Friedman v. Boucher

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH A. FRIEDMAN,  No. 05-15675
Plaintiff-Appellant,
v.  D.C. No.
CV-04-00286-JCM
DOLPHUS BOUCHER; ELISSA LUZAICH,
OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
October 19, 2007—San Francisco, California
Filed June 23, 2009
Before: Jane R. Roth,* Sidney R. Thomas, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Thomas;
Dissent by Judge Callahan
*The Honorable Jane R. Roth, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
7597
FRIEDMAN v. BOUCHER 7601
COUNSEL
Tyler A. Baker, Saundra Riley, Kimberly I. Culp, and Julie A.
Nokleberg; Fenwick & West LLP; Mountain View, Califor-
nia; for the appellant.
Robert J. Gower; Deputy District Attorney; Las Vegas,
Nevada; for the appellees.
OPINION
THOMAS, Circuit Judge:
Las Vegas Metropolitan Police Detective Dolphus Bou-
cher, 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
7602 FRIEDMAN v. BOUCHER
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 sam-
ple. The district court held that Boucher and Luzaich are enti-
tled 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 inter-
course 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, proba-
tioner, or otherwise under the supervision of the State of Mon-
tana.1 He then moved to Las Vegas, Nevada.
In March 2003, Detective Boucher asked Friedman to pro-
vide a DNA sample. Friedman was at the time incarcerated in
Clark County Jail as a pre-trial detainee pending the prosecu-
tion 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,
1
Because the district court granted summary judgment in favor of the
Defendants, the facts here are stated in the light most favorable to Fried-
man, the nonmoving party. See Olsen v. Idaho State Bd. of Medicine, 363
F.3d 916, 922 (9th Cir. 2004). We recognize that the Defendants contest
Friedman’s factual allegations, and our recitation of facts taken in the light
most favorable to Friedman does not constitute any opinion or conclusion
as to how the factual disputes ultimately may be resolved in the district
court.
FRIEDMAN v. BOUCHER 7603
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 detec-
tive 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 force-
fully 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 repre-
sented 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. Bou-
cher and Luzaich moved to dismiss the complaint, arguing
that they were entitled to qualified immunity.
2
A buccal swab is a swab taken from the mouth area to collect cheek
cells.
7604 FRIEDMAN v. BOUCHER
The district court initially denied Defendants’ Motion to
Dismiss. Shortly thereafter, we decided United States v. Kin-
cade, 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 Anal-
ysis Backlog Elimination Act of 2000., Pub. L. No. 106-546,
114 Stat. 2726 (2000). The district court then ordered Fried-
man to show cause why Boucher and Luzaich were not enti-
tled to qualified immunity, in light of Kincade. On March 25,
2005, relying on Kincade and the exhibits attached to Defen-
dants’ Motion to Dismiss, the district court granted summary
judgment3 in favor of Defendants on the ground that Defen-
dants were entitled to qualified immunity. This appeal fol-
lowed.
II
We review de novo a district court’s decision to grant sum-
mary judgment on the ground of qualified immunity. Motley
v. Parks, 383 F.3d 1059, 1062 (9th Cir. 2004). In reviewing
a district court’s grant of summary judgment we must deter-
mine, 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.
[1] To determine whether a government employee is enti-
tled to qualified immunity, we use a two-part test. Saucier v.
Katz, 533 U.S. 194, 201 (2001). We must determine whether,
viewed in the light most favorable to the plaintiff, the govern-
ment employee violated the plaintiff ’s constitutional rights.
3
The motion granted by the district court was a motion to dismiss. How-
ever, in granting that motion, the court relied on documents attached to the
motion which were outside the allegations in Friedman’s complaint. When
a district court relies on information outside the complaint in a motion to
dismiss, the motion is automatically converted to a motion for summary
judgment. Fed. R. Civ. P. 12(b)(6); Anderson v. Angelone, 86 F.3d 932,
934 (9th Cir. 1996).
FRIEDMAN v. BOUCHER 7605
Id. We must also determine whether the rights were clearly
established at the time of the violation. Id.; Pearson v. Calla-
han, 129 S. Ct. 808, 818-22 (2009).
III
[2] 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 (1989) (breathalyzer and urine sample);
Cupp v. Murphy, 412 U.S. 291, 295 (1973) (finger nail scrap-
ings); Schmerber v. California, 384 U.S. 757, 767-71 (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 impli-
cates the right to personal security embodied in the Fourth
Amendment, and thus constitutes a ‘search’ within the mean-
ing of the Constitution.” 508 F.3d 941, 946 (9th Cir. 2007)
(quoting Kincade, 379 F.3d at 821).
[3] 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 cer-
tain 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,
7606 FRIEDMAN v. BOUCHER
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 warrant-
less, 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 excep-
tion 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
[4] The government was not entitled to conduct the war-
rantless, 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 (2000). Under this exception, suspicionless
searches may be upheld if they are “conducted for important
non-law enforcement purposes in contexts where adherence to
the warrant-and-probable cause requirement would be imprac-
ticable.” Kincade, 379 F.3d at 823 (emphasis added); see also
United States v. Heckencamp, 482 F.3d 1142, 1147 (9th Cir.
2007) (applying a special needs exception when a university
computer system was under imminent threat).
