Francisco, California
Filed November 29, 2007
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge McKeown;
Dissent by Judge B. Fletcher
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
15299
15302 UNITED STATES v. KRIESEL
COUNSEL
Colin Fieman and Joanne Green, Federal Public Defenders,
Tacoma, Washington, for the appellant.
Helen J. Brunner, John McKay, and Mike Dion, United States
Attorneys, Seattle, Washington, for the appellee.
UNITED STATES v. KRIESEL 15303
OPINION
McKEOWN, Circuit Judge:
In 2004 we held that the DNA Analysis Backlog Elimina-
tion Act of 2000 “satisfies the requirements of the Fourth
Amendment” with respect to individuals on supervised
release. United States v. Kincade, 379 F.3d 813, 839 (9th Cir.
2004) (en banc). The 2000 Act required collection of DNA
samples from individuals in custody and on probation, parole,
or supervised release who had been convicted of “qualifying
Federal offenses,” then defined as certain violent crimes. 42
U.S.C. § 14135a (2000). Congress amended the Act in 2004
to expand the qualifying offenses to all felonies. Joining every
other circuit to consider the 2004 Act, we hold that the
amended statute passes constitutional muster with respect to
a convicted felon on supervised release.1
I. STATUTORY AND REGULATORY BACKGROUND
In 2000, Congress enacted the DNA Analysis Backlog
Elimination Act (the “DNA Act” or the “Act”), which
required DNA samples to be collected from individuals in
custody and those on probation, parole, or supervised release
after being convicted of “qualifying Federal offenses.” 42
U.S.C. § 14135a. The DNA Act originally defined “qualifying
Federal offenses” as the following: (A) murder, voluntary
manslaughter, or other offense relating to homicide, (B) an
offense relating to sexual abuse, to sexual exploitation or
other abuse of children, or to transportation for illegal sexual
activity, (C) an offense relating to peonage and slavery, (D)
kidnaping, (E) an offense involving robbery or burglary, (F)
1
In so doing, we acknowledge that in Kincade and elsewhere, much ink
has been spilled over this sensitive and contentious issue, and emphasize
that we confine our discussion to resolving the constitutionality of the
2004 amendment, as applied to individuals like Kriesel. Cf. 379 F.3d at
837-38.
15304 UNITED STATES v. KRIESEL
any violation of 18 U.S.C. § 1153 involving murder, man-
slaughter, kidnaping, maiming, a felony offense relating to
sexual abuse, incest, arson, burglary, or robbery, (G) any
attempt or conspiracy to commit any of the above offenses.
See DNA Analysis Backlog Elimination Act, Pub. L. No.
106-546, § 3, 114 Stat. 2726, 2729-30 (2000). In 2001, the
USA PATRIOT Act added to § 14135a “[a]ny offense listed
in section 2232b(g)(5)(B) of Title 18 [acts of terrorism tran-
scending national boundaries],” “[a]ny crime of violence (as
defined in section 16 of Title 18, United States Code),” and
“[a]ny attempt or conspiracy to commit any of the above
offenses” to the list of qualifying offenses. See Pub. L. No.
107-56, § 503, 115 Stat. 272, 364 (2001). Together, these
qualifying offenses are generally characterized as violent
crimes.
Congress passed the Justice for All Act in 2004, which fur-
ther amended the DNA Act by expanding the definition of
“qualifying Federal offenses” as follows:
(d) Qualifying Federal offenses
The offenses that shall be treated for purposes of this
section as qualifying Federal offenses are the follow-
ing offenses, as determined by the Attorney General:
(1) Any felony.
(2) Any offense under chapter 109A of Title 18
[sexual abuse crimes].
(3) Any crime of violence (as that term is defined
in section 16 of Title 18).2
2
18 U.S.C. § 16 defines “crime of violence” as “(a) an offense that has
as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or (b) any other offense that is
a felony and that, by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the course
of committing the offense.” All crimes of violence, whether felonies or
misdemeanors, are covered by the statute and implementing regulation.
UNITED STATES v. KRIESEL 15305
(4) Any attempt or conspiracy to commit any of
the offenses in paragraphs (1) through (3).
Pub. L. No. 108-405, § 203(b), 118 Stat. 2260, 2270 (2004).3
Rather than specifying certain crimes, the amendment
included all felonies, all crimes of violence, and all sexual
abuse crimes under Chapter 109A of Title 18.
The Attorney General has authority to promulgate regula-
tions to carry out the statute. See 42 U.S.C. § 14135a(e); 28
C.F.R. § 28.2; DNA Sample Collection From Federal Offend-
ers Under the Justice for All Act of 2004, 70 Fed. Reg. 4,763-
01 (Jan. 31, 2005) (“DNA Sample Collection”). In response
to the 2004 changes, the Attorney General revised 28 C.F.R.
§ 28.2, the regulation that identifies qualifying federal
offenses for the purposes of DNA sample collection, to track
the new language of § 14135a(d).
As under the original DNA Act, probation offices collect
DNA samples from individuals on probation, parole, or super-
vised release who have been convicted of a qualifying federal
offense, 42 U.S.C. § 14135a(a)(2), and the samples are fur-
nished to the Director of the Federal Bureau of Investigation
(the “FBI”), “who . . . carr[ies] out a DNA analysis on each
such DNA sample and include[s] the results in CODIS,” id.
§ 14135a(b).4 CODIS is the FBI’s Combined DNA Index
System—a centrally-managed database linking DNA profiles
culled from federal, state, and territorial DNA collection pro-
3
The Act has since been amended to authorize DNA collection “from
individuals who are arrested, facing charges, or convicted [of qualifying
felonies,] or from non-United States persons who are detained under the
authority of the United States.” See Violence Against Women and Depart-
ment of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,
§ 1004(a), 119 Stat. 2960, 3085 (2006). We do not address the constitu-
tionality of the 2006 version of the Act, which greatly expanded the appli-
cability of the statute beyond convicted individuals.
4
Kincade provides a fuller description of the mechanics of the DNA Act
and CODIS. 379 F.3d at 817-20 (plurality opinion).
15306 UNITED STATES v. KRIESEL
grams, as well as profiles drawn from crime-scene evidence,
unidentified remains, and genetic samples voluntarily pro-
vided by relatives of missing persons. See Kincade, 379 F.3d
at 819 (plurality opinion).
The 2000 Act also provided privacy protection standards,
which remain in place after the 2004 amendment. Each act of
unauthorized collection, use, or disclosure of a DNA sample
is a separate crime, and “[a] person who knowingly discloses
a sample or result described in subsection (a) in any manner
to any person not authorized to receive it, or obtains or uses,
without authorization, such sample or result, shall be fined not
more than $250,000, or imprisoned for a period of not more
than one year.” 42 U.S.C. § 14135e(c). Subsection (a) pro-
vides that in general, “any sample collected under, or any
result of any analysis carried out under, section 14135,
14135a, or 14135b of this title may be used only for a purpose
specified in such section.” Id. § 14135e(a).