[5] The “special needs” exception is limited to “important
non-law enforcement purposes.” Kincade, 379 F.3d at 823.
The only government interest asserted by Nevada in taking
Friedman’s DNA was to help solve “cold cases.” Solving
crimes is clearly a normal law enforcement function. Because
the “special needs” exception applies only to non-law
enforcement purposes, and the State’s interest here is the use
FRIEDMAN v. BOUCHER 7607
of data for purely law enforcement purposes, the “special
needs” exception is inapplicable.
B
[6] Defendants’ second argument is that they were permit-
ted to take the buccal swab by Montana Code Annotated Sec-
tion 44-6-103 (2003) (“the Montana Statute”). The Montana
Statute was passed in 1995 and requires persons convicted of
certain enumerated offenses to provide a biological sample to
the Montana Department of Justice for DNA analysis. Mont.
Code Ann. § 44-6-103. The crime to which Friedman pled
guilty in 1980 was one of the predicate offenses.
As a preliminary matter, we note that adherence to a state
statute does not guarantee compliance with the Fourth
Amendment. See Virginia v. Moore, 128 S. Ct. 1598, 1602
(2008). We need not consider whether the Montana statute
itself violates the Fourth Amendment, however. Defendants’
argument that the buccal swab was properly taken in accor-
dance with the Statute fails because the Montana statute does
not apply to Friedman.
1
[7] The Montana Statute does not apply extraterritorially.
At the risk of stating the obvious, the Montana Statute is a
statute passed by the Montana State Legislature which oper-
ates as law in the State of Montana. Defendants argue that
Nevada state officials can take action which would otherwise
be prohibited in Nevada4 against a Nevada citizen in the State
of Nevada simply by relying on a Montana statute. This argu-
ment was rejected almost a century ago by the United States
Supreme Court, when it considered “the power of the State of
Missouri to extend the operation of its statutes beyond its bor-
ders into the jurisdiction of other States, so as in such other
4
There is no Nevada statute comparable to the Montana Statute.
7608 FRIEDMAN v. BOUCHER
States to destroy or impair the right of persons not citizens of
Missouri to contract.” N.Y. Life Ins. Co. v. Head, 234 U.S.
149, 160 (1914). Holding that a state does not possess such
power, the Court explained:
Such question, we think, admits of but one answer
since it would be impossible to permit the statutes of
Missouri to operate beyond the jurisdiction of that
State and in the State of New York and there destroy
freedom of contract without throwing down the con-
stitutional barriers by which all the States are
restricted . . . . This is so obviously the necessary
result of the Constitution that it has rarely been cal-
led in question and hence authorities directly dealing
with it do not abound.
Id. at 161 (emphasis added). See also BMW of North America,
Inc. v. Gore, 517 U.S. 559, 572 (citing N.Y. Life in support of
the proposition that “[n]o State can legislate except with refer-
ence to its own jurisdiction.”).
More recently, the Supreme Court rejected the State of
Nevada’s attempt to obtain immunity from suit in California
by reliance on immunities granted under Nevada law. See
Nevada v. Hall, 440 U.S. 410, 426 (1979) (“The people of
Nevada have consented to a system in which their State is
subject only to limited liability in tort. But the people of Cali-
fornia, who have had no voice in Nevada’s decision have
adopted a different system. Each of these decisions is equally
entitled to our respect.”).
[8] Defendants were Nevada officials searching a Nevada
citizen in the state of Nevada for Nevada law enforcement
purposes. They are not entitled to justify their search with a
Montana statute.
2
[9] Even if the Montana Statute could constitutionally
apply extraterritorially, the plain language of the Montana
FRIEDMAN v. BOUCHER 7609
Statute makes the statute inapplicable to the seizure of Fried-
man’s DNA by Nevada officials for a number of reasons.
First, the Montana Statute does not apply to persons like
Friedman who are not under state supervision. While the stat-
ute requires a DNA sample from all “person[s] convicted of
a felony offense,” Mont. Code. Ann. § 44-6-103(1), the stat-
ute provides only one consequence if such a person refuses to
provide a sample: “The knowing refusal or failure to provide
a biological sample under this part is grounds for revocation
of a suspended or deferred imposition of sentence.” § 44-6-
103(5). At the time that Defendants demanded the DNA sam-
ple, Friedman was not subject to either a suspended or
deferred imposition of sentence. Given that his criminal judg-
ment had been satisfied, Montana had no further supervisory
authority over Friedman. Friedman was not subject to the
requirements of the statute. See State v. Johnson, 108 P.3d
485, 487 (Mont. 2005) (noting that the DNA test requirements
applied to prisoners, and distinguishing the privacy interests
of private citizens); see also United States v. Sczubelek, 402
F.3d 175, 178 (3rd Cir. 2005) (noting in context of federal law
that “[i]f the government no longer has the authority to collect
a DNA sample from [the defendant], there is no need to deter-
mine the constitutionality of taking that sample.”).5
Second, the Montana statute only authorizes the collection
of DNA for placement in the Montana Department of Justice
DNA identification index. Mont. Code Ann. § 44-6-1-102.
When a sample is collected, the sample must be transmitted
5
Nor was Friedman subject under Montana law to further court jurisdic-
tion after the formal term had expired, as was the case under federal law
in Sczubelek, 402 F.3d at 179; see also United States v. Neville, 985 F.2d
992, 995-96 (9th Cir. 1993) (holding under federal statute that even if the
term of supervised release had expired, a district court retained jurisdiction
to hold a hearing and revoke the defendant’s supervised release provided
that some formal revocation proceeding had begun within the term of
supervised release—whether it be a warrant, summons, an order to show
cause, or a petition charging a violation of supervised release.)
7610 FRIEDMAN v. BOUCHER
to the Montana Department of Justice within seven days.
Mont. Code Ann. § 44-6-103(2); Mont. Admin. R. 23.4.503.
Once placed in the Montana index, the DNA records may
only be released on written request by a statutorily qualified
party, on terms and conditions established by the Montana
Department of Justice. Mont. Code Ann. § 44-6-106. DNA
testing records maintained in the index are considered confi-
dential criminal justice information, see Mont. Code Ann.
§ 44-6-108, subject to the strict restrictions on disclosure con-
tained in the Montana Criminal Justice Information Act of
1979, Mont. Code Ann. § 44-5-303. Nevada officials did not
purport to be taking the sample for transmittal to Montana;
rather, they wanted the DNA sample to check against cold
cases in Nevada. There is nothing in the record to indicate that
Nevada transmitted the sample to Montana, or that it subse-
quently sought written permission from Montana for use of
the sample, as required by the Montana Statute.
Third, the Montana Statute does not authorize Defendants
to obtain a DNA sample. The statute explicitly provides: “If
the person is not incarcerated in a facility administered by the
department of corrections, the sample must be provided to a
person or entity designated by the county sheriff.” § 44-6-
103(2) (emphasis added). There is nothing in the record to
indicate that either Boucher or Luzaich were ever designated
by a Montana county sheriff to take Friedman’s DNA sample.6
6
After moving to Las Vegas, Friedman received a letter (“the Montana
Letter”) from Bill Slaughter, of the Montana Department of Corrections.
The letter directed Friedman to provide a DNA sample to Sergeant Tom
Keller of the Clark County Sheriff’s Department in Nevada. The letter
cited the Montana Statute. Defendants argue that this letter gave them
authority to take the DNA sample. However, the letter does not mention
Boucher, Luzaich or the Las Vegas Police Department and was not issued
with the authority of a Montana county sheriff, as would be required by
the statute. Further, the letter was addressed only to Friedman and there
is no evidence on the record that Boucher or Luzaich were even aware of
the letter at the time of the search. Friedman declined to voluntarily pro-
vide a DNA sample, as requested by the letter. Friedman also avers that
FRIEDMAN v. BOUCHER 7611
Fourth, no part of the Montana Statute purports to authorize
any entity or person to take a sample from any subject by
force, as Defendants did in this case. The Montana Statute
requires persons subject to its provisions to “provide” a bio-
logical sample. As discussed above, a “knowing refusal or
failure to provide” is “grounds for revocation of a suspended
or deferred imposition of sentence.” Mont. Code Ann. § 44-6-
103(5). There are no other penalties prescribed for failure to
willingly provide a sample, and the Montana Statute does not
authorize any law enforcement official, either within or out-
side Montana, to extract a DNA sample by force.
[10] Finally, the Montana Statute must be construed in light
of the Constitution of Montana. The Montana Constitution
contains one of the strongest state constitutional protections of
privacy in the Nation. See Mont. Const. art. II, § 10 (“The
right of individual privacy is essential to the well-being of a
free society and shall not be infringed without the showing of
a compelling state interest.”). “Montana’s Constitution affords
citizens broader protection at the hands of the government in
search and seizure cases than does the Federal Constitution.”
State v. Siegal, 934 P.2d 176, 183 (Mont. 1997); see also
Hon. James C. Nelson, The Right to Privacy, 69 Mont. L.
Rev. 257, 259 (2007) (“This [privacy] right in Montana guar-
antees far greater protection from unreasonable searches and
seizures than does the Fourth Amendment to the federal Con-
stitution.”).
[11] In State v. Johnson, the Montana Supreme Court was
not only careful to exclude private citizens from its holding
that the Montana Statute authorized the collection of DNA
he and his attorney consulted with the Montana Attorney General’s Office
and received oral confirmation that Montana would not and could not
enforce compliance with the Montana Statute while Friedman resided as
a private citizen in Nevada. In short, the letter cannot be construed to
invoke the designation provision of the statute.
7612 FRIEDMAN v. BOUCHER
samples, but specifically reserved the question of whether the
Montana Statute could withstand scrutiny under the Constitu-
tion of Montana. 108 P.3d at 487. Thus, whether the Montana
Statute itself would withstand state constitutional scrutiny by
the Montana Supreme Court is an open question. In constru-
ing statutes, “we are governed by the canon of constitutional
avoidance, which requires a statute to be construed so as to
avoid serious doubts as to the constitutionality of an alternate
construction.” Nadarajah v. Gonzales, 443 F.3d 1069, 1076
(9th Cir. 2006). Given the constitutional restrictions applica-
ble to this statute, we are bound to construe it narrowly. A
narrow construction of the Montana Statute cannot possibly
support the extraterritorial, forcible extraction of DNA from
a private citizen of another State, who is not subject to Mon-
tana supervision.
3
For all these reasons, we must reject the government’s reli-
ance on the Montana statute as an exception to the warrant
requirement.