II. KRIESEL’S CLAIMS
In March 1999, Thomas Edward Kriesel, Jr. pleaded guilty
to one count of conspiracy to commit the crime of possession
with intent to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846. He was sentenced to thirty
months of imprisonment and three years of supervised
release. At the time of judgment, the terms of Kriesel’s super-
vised release included this standard condition: “You shall
answer truthfully all inquiries by the probation officer and fol-
low the instructions of the probation officer.” Kriesel was also
advised that he “shall submit his person, residence, place of
employment or vehicle to a search upon request by the U.S.
Probation Office.”
When he was initially scheduled for DNA testing, Kriesel
informed the probation officer that he was opposed in princi-
ple to the government’s collection and permanent storage of
his DNA. In August 2005, the Probation Department peti-
UNITED STATES v. KRIESEL 15307
tioned the district court to revoke Kriesel’s supervision
because he failed to report for DNA testing. Because Kriesel’s
conviction for conspiracy to distribute methamphetamine is a
felony, it is a “qualifying Federal offense” under the DNA
Backlog Elimination Act as amended in 2004. 42 U.S.C.
§ 14135a(d) (2004). At the hearing on the petition to revoke
supervised release, Kriesel’s counsel argued that the Attorney
General promulgated the regulation governing DNA collec-
tion in violation of the notice and comment provisions of the
Administrative Procedure Act (“APA”), 5 U.S.C. § 553, and
that the DNA Act as amended in 2004 violated the Fourth
Amendment’s prohibition on unreasonable searches and sei-
zures. See U.S. Const., amend. IV.
The district court rejected these arguments and upheld both
the validity of the regulation and the constitutionality of the
Act. The district court also granted a stay of its order pending
appeal.
III. APA CHALLENGE
[1] Kriesel first contends that the Attorney General was
required to follow the notice and comment procedures in 5
U.S.C. § 553 because in revising 28 C.F.R. § 28.2, the Attor-
ney General promulgated a substantive or legislative rule. The
APA provides that administrative rules must be adopted
through the rulemaking process, which includes notice and an
opportunity for public comment. 5 U.S.C. §§ 551(4), (5); 553.
Although not referenced in the statute, the courts have denom-
inated such rules as “legislative rules.” See Richard J. Pierce,
Jr., Distinguishing Legislative Rules from Interpretive Rules,
52 ADMIN. L. REV. 547, 549 (2000). In contrast, the APA spe-
cifically exempts “interpretive rules” from the rulemaking
process. 5 U.S.C. § 553(b)(A).
[2] The Attorney General’s regulation issued in response to
the 2004 amendment is a classic interpretive rule: it is a rule
“issued by an agency to advise the public of the agency’s con-
15308 UNITED STATES v. KRIESEL
struction of the statutes and rules which it administers.”
Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)
(quoting United States Department of Justice, Attorney Gen-
eral’s Manual on the Administrative Procedure Act (1947));
see also Hemp Indus. Ass’n v. Drug Enforcement Agency, 333
F.3d 1082, 1087 (9th Cir. 2003) (“In general terms, interpre-
tive rules merely explain, but do not add to, the substantive
law that already exists in the form of a statute or legislative
rule.”).
The 2004 amendment dictates the basis for the regulatory
revision. The statute provides in relevant part: “[t]he offenses
that shall be treated for purposes of this section as qualifying
Federal offenses are the following offenses, as determined by
the Attorney General: (1) Any felony.” Justice for All Act,
§ 203(b).
[3] The Attorney General issued regulations that mirror the
statute, by designating “any felony” as a qualifying offense.
28 C.F.R. § 28.2(b)(1). The regulations define “felony” in
accord with federal law as an “offense that would be classi-
fied as a felony under 18 U.S.C. § 3559(a) or that is specifi-
cally classified by a letter grade as a felony.” Id. § 28.2(a).
Kriesel’s contention, which is not easy to divine, is appar-
ently that by designating “all” felonies, rather than some, the
Attorney General was legislating rather than interpreting the
statute. This argument is difficult to countenance as the Attor-
ney General simply defined felony in accord with an existing
federal standard and adopted the “any felony” designation
directly from the statutory language. See H.R. Rep. No. 108-
711 (2004), as reprinted in 2005 U.S.C.C.A.N. 2274, 2284,
2004 WL 2348416 (stating that the 2004 amendment meant
to authorize collection of DNA samples from “all felons con-
victed of Federal crimes and qualifying military offenses.”).
In promulgating the regulation, the Attorney General specifi-
cally recognized that “[t]he notion of a ‘felony’ is a standard,
familiar concept in Federal criminal law, and this rule simply
UNITED STATES v. KRIESEL 15309
refers to existing statutory provisions for its definition,” and
that § 28.2 simply “defines ‘felony’ as it is ordinarily
understood—i.e., as referring to offenses for which the maxi-
mum authorized term of imprisonment exceeds one year.”
DNA Sample Collection, 70 Fed. Reg. 4,764, 4,766 (citing 18
U.S.C. § 3559(a)).
[4] As the Attorney General explained, he understood the
2004 amendment itself to “authorize[ ] DNA sample collec-
tion from all Federal offenders convicted of felonies.” DNA
Sample Collection, 70 Fed. Reg. 4,766. We earlier observed
that “penalizing the agency” for explaining the bad news
about the DNA Act, “by labeling the explanation ‘substan-
tive,’ would be killing the messenger. The regulation
impose[s] no other substantive legal duties . . . other than
what the statute already imposed.”5 Alcaraz v. Block, 746 F.2d
593, 613-14 (9th Cir. 1984). Nothing in these regulations sup-
ports a claim that the rules are legislative and thus merit a
full-blown rulemaking process.
IV. CONSTITUTIONAL CHALLENGE
Every circuit to consider a Fourth Amendment challenge to
the 2004 Act has reached the same conclusion: collecting
DNA from nonviolent felons as authorized by the Act does
not violate the Fourth Amendment.6 The majority of circuits
5
By contrast, the Attorney General specifically acknowledged his dis-
cretion in “mak[ing] judgments in determining which particular offenses
constitute ‘crimes of violence’ as defined in 18 U.S.C. [§] 16—but these
judgments were already made, following public notice and the receipt of
comments, in the version of 28 C.F.R. [§] 28.2 that was published on
December 29, 2003, and went into effect on January 28, 2004 [68 Fed.
Reg. 74,855]. The revised regulation does not change these determina-
tions.” DNA Sample Collection, 70 Fed. Reg. 4,766.
6
Whether a search is unreasonable under the Fourth Amendment is a
question of law reviewed de novo. United States v. Stafford, 416 F.3d
1068, 1073 (9th Cir. 2005). “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.” Kincade, 379 F.3d at 821 n.15 (plurality
opinion).
15310 UNITED STATES v. KRIESEL
adopt a “totality of the circumstances” framework. United
States v. Weikert, ___ F.3d ___, 2007 WL 2265660, at *7 (1st
Cir. Aug. 9, 2007); United States v. Banks, 490 F.3d 1178,
1183 (10th Cir. 2007); United States v. Kraklio, 451 F.3d 922,
924 (8th Cir. 2006); United States v. Castillo-Lagos, 147 Fed.
App’x 71 (11th Cir. 2005).7 In contrast, the Second and Sev-
enth 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).8
In light of Samson v. California, we continue to ground our
analysis in the totality of circumstances test. 126 S. Ct. 2193(2006). Before Samson, no Supreme Court case had addressed
this issue. See Kincade, 379 F.3d at 832 n.27 (plurality opin-
ion). In Samson, however, the Court applied the totality of the
circumstances test in upholding a California law providing
that, as a condition for release, every prisoner eligible for state
parole must agree to be subject to a search or seizure by a
parole officer with or without a warrant, and with or without
cause. 126 S. Ct. at 2197, 2199 n.3, 2202.
Taking our cue from Samson, we reaffirm that “the touch-
stone 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 circum-
7
Prior to 2007, the Eleventh Circuit allowed citation to unpublished dis-
positions as persuasive authority. See 11th Cir. R. 36-2, Robert Timothy
Reagan, Federal Judicial Center, Citing Unpublished Federal Appellate
Opinions Issued Before 2007 (2007), http://www.uscourts.gov/rules/
Unpub_Opinions.pdf.
8
The federal and state courts have also upheld a variety of other statutes
authorizing DNA collection from all convicted felons. See, e.g., Green v.
Berge, 354 F.3d 675 (7th Cir. 2004) (upholding Wisc. Stat. Ann. § 165.77
(West 1999)); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) (upholding
Va. Code Ann. § 19.2-310.2 (1990)); Doles v. State, 994 P.2d 315 (Wyo.
1999) (upholding Wyo. Stat. Ann. § 7-19-403 (1997)).
UNITED STATES v. KRIESEL 15311
stances 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 promo-
tion of legitimate governmental interests.’ ” Id. (quoting
Knights, 534 U.S. at 118-19).9
A. KRIESEL’S PRIVACY INTEREST
[5] In assessing the nature of Kriesel’s privacy interest, “we
begin our resolution of the issue by taking note of the well-
established principle that parolees and other conditional
releasees are not entitled to the full panoply of rights and pro-
tections possessed by the general public.” Kincade, 379 F.3d
at 833 (plurality opinion). Rather, the Supreme Court has
often recognized, as it did yet again in Samson, that parolees
“have severely diminished expectations of privacy, and that
the Fourth Amendment does not necessarily prohibit a police
officer from conducting a suspicionless search of a parolee.
126 S. Ct. at 2199, 2202; see also Kincade, 379 F.3d at 834(plurality opinion) (“[C]onditional releasees enjoy severely
constricted expectations of privacy relative to the general citi-
zenry.”)
[6] As a direct consequence of Kriesel’s status as a super-
vised releasee, he has a diminished expectation of privacy in
his own identity specifically, and tracking his identity is the
primary consequence of DNA collection. The DNA analyzed
by the FBI consists primarily of “junk DNA”—“non-genic
stretches of DNA not presently recognized as being responsi-
ble for trait coding” that were purposefully selected because
9
For Fourth Amendment purposes, our cases do not distinguish among
parolees, probationers, and those on supervised release. Kincade, 379 F.3d
at 817 n.2 (citing United States v. Harper, 928 F.2d 894, 896 n.1 (9th Cir.
1991)).
15312 UNITED STATES v. KRIESEL
“they are not associated with any known physical or medical
characteristics.” Kincade, 379 F.3d at 818 (plurality opinion)
(internal quotation marks omitted). But see id. n.6 (“Recent
studies have begun to question the notion that junk DNA does
not contain useful genetic programming material.”). And,
based on Kriesel’s status as a qualified offender on supervised
release, he can claim only the most limited expectation of pri-
vacy, if any, in his identity given that he was lawfully con-
victed of a predicate offense. See id. at 842 n.3 (Gould, J.,
concurring) (noting that it is permissible to maintain identify-
ing fingerprints of felons even after they have been released
because fingerprints reveal only identity, but declining to
endorse the practice of retaining DNA in the CODIS database
after a felon has paid his debt to society).
In assessing the nature of the privacy intrusion, we are
mindful of the caution that DNA often reveals more than
identity, and that with advances in technology, junk DNA
may reveal far more extensive genetic information. Judge
Gould observed in his concurrence in Kincade, “unlike finger-
prints, DNA stores and reveals massive amounts of personal,
private data about that individual, and the advance of science
promises to make stored DNA only more revealing over time.
Like DNA, a fingerprint identifies a person, but unlike DNA,
a fingerprint says nothing about the person’s health, their pro-
pensity for particular disease, their race and gender character-
istics, and perhaps even their propensity for certain conduct.”
Id. n.3; see also Amerson, 483 F.3d at 85 (recognizing “the
vast amount of sensitive information that can be mined from
a person’s DNA and the very strong privacy interests that all
individuals have in this information” (citing Kincade, 379
F.3d at 843 (Reinhardt, J., dissenting)).
[7] The concerns about DNA samples being used beyond
identification purposes are real and legitimate. Nevertheless,
those concerns are mitigated by the Act’s privacy protections,
which provide criminal penalties for the unauthorized use of
DNA samples. They are also outweighed by the competing
UNITED STATES v. KRIESEL 15313
notion that supervised releasees have little to no privacy inter-
est in their identities. See 42 U.S.C. § 14135e(c) (“A person
who knowingly discloses a [DNA] sample or result . . . in any
manner to any person not authorized to receive it, or obtains
or uses, without authorization, such sample or result, shall be
fined not more than $250,000, or imprisoned for a period of
not more than one year. Each instance of disclosure, obtain-
ing, or use shall constitute a separate offense under this subsec-
tion.”).10
[8] The physical drawing of blood also implicates Kriesel’s
interest in bodily integrity, “a cherished value of our society.”