C
Defendants’ final argument is that the search was “reason-
able,” contending that pre-trial detainees have limited privacy
rights that must yield to the desires of law enforcement to col-
lect DNA samples for use in law enforcement databases.
Thus, the reasoning goes, the government has the inherent
right, without a search warrant and without suspicion of crim-
inal activity, to extract DNA forcibly from pre-trial detainees.
However, neither the Supreme Court nor this Court has ever
ruled that law enforcement officers may conduct suspicionless
searches on pretrial detainees for reasons other than prison
security. Indeed, as the Supreme Court stated emphatically in
Schmerber: “The interests in human dignity and privacy
which the Fourth Amendment protects forbid any such intru-
sions on the mere chance that desired evidence might be
FRIEDMAN v. BOUCHER 7613
obtained.” 384 U.S. at 769-70. In contrast to the government’s
position in this case, which would endorse routine, forcible
DNA extraction, the Court concluded: “The importance of
informed, detached and deliberate determinations of the issue
whether or not to invade another’s body in search of evidence
of guilt is indisputable and great.” Id. at 770.
[12] We have long recognized that pre-trial detainees retain
greater privacy interests, for the purposes of Fourth Amend-
ment analysis, than do persons who are incarcerated pursuant
to a valid conviction. See, e.g., Kennedy v. Los Angeles Police
Dep’t, 901 F.2d 702, 714 (9th Cir. 1990) (impliedly overruled
on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991)
(per curiam)) (holding unconstitutional a police policy that
subjected all felony arrestees to visual body-cavity searches);
Ward v. County of San Diego, 791 F.2d 1329, 1333 (9th Cir.
1986) (distinguishing a constitutional strip search policy for
custodial detainees from an unconstitutional one for
arrestees); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.
1984) (per curiam) (overruled on other grounds by Hodgers-
Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en
banc)) (finding unconstitutional a policy of strip searching
arrestees for minor offenses without reasonable suspicion that
the arrestee is carrying or concealing contraband or suffering
from a communicable disease).
[13] We have also carefully confined administrative
searches at detention facilities to those reasonably related to
security concerns. In Kennedy, for example, we held unconsti-
tutional a blanket strip search policy which subjected all fel-
ony arrestees to a visual body cavity search. 901 F.2d at 714.
We noted that “the enacted policy, if it is to be constitutional,
must be ‘reasonably related’ to the penal institution’s interest
in maintaining security.” Id. at 713. Even in Bell v. Wolfish,
441 U.S. 520 (1979), a case upon which the dissent relies, the
Supreme Court repeated its observation that “[t]here is no iron
curtain drawn between the Constitution and the prisons of this
country,” id. at 544 (quoting Wolff v. McDonnell, 418 U.S.
7614 FRIEDMAN v. BOUCHER
539, 555-56 (1974)), but justified the search for contraband at
issue on the basis of the “institution’s interest in maintaining
jail security,” id. at 540. Neither the Supreme Court nor our
court has permitted general suspicionless, warrantless
searches of pre-trial detainees for grounds other than institu-
tional security or other legitimate penological interests. Thus,
there is no support for the government’s contention that Fried-
man’s status as a pre-trial detainee justifies forcible extraction
of his DNA.
Defendants cite a number of appellate cases that uphold the
constitutionality of state DNA bank laws. Not one of those
cases involved a search of a pretrial detainee—as opposed to
a convicted prisoner—or a state law that mandated searches
of pretrial detainees.7 None of these cases uphold a search
similar to the suspicionless one of a pretrial detainee in this
case.
In Kincade and Kriesel, we upheld against Fourth Amend-
ment challenges a federal DNA profiling law and amend-
ments extending that law. However, both of those cases
concerned extracting DNA from convicted felons still under
state supervision. See Kriesel, 508 F.3d at 944 (Kriesel was
on probation); Kincade, 379 F.3d at 821 (Kincade was on
parole). The law at issue required DNA samples “to be col-
lected from individuals in custody and those on probation,
7
See Rise v. Oregon, 59 F.3d 1556, 1558 (9th Cir. 1995) (upholding an
Oregon law requiring persons convicted of murder, a sexual offense, or
conspiracy or attempt to commit a sexual offense to submit a blood sample
for use in a DNA bank); Roe v. Marcotte, 193 F.3d 72, 74 (2d Cir. 1999)
(upholding a Connecticut state law requiring convicted sexual offenders to
submit blood samples to a DNA bank); Schlicher v. Peters, 103 F.3d 940,
941 (10th Cir. 1996) (requiring certain convicted felons to submit blood
and saliva specimens for a DNA bank); Boling v. Romer, 101 F.3d 1336,
1338 (10th Cir. 1996) (upholding a Colorado law requiring inmates con-
victed of a sexual assault offense to provide the state with DNA samples);
Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) (upholding a similar Vir-
ginia law that applies to convicted felons).
FRIEDMAN v. BOUCHER 7615
parole, or supervised release after being convicted of qualify-
ing Federal offenses.” Kriesel, 508 F.3d at 943 (internal quo-
tation marks omitted). The Supreme Court articulated the
rationale for sustaining these types of searches in Samson v.
California, in which the Court upheld a search on the basis of
the plaintiff ’s status as a parolee, citing the requirement of
“intense supervision” of such persons and the problems of
“re-integration” of parolees into society. 547 U.S. 843, 854
(2006).