Schmerber v. California, 384 U.S. 757, 772 (1966). A blood
draw “is inherently more intrusive than a purely external
search such as fingerprinting.” See Weikert, 2007 WL
2265660, at *8. Nevertheless, the Supreme Court has held that
the intrusion caused by a blood test itself “is not significant,
since such ‘tests are a commonplace in these days of periodic
physical examinations and experience with them teaches that
the quantity of blood extracted is minimal, and that for most
people, the procedure involves virtually no risk, trauma, or
pain.’ ” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602,
625 (1989) (quoting Schmerber, 384 U.S. at 771). “[I]t is
[also] a commonly accepted condition of probation [or super-
vised release] that the probationer [or releasee] submit to drug
tests, with the result that, often, the requisite DNA sample can
be collected without any incremental intrusion.” Amerson,
483 F.3d at 85. Consequently, the additional privacy implica-
tions of a blood test collecting DNA, as opposed to a cheek
swab or other mechanism, do not significantly alter our analy-
sis. Cf. id. at 84-85 (distinguishing between the physical tak-
ing of DNA samples and the “more serious invasion” of
10
“Should the uses to which ‘junk DNA’ can be put be shown in the
future to be significantly greater than the record before us today suggests,
a reconsideration of the reasonableness balance struck would be neces-
sary,” even with respect to individuals in Kriesel’s exact position. Amer-
son, 483 F.3d at 85 n.13.
15314 UNITED STATES v. KRIESEL
“analysis and maintenance” of an individual’s information).
Based on all these considerations, we conclude that as a con-
victed felon who currently continues to serve his term of
supervised release, Kriesel has a diminished privacy interest
in the collection of his DNA for identification purposes.
We emphasize that our ruling today does not cover DNA
collection from arrestees or non-citizens detained in the cus-
tody of the United States, who are required to submit to DNA
collection by the 2006 version of the DNA Act. See 42 U.S.C.
§ 14135a(a)(1)(A) (2006). Nor do we have before us “a peti-
tioner who has fully paid his or her debt to society, who has
completely served his or her term, and who has left the penal
system . . . . Once those previously on supervised release have
wholly cleared their debt to society, the question may be
raised, ‘Should the CODIS entry be erased?’ ” Kincade, 379
F.3d at 841 (Gould, J., concurring in the judgment). We do
not answer these questions. See also Green, 354 F.3d at 679-
81 (Easterbrook, J., concurring) (noting that “[f]elons whose
terms have expired” form a different category of individuals
than supervised releasees for the purposes of a Fourth
Amendment inquiry). Rather, our decision is confined to the
precise circumstances before us.
B. GOVERNMENT’S INTERESTS
In Kincade, the plurality identified as “undeniably compel-
ling” and “monumental” three governmental interests justify-
ing DNA collection from violent felons: First, “[b]y
establishing a means of identification that can be used to link
conditional releasees to crimes committed while they are at
large,” compulsory DNA profiling serves society’s interest in
ensuring that releasees comply with the conditions of their
release. 379 F.3d at 838 (plurality opinion). Second, the deter-
rent effect of such profiling fosters society’s interest in reduc-
ing recidivism. Id. Finally, collecting the DNA of offenders
contributes to the solution of past crimes. Id. In elaborating on
those interests, the analysis did not distinguish as a practical
UNITED STATES v. KRIESEL 15315
matter between violent and nonviolent felons. Here the gov-
ernment advances the same arguments with respect to nonvio-
lent felons, and Kincade’s rationale applies with equal force.
[9] The governmental interest in identifying releasees and
linking them to crimes committed while “at large” is signifi-
cant. While DNA evidence is often central to the investiga-
tions of violent crimes such as murder or sexual assault, see
Roe v. Marcotte, 193 F.3d 72, 82 (2d Cir. 1999), it can be use-
ful in solving nonviolent crimes as well. As the Tenth Circuit
recently noted, “[i]t is important to realize . . . that DNA can
be extracted from hair, saliva, and numerous other parts of our
bodies that even a non-violent criminal could leave behind on
a piece of inculpatory evidence.” Banks, 490 F.3d at 1190; see
also Kincade, 379 F.3d at 838 n.37; Amerson, 483 F.3d at 88
n.15 (“[T]here are also indications that DNA can be, and is
increasingly, being used to solve nonviolent crimes.”).
Although fingerprint evidence might often be sufficient to
identify a past offender, DNA collection provides another
means for the government to meet its significant need to iden-
tify offenders who continue to serve a term of supervised
release. Cf. Banks, 490 F.3d at 1190.
[10] With respect to the deterrent effect, “[t]he Supreme
Court has repeatedly recognized that rates of re-arrest among
parolees and probationers are significantly higher than the
general crime rate.” Banks, 490 F.3d at 1189; see also Sam-
son, 126 S. Ct. at 2200 (collecting cases describing the state’s
interests in reducing recidivism and noting that “parolees . . .
are more likely to commit future criminal offenses”) (internal
quotation marks and citation omitted). “[T]he very assump-
tion of the institution of probation” or supervised release is
that the probationer is “more likely . . . to violate the law.”
Griffin v. Wisconsin, 483 U.S. 868, 880 (1987).
[11] Kriesel counters that nonviolent offenders have lower
recidivism rates than violent offenders. This argument is not
persuasive in Kriesel’s case. Indeed, he is already a recidivist,
15316 UNITED STATES v. KRIESEL
as he violated the terms of his release when he tested positive
for controlled substances. While it is true that “recidivism
rates vary with factors like the offender’s age and type of con-
viction,” nonetheless, “the high likelihood that non-violent
offenders will re-offend—and therefore, as the Supreme Court
recognized in Knights, be put in the position to conceal their
crimes and identities from the authorities—underscores the
Government’s interest in obtaining the most accurate identifi-
cation information it can from these individuals.” See Banks,
2490 F.3d at 1191.11
[12] Finally, the Kincade plurality also explained that “by
contributing to the solution of past crimes, DNA profiling of
qualified federal offenders helps bring closure to countless
victims of crime who long have languished in the knowledge
that perpetrators remain at large.” 379 F.3d at 839. Although
the weight of this rationale may vary when considering indi-
vidual types of crimes, nonviolent crimes can also cause sig-
nificant and lasting damage to innocent individuals. For
example, a family defrauded of its life savings, home, and
financial stability by an unscrupulous con artist running a
telemarketing or mail fraud scheme is just as much a victim
as a family that is the victim of a burglary, and just as DNA
samples can clear suspects of crimes, they can also contribute
to the resolution of past crimes. The government may cer-
tainly credit those concerns in pursuing ways to solve open
investigations.
[13] In sum, we agree in principle with the other circuits
that have considered the issue, and hold that in the case before
us, requiring Kriesel to comply with the 2004 amendment to
11
To be sure, the rate of recidivism for nonviolent offenders is less than
for violent offenders. Nonetheless, the rate remains significant. For exam-
ple, the recidivism rate for drug offenders is 21.2%. U.S. Sentencing Com-
mission, Measuring Recidivism: The Criminal History and Computation
of the Federal Sentencing Guidelines 30 (May 2004), available at http://
www.ussc.gov/research.htm.