However, the considerations underlying Sampson, Kincade,
and Kriesel are absent here. Friedman was not on parole. He
had completed his term of supervised release successfully and
was no longer the supervision of any authority. The Nevada
authorities extracted the DNA from Friedman not because
they suspected he had committed a crime, nor to aid in his
reintegration into society, nor as a matter of his continuing
supervision. Their purpose was simply to gather human tissue
for a law enforcement databank, an objective that does not
cleanse an otherwise unconstitutional search.
D
[14] The warrantless, suspicionless, forcible extraction of a
DNA sample from a private citizen violates the Fourth
Amendment. The actions of the officers were not justified
under the “special needs” exception, reliance on an extraterri-
torial statute, or on general Fourth Amendment principles.
The search and seizure of Friedman’s DNA violated the Con-
stitution.
IV
[15] Having determined that the search violated the Consti-
tution, we must next ask whether the constitutional right vio-
lated was clearly established at the time of the search. See
Saucier, 533 U.S. at 201. “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether
7616 FRIEDMAN v. BOUCHER
it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Id. at 202. In other
words, the inquiry is whether a reasonable person could have
believed his actions lawful at the time they were undertaken.
Anderson v. Creighton, 483 U.S. 635, 646 (1987).
The rule that a search violates the Fourth Amendment if it
is not supported by either probable cause and a warrant or a
recognized exception to the warrant requirement has long
been clearly established. See, e.g., Schmerber, 384 U.S. at
770-71. Thus, the real question in determining whether
Defendants are entitled to qualified immunity is whether it
was clearly established, at the time of the search, that such a
search does not fall under any recognized exception. As dis-
cussed above, the only recognized exceptions that the search
could possibly fall under are the special needs exception, the
Montana Statute, or its “reasonableness.”8
[16] No reasonable detective or prosecutor could have
thought that the search was justified under the “special needs”
exception. Under the “special needs” exception, suspicionless
searches are upheld if they are “conducted for important non-
law enforcement purposes in contexts where adherence to the
warrant-and-probable cause requirement would be impractica-
ble.” Kincade, 379 F.3d at 823 (emphasis added). There is no
question that the DNA sample was taken for a law enforce-
ment purpose—Luzaich admitted in court that she wanted the
sample for use in solving “cold cases”—nor is there any ques-
tion that there would have been ample opportunity to obtain
a warrant. Friedman was in custody in Clark County Jail
when the sample was taken. There was no exigency or other
reason that Defendants could not have sought a warrant
8
Additionally, we note that, because the search took place in 2003, nei-
ther Samson, Kincade, nor Kriesler had yet been decided. Therefore
Defendants would have had no basis to conclude that their search was rea-
sonable absent the special needs exception or adherence to the Montana
Statute.
FRIEDMAN v. BOUCHER 7617
before taking the sample, other than the fact that they had no
probable cause on which to base their warrant request. The
lack of probable cause is not itself a justification for conduct-
ing a search without a warrant and probable cause.
[17] No reasonable police detective or prosecutor could
have believed that the Montana Statute authorized a forcible
taking of a DNA sample from a Nevada citizen for Nevada
law enforcement purposes. The reliance on an extraterritorial
statute was not reasonable. As the Supreme Court observed:
“This is so obviously the necessary result of the Constitution
that it has rarely been called in question.” N.Y. Life, 234 U.S.
at 161 (holding that a Missouri statute cannot operate in New
York). Nor was such a reliance reasonable based on a plain
reading of the Montana Statute, as we have discussed in
detail.
[18] Similarly, controlling precedent at the time of the
search disallowed warrantless, suspicionless, non-security
related searches of pre-trial detainees. Our case law precluded
the interpretation that the government could forcibly extract
DNA from all pre-trial detainees as a matter of routine, unre-
lated to facility security considerations. Kennedy, 901 F.2d at
714; Ward, 791 F.2d at 1333; Giles, 746 F.2d at 615. Our cir-
cuit precedent was consistent with the direction of the
Supreme Court that searches invading the human body could
not be justified “on the mere chance that desired evidence
might be obtained.” Schmerber, 384 U.S. at 769-70.
In short, no reasonable detective or prosecutor could have
thought that they could forcibly take a DNA sample from
Friedman without violating his Fourth Amendment rights.
Because Friedman’s rights were clearly established at the time
that Defendants took the sample, the Defendants are not enti-
tled to qualified immunity.
Boucher additionally argues that he is entitled to qualified
immunity because he was acting on Luzaich’s orders. How-
7618 FRIEDMAN v. BOUCHER
ever, when a police officer argues he is entitled to qualified
immunity because he relied on the advice of a prosecutor, it
does not render the officer’s conduct per se reasonable, as
Boucher suggests. See Stevens v. Rose, 298 F.3d 880, 884 (9th
Cir. 2002). Rather, it may be evidence of good faith. Id. How-
ever, if the facts show that the right the officer violated “was
clearly established and would be known to a reasonable offi-
cer in the circumstances,” then the officer is not entitled to
qualified immunity, regardless of the prosecutor’s advice. Id.As we noted in Arnsberg v. United States, 757 F.2d 971, 981
(9th Cir. 1985), where a police officer is acquainted with the
controlling law and does not need the advice of counsel to
assess the legality of his actions, statements made by a prose-
cutor will not shield the officer from liability if he then vio-
lates the law.
Viewing the facts in the light most favorable to Friedman,
as we must at this stage, we conclude that a reasonable officer
in Boucher’s circumstances would have known that forcibly
taking a DNA sample from a pre-trial detainee without a
search warrant or other court authority would violate the
detainee’s clearly established Fourth Amendment rights.9
When a right is clearly established and a reasonable officer
should be familiar with that clearly established law, then the
officer cannot escape liability purely by reliance on a prosecu-
tor’s equally unconstitutional actions.
9
We recognize, however, that on close questions, reliance on the advice
of counsel may be reasonable and constitute evidence of good faith rele-
vant to the determination of qualified immunity. We further recognize that
our conclusions on qualified immunity in this context are solely based on
the facts as alleged and viewed in the light most favorable to the plaintiff.
Our reversal of the district court’s grant of qualified immunity does not
preclude Boucher from filing a summary judgment motion based on quali-
fied immunity once the facts are fully developed through discovery.
FRIEDMAN v. BOUCHER 7619
V
Shackling a detainee, chaining him to a bench, and forcibly
opening his jaw to extract a DNA sample without a warrant,
court order, reasonable suspicion, or concern about facility
security is a violation of the detainee’s clearly established
rights under the Fourth Amendment. Because the forcible tak-
ing of the DNA sample violated Friedman’s clearly estab-
lished constitutional rights, neither Boucher nor Luzaich is
entitled to qualified immunity. We need not, and do not, reach
any other issue urged by the parties on appeal.
REVERSED AND REMANDED.
CALLAHAN, Circuit Judge, dissenting:
I respectfully dissent from the reversal of the district
court’s grant of qualified immunity. The majority’s determi-
nation that Kenneth Friedman (“Friedman”) had a clearly
established right of privacy under the Fourth Amendment to
prevent state authorities from using a buccal swab to take a
DNA sample, fails to appreciate three lines of precedents that
undermine its conclusion. First, both the Supreme Court and
this court have held that incarcerated individuals have little,
if any, expectation of privacy under the Fourth Amendment.
Second, we have also held that a person legitimately in state
custody has almost no right against disclosing his or her iden-
tity. Third, we have held that governments have compelling
interests in establishing the identity of incarcerated repeat sex
offenders. Here, Friedman, a convicted sex offender, was a
pre-trial detainee facing charges of indecent exposure and
open and gross lewd conduct when the state officials took a
buccal swap from the inside of his mouth. In the parlance of
the majority’s opinion, I would hold that this minimally inva-
sive search was “reasonable.”
7620 FRIEDMAN v. BOUCHER
Furthermore, even if these lines of precedent did not com-
pel the conclusion that the search was reasonable, they raise
substantial questions as to Friedman’s right of privacy in this
situation. Pursuant to Saucier v. Katz, 533 U.S. 194, 201
(2001), an officer is entitled to qualified immunity when the
violation was not clearly established. Here, the very fact that
the district court and I disagree with the majority on whether
the search was reasonable, shows that Friedman’s right was
not clearly established, and accordingly, the defendants are
entitled to qualified immunity.1
I.
Friedman is a violent sex offender who has spent a signifi-
cant portion of his life in prison having been convicted of sev-
eral rapes in Ohio and Montana. Friedman’s journey through
the criminal justice system began in Ohio where he was con-
victed in 1975 of felony rape and felony aggravated burglary
and sentenced to a term of four to twenty-five years. After
serving several years in prison, he moved to Montana and
after being arrested and charged in 1980 with a variety of fel-
ony offenses pled guilty to two counts of felony sexual inter-
course without consent, one count of felony aggravated
assault, and three counts of misdemeanor theft. Although
Friedman was originally sentenced to serve forty years in
prison, twenty of those years were later suspended, and he
was designated a “dangerous offender” for purposes of parole
eligibility based on the court’s finding that he presented a
danger to the public.
After completing his Montana prison sentence, Friedman
moved to Las Vegas, Nevada in 2001. The State of Montana’s
Department of Corrections sent a letter to Friedman’s Nevada
residence notifying him that as a designated sex offender he
1
I do not take issue with the majority’s conclusion that Nevada authori-
ties could not rely on Montana Code Annotated section 44-6-103 as statu-
tory authority to collect a DNA sample from Friedman.
FRIEDMAN v. BOUCHER 7621
was required to submit a DNA sample pursuant to Montana
Code Annotated section 44-6-103(1), and that he should con-
tact a sergeant in the Clark County Sheriff’s Department in
Nevada to schedule an appointment to provide a DNA sam-
ple. Friedman never complied.
In August 2002, Las Vegas police officers detained and
questioned Friedman for stalking an individual at a health
club and making a threatening telephone call. They requested
that Friedman provide a DNA sample, which he refused.
Friedman asserts that over the course of the next five months
he was searched or arrested at least a half dozen times by
police officers. On February 10, 2003, Friedman was arrested
and charged with indecent exposure and open and gross lewd
conduct. He was then incarcerated in the Clark County Jail.