UNITED STATES v. KRIESEL 15317
the DNA Act is constitutional because the government’s sig-
nificant interests in identifying supervised releasees, prevent-
ing recidivism, and solving past crimes outweigh the
diminished privacy interests that may be advanced by a con-
victed felon currently serving a term of supervised release.
AFFIRMED.
B. FLETCHER, Circuit Judge, dissenting:
The majority holds, with an air of shrugging inevitability,
that without a warrant, without probable cause, indeed with-
out any suspicion whatsoever, the federal government may
seize and repeatedly search the DNA of all federal felons on
supervised release, regardless of their offense or their likeli-
hood to re-offend. They sanction the inclusion of that DNA
in a massive and permanent computer database, the sole pur-
pose of which is to aid generalized criminal investigation.
This offends not only the Fourth Amendment but our prece-
dents. I respectfully dissent.1
I. FACTUAL BACKGROUND AND STATUTORY FRAMEWORK
In March of 1999, Kriesel was convicted of a non-violent
drug offense, conspiracy to possess methamphetamine with
intent to distribute. He was sentenced to thirty months impris-
onment and placed on supervised release. After his release in
February 2003, Kriesel failed three urinalyses, testing positive
once for morphine and twice for marijuana. In light of his
steady employment and established ties to the community,
1
I concur in Part III of the majority’s opinion and analysis of Kriesel’s
APA challenge. For reasons explained below, however, that portion of the
opinion merely holds that the Attorney General did not violate the APA’s
procedural requirements in promulgating regulations to implement an
unconstitutional statute.
15318 UNITED STATES v. KRIESEL
however, the court nonetheless allowed Kriesel to remain on
supervised release. Since early 2005, he has consistently
passed drug and alcohol tests and has remained fully
employed. No specific requirement that Kriesel submit to
DNA testing was included in the terms of his release. It did
include language that he must “follow the instructions of the
probation officer” and that he “submit his person . . . to a
search upon request by the U.S. Probation Office.” When
requested by the probation officer to submit to DNA testing,
he refused based on his objection on principle to invasion of
his privacy interest without cause. This resulted in revocation
of his probation, stayed, however, pending appeal.
Non-violent drug offenders like Kriesel fall within a cate-
gory of federal offenders that, according to government-
conducted studies, have one of the lowest rates of recidivism.
U.S. Sentencing Commission, Measuring Recidivism: The
Criminal History and Computation of the Federal Sentencing
Guidelines 13 (May 2004), available at http://www.ussc.gov/
research.htm (Commission Report) (drug trafficking offenders
within the group of offenders that “are overall the least likely
to recidivate”); U.S. Dept. of Justice, Bureau of Justice Statis-
tics, Offenders Returning to Federal Prison, 1986-97 1, 3
(Sept. 2000) (persons convicted of drug offenses were the
least likely to return to prison, with lower recidivism rate than
property and public-order offenses). The government does not
dispute the accuracy of these studies, nor did the government
come forward with any contrary evidence to suggest that non-
violent drug offenders present a high risk of recidivism.
The statute the court approves today is a revision, and sig-
nificant extension, of the predecessor version of the 2000
DNA Act. Under the 2000 DNA Act, a limited number of
crimes were categorized as a “qualifying . . . offense,” and
only supervised releasees convicted of those qualifying
offenses were required to submit to DNA sampling as a con-
dition of their release. See DNA Analysis Backlog Elimina-
tion Act, Pub. L. No. 106-546, § 3, 114 Stat. 2726, 2729-30
UNITED STATES v. KRIESEL 15319
(2000) (hereinafter “2000 DNA Act”). The DNA obtained
from those samples are placed within “CODIS,” the FBI’s
Combined DNA Index System. CODIS is a database that acts
as a clearinghouse for DNA information taken from state and
federal DNA collection programs, as well as crime scenes.
The offenses enumerated in the 2000 DNA Act were primar-
ily violent crimes and crimes related to illegal sexual activity.
Id.The Justice for All Act in 2004, however, amended the
DNA Act so that “any felony” now serves as a qualifying
offense. Pub. L. No. 108-405, § 203(b), 118 Stat. 2260, 2270
(2004) (hereinafter “2004 DNA Act”). As before, that DNA
is filed in the CODIS database. Notably, although the 2004
amendment brought the entire universe of non-violent federal
felonies within the Act’s purview, the House Report that
accompanied the amendment does not suggest that DNA evi-
dence has any utility in solving non-violent crimes. See H.R.
Rep. 108-711 (2004), reprinted in 2005 U.S.C.C.A.N. 2274.
To the contrary, the clearest statement on this point is that,
“When used to its full potential, DNA evidence will help
solve and may even prevent some of the most serious violent
crime.” 2005 U.S.C.C.A.N. at 2277 (emphasis added).
In order to obtain his DNA, blood will be extracted from
Kriesel while he is on supervised release, but the 2004 DNA
Act contains no provision that requires the destruction or
return of that biological sample (or the DNA analysis derived
from it) once his period of supervised release ends. Indeed,
the statute provides only for the destruction of the DNA anal-
ysis of a person included in CODIS in very limited circum-
stances. The burden to remove DNA from CODIS that was
collected as a result of a conviction for a qualifying offense
falls on the felon. Only by providing a “certified copy of a
final court order establishing that such conviction has been
overturned” will a person’s DNA analysis be expunged. 42
U.S.C. § 14132(d)(1)(A)(i). Thus, once Kriesel’s DNA is
placed within CODIS, it will remain there permanently and
15320 UNITED STATES v. KRIESEL
can be continually accessed and searched so long as the
search is conducted by Federal, State or local “criminal justice
agencies for law enforcement identification purposes. . . .” 42
U.S.C. § 14132(b)(3)(A). Simply put, once they have his
DNA, police at any level of government with a general crimi-
nal investigative interest in Kriesel can tap into that DNA
without any consent, suspicion, or warrant, long after his
period of supervised release ends.
Although it is easy enough to conceive of the hypothetical
risks to civil liberties invited by approving this kind of
regime, here, there is no need to speculate. The most recent
version of the DNA Act permits extraction of DNA from “in-
dividuals who are arrested, facing charges, or convicted [of
qualifying felonies] or from non-United States persons who
are detained under the authority of the United States.” 42
U.S.C. § 14135a(a)(1)(A) (2006).2
II. DISCUSSION
In our fractured opinion in United States v. Kincade, a plu-
rality of the court reasoned that the 2000 DNA Act was prop-
erly analyzed under “a traditional assessment of
reasonableness gauged by the totality of the circumstances.”
379 F.3d 813, 831 (9th Cir. 2004) (en banc). That view did
not, however, command a majority of the court. Judge Gould
separately concurred in Kincade, arguing that the DNA Act’s
regime of suspicionless searches was subject to a “special
needs” analysis. Id. at 840. Thus, although in Kincade the
court ultimately upheld the constitutionality of the 2000 DNA
Act, the opinion failed to produce any cohesive view on the
appropriate analytical construct.
2
There is a parallel provision of the act that allows for an arrestee’s
DNA to be expunged only if the Attorney General receives “a final court
order establishing that [ ] charge[s] [have] been dismissed or [have]
resulted in an acquittal or that no charge was filed within the applicable
time period.” 42 U.S.C. § 14132(d)(1)(A)(ii).
UNITED STATES v. KRIESEL 15321
How analytically to approach the constitutionality was
effectively answered by the Supreme Court in Samson v. Cali-
fornia, 126 S.Ct. 2193 (2006). In Samson, the Supreme Court
held that the totality-of-the-circumstances test was the proper
mode of analysis to examine a California statute (Cal. Penal
Code § 3067(a) (West 2000)) that permits suspicionless and
warrantless searches of California parolees while they remain
on parole. Id. at 2197. Samson, however, merely clarifies that
“totality of the circumstances” is the proper analytical con-
struct when confronted with a statute that authorizes warrant-
less and suspicionless searches of parolees. Samson does not
dictate, or give any support to, the outcome reached by the
majority in this case.
Samson re-stated the now familiar totality-of-the-
circumstances test used to determine whether or not a search
is “reasonable” by “assessing, on 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 United States
v. Knights, 534 U.S. 112, 118-119, 122 S.Ct. 587, 151
L.Ed.2d 497 (2001)). In Samson, the California statute under
consideration survived Fourth Amendment scrutiny based on
two premises. First, Samson, by virtue of his status as a paro-
lee, had a “severely diminished expectation[ ] of privacy.” Id.
at 2199. Second, the Court acknowledged California’s legiti-
mate interest in “supervising parolees” as a means to deter
recidivism present in the parolee population. Id. at 2200. But,
as the Court repeatedly emphasized, the governmental interest
was inextricably linked to the need to supervise a parolee
while he remained on parole. See id. at 2200-01 (“Thus, most
parolees require intense supervision . . . individualized suspi-
cion would undermine the State’s ability to effectively super-
vise parolees . . . the incentive-to-conceal concern justified an
‘intensive’ system for supervising probationers in Griffin. . . .
That concern applies with even greater force to a system of
supervising parolees . . . [individualized suspicion required by
other State parole systems of little relevance] to our determi-
15322 UNITED STATES v. KRIESEL
nation whether California’s supervisory system is drawn to
meet its needs and is reasonable.”) (emphases added). Thus,
Samson does not lend constitutional support to a statute that
sanctions warrantless and suspicionless searches untethered
from an immediate supervisory need. See United States v.
Weikert, No. 06-1861, ___ F.3d ___, 2007 WL 2265660, at
*14 (1st Cir. Aug. 9, 2007) (Stahl, J., dissenting) (“[T]he
Supreme Court [in Samson] has now identified three limited
circumstances in which a suspicionless search will survive
Fourth Amendment review: (1) programmatic searches; (2)
special needs searches; and (3) searches conducted as part of
a state’s conditional release program. This last category is
limited by the Court’s language to a state search program that
is genuinely designed to improve the monitoring and reinte-
gration of conditional releasees.”). With this framework and
guidance from the Court in mind, I turn to the 2004 DNA Act.
A. Totality-of-the-Circumstances and Kincade
The most apposite precedents in this Circuit to pass on the
constitutionality of the 2004 DNA Act are Samson and the
plurality decision from Kincade. As noted, three years ago the
far more limited 2000 DNA Act was upheld by a plurality in
Kincade, relying on a totality-of-the-circumstances analysis.
379 F.3d at 838-40. The plurality, however, was careful to
note that their decision was limited to the version of the Act
before the court, a version that targeted violent criminals. Dis-
tinguishing state programs that collected information from
“non-violent drug offenders,” the plurality emphasized that “it
is therefore particularly important to observe that we deal here
solely with the legality of requiring compulsory DNA profil-
ing of qualified federal offenders on conditional release.” Id.at 819 n.9. The plurality made clear that their decision there-
fore did not concern “the authority of the federal government
. . . to pass less narrowly tailored legislation.” Id. (emphasis
added). Thus, while Kincade provides some guidance, by its
own terms it does not purport to decide whether or not the
UNITED STATES v. KRIESEL 15323
“less narrowly tailored legislation” before us today passes
Fourth Amendment scrutiny. See id.Although none are controlling, the majority places great
weight on recent decisions from other circuits that have
upheld the 2004 DNA Act against a Fourth Amendment chal-
lenge. Maj. Op. at 15309-10, 15316-17. A closer look at those
cases reveals that the precise issues before us today have been
treated with more breadth than depth. Two of those decisions
relied on a “special needs” test which, in light of Samson, is
the improper analytical method for analysis of the 2004 DNA
Act. See 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).3
The decisions of the Eighth and Eleventh Circuits contain
little to no analysis of the interests at stake when the govern-
ment subjects all non-violent felony offenders to compulsory
DNA sampling. In United States v. Krakilo, 451 F.3d 922,
924-25 (8th Cir. 2006), the court’s discussion is devoted
almost entirely to choosing between a special needs or
totality-of-the-circumstances analysis. Once the totality-of-the
circumstances test is chosen, Krakilo summarily concludes
with a one-sentence determination that the 2004 DNA Act is
constitutional under that standard. Id. at 925. Similarly, in an
unpublished opinion the Eleventh Circuit upholds the 2004
DNA Act based on circuit precedent concerning a state-based
DNA collection statute, without engaging in any analysis
whatsoever as to the government’s interests in permanently
maintaining the DNA of non-violent federal felons. United
3
The Supreme Court has considered and rejected the contention that the
government’s ever-present generalized interest in criminal law enforce-
ment qualifies as a “special need.” Indianapolis v. Edmond, 531 U.S. 32,
41-42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Thus, even if it were the
proper method of analysis (and after Samson it is not), the 2004 DNA Act
would fail to survive Fourth Amendment review under that rubric. Kin-
cade, 379 F.3d at 854-57 (Reinhardt, J., dissenting) (analyzing 2000 DNA
Act under special needs).
15324 UNITED STATES v. KRIESEL
States v. Castillo-Lagos, 147 Fed. App’x 71, 75 (11th Cir.
2005). In Weikert, the First Circuit engages in a more substan-
tial totality-of-the-circumstances analysis than the other deci-
sions, but it does not consider how lowered recidivism rates
among non-violent offenders would affect the government’s
interests under that analysis. No. 06-1861, ___ F.3d ___, 2007
WL 2265660, at **9-10.