Friedman claims that upon his arrest, Las Vegas Metropolitan
Police Department Detective Dolphus Boucher demanded a
DNA sample from him. Friedman refused and no action was
taken. In March 2003, while still a prisoner in the Clark
County Jail awaiting trial on his pending charges, Friedman
was taken to Detective Boucher who once again demanded a
DNA sample. After Friedman refused, Detective Boucher
allegedly told him that he was authorized by Clark County
Deputy District Attorney Elissa Luzaich to take the DNA
sample by force. Acting under this authorization, Detective
Boucher forcibly took a buccal swab of DNA from the inside
of Friedman’s mouth without his consent.
II.
The Fourth Amendment of the United States Constitution
provides that “[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 Fourth Amendment is not triggered unless the
7622 FRIEDMAN v. BOUCHER
state conducts a search or seizure in an area “in which there
is a ‘constitutionally protected reasonable expectation of pri-
vacy.’ ” United States v. Van Poyck, 77 F.3d 285, 290 (9th
Cir. 1996) (quoting New York v. Class, 475 U.S. 106, 112
(1986) (citing Katz v. United States, 389 U.S. 347, 360 (1967)
(Harlan, J., concurring))). The modern test for determining
whether there is a “constitutionally protected reasonable
expectation of privacy” is whether the search or seizure by the
government violates a subjective expectation of privacy that
society objectively recognizes as reasonable.2 Id. We have
previously recognized that the “[n]on-consensual extraction of
blood implicates Fourth Amendment privacy rights.” Rise v.
Oregon, 59 F.3d 1556, 1558-59 (9th Cir. 1995) (citations
omitted). The non-consensual use of a buccal swab, although
significantly less intrusive than a blood sample, still impli-
cates the Fourth Amendment.
The Fourth Amendment, however, does not proscribe all
searches and seizures, but only those that are unreasonable.
Virginia v. Moore, S. Ct. 1598, 1602 (2008). In order to
assess whether a search is reasonable absent individualized
suspicion, we apply the “general Fourth Amendment
approach” and examine the totality of the circumstances in
objective terms “ ‘by assessing, on the one hand, the degree
to which [the search] intrudes upon an individual’s privacy
and, on the other, the degree to which it is needed for the pro-
motion of legitimate governmental interests.’ ” Samson v.
California, 547 U.S. 843, 848 (2006) (quoting United States
v. Knights, 534 U.S. 112, 118-19 (2001)); see also Ohio v.
Robinette, 519 U.S. 33, 39 (1996) (“Reasonableness . . . is
2
For example, the Supreme Court has held that an individual does not
have a reasonable expectation of privacy in attributes exposed to the pub-
lic including one’s voice, United States v. Dionisio, 410 U.S. 1, 14 (1973);
handwriting, United States v. Mara, 410 U.S. 19, 21 (1973); financial
records filed with a bank, United States v. Miller, 425 U.S. 435, 436-37
(1976); and trash left on the curbside, California v. Greenwood, 486 U.S.
35, 37 (1988).
FRIEDMAN v. BOUCHER 7623
measured in objective terms by examining the totality of the
circumstances.”).
A. Expectation of Privacy
Fourth Amendment rights for inmates — whether they are
convicted or pretrial detainees — fall on the lowest end of the
expectation of privacy spectrum. Although we have previ-
ously recognized that prisoners do not leave all of their Fourth
Amendment privacy rights at the jailhouse doors, see Van
Poyck, 77 F.3d at 291 (prisoners’ privacy rights are “severely
curtailed”) (citations omitted), once the doors close, most pri-
vacy rights are left on the jailhouse steps. The state’s use of
a buccal swab to collect a DNA sample implicates two sepa-
rate privacy interests: (1) an interest in bodily integrity impli-
cated by placing a swab in Friedman’s mouth, and (2) a
privacy interest in the identifying information contained in the
DNA. See United States v. Kriesel, 508 F.3d 941, 947-48 (9th
Cir. 2007); United States v. Kincade, 379 F.3d 813, 836-37
(9th Cir. 2004) (en banc) (plurality); Rise, 59 F.3d at 1559-60.
I examine each one separately.
1. The privacy interest in bodily integrity
Time and again, we have stated that the use of a blood test
to take a DNA sample from an individual under state supervi-
sion is a minimal intrusion of one’s bodily integrity under the
Fourth Amendment. See Kriesel, 508 F.3d at 948; Kincade,
379 F.3d at 836-37; Rise, 59 F.3d at 1560. In Kriesel, where
the federal government used a blood test to collect the DNA
sample from a supervised releasee, we noted that the Supreme
Court has held that the intrusion occasioned by a blood test
“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 mini-
mal, and that for most people the procedure involves virtually
no risk, trauma, or pain.’ ” 508 F.3d at 948 (quoting Skinner
v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 625 (1989)).
7624 FRIEDMAN v. BOUCHER
Notably, in finding the intrusion in Kriesel to be minimal, we
stated “the additional privacy implications of a blood test col-
lecting DNA, as opposed to a cheek swab or other mecha-
nism, do not significantly alter our analysis.” Id. Moreover, in
Kincade, we recognized that individuals “in custody have
been lawfully subject to much more severe intrusions of their
corporeal privacy than a sterile blood draw,” like suspicion-
less body cavity searches. 379 F.3d at 837 (citing Bell v. Wolf-
ish, 441 U.S. 520, 558-60 & n.39 (1979) (upholding
suspicionless body cavity searches of pretrial detainees and
convicted prisoners)); see also Rise, 59 F.3d at 1560 (“That
the gathering of DNA information requires the drawing of
blood rather than inking and rolling a person’s fingertips does
not elevate the intrusion upon the plaintiffs’ Fourth Amend-
ment interests to a level beyond minimal.”).3 The state’s use
of a buccal swab to collect DNA cells from the inside of a
pretrial detainee’s mouth is undeniably far less intrusive than
drawing blood and a relatively minor intrusion upon Fried-
man’s expectation of bodily privacy.