In United States v. Conley, in order to justify the 2004
DNA Act under a special needs analysis, the Sixth Circuit dis-
cussed with approval government data that suggested that
white-collar crime had recidivism rates “in certain groups,”
close to recidivism rates for firearms and robbery offenses.
453 F.3d 674, 679 (6th Cir. 2006).4 Conley, however, is silent
on recidivism rates for non-violent drug offenders like Krie-
sel, and the court in Conley does not cite to any recidivism
argument advanced by the government when trying to justify
the 2004 DNA Act under the totality of the circumstances. Id.
at 680-81.
Only Banks v. United States, 490 F.3d 1178 (10th Cir.
2007), genuinely addresses whether the government’s inter-
ests in maintaining a permanent DNA collection of felons on
supervised release are diminished in the case of non-violent
offenders. The Tenth Circuit in Banks concedes that, “[t]o be
sure, DNA might prove less valuable in solving non-violent
crimes than violent crimes, making the Government’s interest
in testing more compelling with respect to felons convicted of
violent crimes.” 490 F.3d at 1189-90. The court goes on to
explain away this distinction, however, by characterizing a
supervised releasee’s privacy interests as virtually non-
existent and contending that “the effectiveness of the Govern-
ment’s plan need not be high where the objective is signifi-
cant and the privacy intrusion is minimal.” Id. at 1190.
4
The appellant in Conley had been convicted of bank fraud, committed
while she was on probation for a similar fraud offense. 453 F.3d at 674-
75.
UNITED STATES v. KRIESEL 15325
I have two problems with this analysis. First, Banks places
such little weight on a releasee’s privacy interest as to make
it a meaningless consideration. Second, the argument that a
“significant” government objective is sufficient even if the
statute under consideration does not actually promote that
objective is sophistry—and is shockingly wrong. Knights
instructs that evaluating the reasonableness of a search for
Fourth Amendment purposes should be grounded in the “de-
gree to which it is needed for the promotion of legitimate gov-
ernmental interests.” 534 U.S. at 118-119 (emphasis added)
(quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct.
1297, 143 L.Ed.2d 408 (1999)). It simply cannot be correct
that a statute authorizing warrantless searches can pass Fourth
Amendment scrutiny with nothing more than a hypothetical
interest advanced by the government but not actually pro-
moted by the statute.
The Tenth Circuit in Banks also cited statistical data col-
lected from state prisons in 1994 indicating that “non-violent
offenders have higher recidivism rates than the general popu-
lation.” Id. at 1191 (citing U.S. Dept. of Justice, Bureau of
Justice Statistics, Profile of Nonviolent Offenders Exiting
State Prison (2004), http://www.ojp.usdoj.gov/bjs/pub/pdf/
pnoesp.pdf).5 Working with these statistics, the court in Banks
goes on to argue without authority or empirical evidence that
non-violent offenders who recidivate are “committing crimes
that DNA might solve (for example, violent offenses, drug
offenses, and property offenses.).” Id. This unsupported leap
is remarkable, given that just two pages earlier the court con-
cedes that “DNA might prove less valuable in solving non-
violent crimes[.]” Id. at 1189.6
5
The statistics relied on in Banks are undermined by the government
data regarding federal offenders placed in the record by Kriesel here, par-
ticularly drug offenders.
6
The study of state offenders relied on by the court in Banks does not
indicate whether the “violent offenses” are of a type where DNA evidence
could be of assistance. Profile of Nonviolent Offenders Exiting State
Prison at 4. The other two categories, “property offenses” and “drug
offenses,” are not defined or characterized by the study as violent
offenses.
15326 UNITED STATES v. KRIESEL
Because of the substantial erosion of Fourth Amendment
protection posed by the 2004 DNA Act, we should not uncrit-
ically adopt decisions from other Circuits where controlling
law in this Circuit does not dictate the same outcome. Thus,
with the limitations from Kincade and Samson as a guide, we
should consider Kriesel’s privacy interests as affected by the
2004 DNA Act on the one hand, balanced against the interests
advanced by the government on the other.
B. Kriesel’s Privacy Interests
It is true that conditional releasees like Kriesel have dimin-
ished privacy expectations. Samson, 126 S.Ct. at 2199; Kin-
cade, 379 F.3d at 833. But as the plurality observed in
Kincade, diminished does not mean extinguished. 379 F.3d at
835 (“Let us be clear: Our holding in no way intimates that
conditional releasees’ diminished expectations of privacy
serve to extinguish their ability to invoke the protections of
the Fourth Amendment’s guarantee against unreasonable
searches and seizures. Where a given search or class of
searches cannot satisfy the traditional totality-of-the-
circumstances test, a conditional releasee may lay claim to
constitutional relief—just like any other citizen.”). Thus,
while Kriesel cannot claim the level of protection afforded
ordinary citizens under the Fourth Amendment, his privacy
interests cannot be treated as weightless in the reasonableness
balance.
In considering that privacy interest, I also cannot overlook
that the search here is not limited to the initial extraction of
a biological sample from Kriesel, and with it, his DNA.
Rather, the warrantless “search” permitted by the 2004 DNA
Act extends to repeated searches of his DNA whenever the
government has some minimal investigative interest. Kincade,
379 F.3d at 873 (Kozinski, J., dissenting) (“[I]t is important
to recognize that the Fourth Amendment intrusion here is not
primarily the taking of the blood, but seizure of the DNA fin-
gerprint and its inclusion in a searchable database.”). Thus, I
UNITED STATES v. KRIESEL 15327
look to the interests advanced by the government, mindful of
the fact that the Act permits this ongoing search of Kriesel’s
DNA for his lifetime.7
C. Government’s Interests
In Kincade, the plurality pointed to three interests it
deemed “monumental” in balancing the government’s inter-
ests under the 2000 DNA Act. 379 F.3d at 839. First, it relied
on the use of DNA to provide “a means of identification that
can be used to link conditional releasees to crimes committed
while they are at large,” in order to ensure that a releasee
complies with the terms of his or her release. Id. at 838. Sec-
ond, DNA profiling was claimed to provide a deterrent effect
that “fosters society’s enormous interest in reducing recidi-
vism.” Id. at 839. Last, the plurality pointed to the use of
DNA to solve past crime. Id. As the majority notes, these
same interests are advanced by the government once again to
defend the 2004 DNA Act.
The interest in ensuring compliance with terms of release,
while obviously legitimate, must be viewed in light of the
Court’s decision in Samson. As Samson explained, warrant-
less and suspicionless searches of parolees are sometimes jus-
tified under a totality-of-the-circumstances analysis provided
that they are based on a legitimate supervisory need. 126 S.Ct.
at 2200-01. But, unlike the California statute under consider-
ation in Samson, the 2004 DNA Act permits those searches to
continue once the period of supervised release has ended,
enabling searches divorced from the government’s supervi-
sory interests. On its face, the 2004 DNA Act allows only a
releasee’s DNA profile to be removed if his or her underlying
7
The penalties for unauthorized disclosure of DNA held in CODIS do
nothing to address this, as disclosure of Kriesel’s DNA for general crimi-
nal investigation is a “permissive use[ ]” under the Act. See 42 U.S.C.
§ 14135e(b); 42 U.S.C. § 14132(b)(3)(A) (disclosure permitted “to crimi-
nal justice agencies for law enforcement identification purposes”).
15328 UNITED STATES v. KRIESEL
conviction is later overturned. 42 U.S.C. § 14132(d)(1)(A)(i).
Thus, while ensuring compliance with the terms of supervised
release stands as a credible government objective, the 2004
DNA Act is far broader than necessary to achieve that objec-
tive.
The majority disingenuously refuses to confront the fact
that the 2004 DNA Act clearly permits the retention of Krie-
sel’s DNA once his term of supervised release is over. Appar-
ently, it defines “the precise circumstances before us” as the
rights of a parolee while on parole, with no consideration of
the fact that his DNA will be retained in CODIS and be
searchable for the rest of Kriesel’s lifetime. Maj. Op. at
15314; see also Kincade, 379 F.3d at 841 (Gould, J., concur-
ring in the judgment) (“Once those previously on supervised
release have wholly cleared their debt to society, the question
may be raised, ‘Should the CODIS entry be erased?’ ”). But
we have previously found statutes not “limited by appropriate
regulations so as to preclude general searches,” unconstitu-
tionally overbroad without waiting for the discrete violation
of the Fourth Amendment enabled by that statute. Rush v.
Obledo, 756 F.2d 713, 723 (9th Cir. 1985) (invalidating por-
tion of California statute that allowed warrantless searches of
family day care centers without appropriate narrowing regula-
tions). Without reaching whether the 2004 DNA Act is inde-
pendently invalid under the Fourth Amendment for that
reason, the fact that a DNA entry is permanently lodged in
CODIS at the very least detracts from the weight afforded the
government’s claim that the statute is truly designed as a
supervisory tool.
Next, the deterrent effect advanced by the government is
seriously undermined here because Kriesel has offered unre-
butted data demonstrating that rates of recidivism are among
the lowest for non-violent drug offenders. Measuring Recidi-
vism: The Criminal History and Computation of the Federal
Sentencing Guidelines at 13; Offenders Returning to Federal
Prison, 1986-97 at 1 and 3. The majority excuses the govern-
UNITED STATES v. KRIESEL 15329
ment’s failure to rebut Kriesel’s evidence of low recidivism
rates by asserting that he “is already a recidivist, as he vio-
lated the terms of his release when he tested positive for con-
trolled substances.” Op. at 15315-16. Ironically, the
authorities had all the tools they needed to detect the recidi-
vism without resort to DNA, nor was his conduct a crime
except as it violated parole.
The majority reasons that a statute permitting suspicionless
extraction of DNA from all persons within a population that
has low rates of recidivism is permissible because there is a
basis to conclude that Kriesel himself will re-offend. Thus,
the majority allows the government to escape its failure to jus-
tify a program that requires participants to submit their DNA
without any suspicion, because it has suspicion in this particu-
lar case.8 This syllogism does not help the government do
what it must—make some showing that extracting DNA from
non-violent drug offenders discourages those persons from re-
offending.
Finally, the majority reasons that creating a DNA profile of
non-violent felons like Kriesel will “contribut[e] to the solu-
tion of past crimes.” Maj. Op. at 15316. I agree in principle
that a DNA program with some demonstrable effect on solv-
ing crime within the population profiled may satisfy the
Fourth Amendment. Rise v. Oregon, 59 F.3d 1556, 1561 (9th
Cir. 1995) (“The defendants produced uncontroverted evi-
dence documenting the high rates of recidivism among certain
types of murderers and sexual offenders. Moreover, investiga-
tions of murders and sexual offenses are more likely to yield
the types of evidence from which DNA information can be
derived, such as blood, semen, saliva, and hair evidence, than
8
Moreover, as noted Kriesel’s prior drug lapses were detected and
addressed without the need for his DNA profile—which the government
does not yet have. There is nothing in the record to suggest that Kriesel
would have been deterred from those lapses if the government had pos-
sessed his DNA.
15330 UNITED STATES v. KRIESEL
property crimes or other offenses committed without substan-
tial personal contact.”). But the totality-of-the-circumstances
test is not so standardless that the court may invent specula-
tive justifications when the government offers none of its
own. The majority’s suggestion that non-violent crimes have
victims is true as far as it goes, but it does not go far enough.
Kincade exhorted the closure brought to victims of violent
crimes, but that is only half of the analysis. It justified the
2000 DNA Act on the grounds that the statute actually con-
tributes “to the solution of past crimes.” 379 F.3d at 839.
Thus, it is not enough for the majority or the government to
simply argue that non-violent crimes have victims; rather,
there must be some basis to believe that DNA profiling actu-
ally aids those victims. The government placed nothing before
the court to speak to that aspect of the inquiry.
Because the government interests articulated in Kincade
and re-constituted here are not sufficiently weighty to over-
come Kriesel’s privacy interests, I would hold that the war-
rantless searches permitted by the 2004 DNA Act are
unreasonable, and that the Act fails to survive review under
a totality-of-the-circumstances test.
III. CONCLUSION
When the 2000 DNA Act narrowly survived Fourth
Amendment review in this court just three years ago, we were
told to take solace in the “limited nature of [the] holding.”
Kincade, 379 F.3d 835. Yet, by invoking the analysis from
Kincade, the majority approves, without flinching, a statute
that effects a far broader and far less justified erosion of the
Fourth Amendment, extending Kincade without acknowledg-
ing it does so. However well-intentioned it may be, I find cold
comfort in the majority’s assurance that its decision today is
“confined to the precise circumstances before us.” Maj. Op.
at 15314.
I do not question the efficacy of the government’s methods.
An ever-expanding and unerasable electronic index of DNA
UNITED STATES v. KRIESEL 15331
profiles, monitored by the government’s unblinking digital
eye, may no doubt prove to be an effective law enforcement
tool. But our compact with the government requires constitu-
tional means, not just effective ends. Once expediency infects
the Fourth Amendment analysis, as it has with the majority’s
blessing of the “significant” crime-solving purposes of DNA
profiling, there is no limiting principle beyond what the gov-
ernment says it needs. The line should be drawn far short of
where the majority puts it. I dissent.