2. The privacy interest in identifying information
While Friedman may have a minimal expectation of pri-
vacy when it comes to his bodily integrity as a result of the
use of a buccal swab, he has even less of an expectation when
it comes to a privacy interest in the identifying information
contained in the DNA. Of course, a law enforcement agent
cannot generally approach law-abiding citizens on the street
and forcibly take fingerprint evidence absent some type of
3
As Judge Easterbrook has observed, a DNA blood test is “no different
from use of a fingerprint; only the method of obtaining the information
differs, and for prisoners that is a distinction without importance.” Green
v. Berge, 354 F.3d 675, 680 (7th Cir. 2004) (Easterbrook, J., concurring);
see also Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir. 2005) (“In the
prison context, where inmates are routinely subject to medical procedures,
including blood draws, and where their expectation of bodily privacy,
while intact, is diminished, the intrusiveness of a blood draw is even fur-
ther minimized”).
FRIEDMAN v. BOUCHER 7625
individualized suspicion. See Rise, 59 F.3d at 1559. We have
stated, however, that “in the fingerprinting context, there
exists a constitutionally significant distinction between the
gathering of fingerprints from free persons to determine their
guilt of an unsolved criminal offense and the gathering of fin-
gerprints for identification purposes from persons within the
lawful custody of the state.” Id. at 1560. Once an individual
is lawfully arrested based upon probable cause, his identifica-
tion becomes a matter of legitimate state interest, and he can-
not claim privacy in it. See Kincade, 379 F.3d at 837; see also
Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413-14 (5th
Cir. 2004) (“Though, like fingerprinting, collection of a DNA
sample for purposes of identification implicates the Fourth
Amendment, persons incarcerated after conviction retain no
constitutional privacy interest against their correct identifica-
tion.”); Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992)
(“We have not been made aware of any case, however, estab-
lishing a per se Fourth Amendment requirement of probable
cause, or even a lesser degree of individualized suspicion,
when government officials conduct a limited search for the
purpose of ascertaining and recording the identity of a person
who is lawfully confined to prison.”).
We have applied this same reasoning in the context of
DNA identification.A “DNA profile . . . establishes only a
record of the defendant’s identity — otherwise personal infor-
mation” in which somebody lawfully arrested can claim no
right of privacy. Kincade, 379 F.3d at 837; see also Rise, 59
F.3d at 1559 (“The information derived from [a DNA] blood
sample is substantially the same as that derived from finger-
printing — an identifying marker unique to the individual
from whom the information is derived.”). In fact, we have
stated that “[t]hose who have suffered a lawful conviction
lose an interest in their identity to a degree well-recognized as
sufficient to entitle the government permanently to maintain
a verifiable record of their identity.”4 Kincade, 379 F.3d at
4
It also bears mentioning that Nevada’s DNA collection statute, Nev.
Rev. Stat. § 176.0913(6), makes it illegal to make any unauthorized dis-
closure of biological specimens taken pursuant to the collection statute.
7626 FRIEDMAN v. BOUCHER
837 n.32. Although Friedman had not been convicted of the
offense for which he was being held when the DNA sample
was collected, he was a repeat sex offender, which as noted
in the next section provided the government with an addi-
tional interest in establishing his identity.
B. Legitimate Governmental Interests
Friedman’s minimal expectation of privacy must be
weighed against the state’s compelling interests in collecting
a DNA sample from an incarcerated sex offender. Similar to
fingerprinting, we have recognized that the use of DNA as a
means of identification of individuals within the state’s cus-
tody is a significant governmental interest. Id. at 837; Rise, 59
F.3d at 1560. Other circuits agree. The Fourth Circuit has
observed:
It is a well recognized aspect of criminal conduct
that the perpetrator will take unusual steps to conceal
not only his conduct, but also his identity. Disguises
used while committing a crime may be supple-
mented or replaced by changed names, and even
changed physical features. Traditional methods of
identification by photographs, historical records, and
fingerprints often prove inadequate. The DNA, how-
ever, is claimed to be unique to each individual and
cannot, within current scientific knowledge, be
altered. The individuality of the DNA provides a
dramatic new tool for the law enforcement effort to
match suspects and criminal conduct. Even a suspect
with altered physical features cannot escape the
match that his DNA might make with a sample con-
tained in a DNA bank, or left at the scene of a crime
within samples of blood, skin, semen or hair folli-
cles. The governmental justification for this form of
identification, therefore, relies on no argument dif-
ferent in kind from that traditionally advanced for
taking fingerprints and photographs, but with addi-
FRIEDMAN v. BOUCHER 7627
tional force because of the potentially greater preci-
sion of DNA sampling and matching methods.
Jones, 962 F.2d at 307; see also United States v. Sczubelek,
402 F.3d 175, 185-86 (3d Cir. 2005) (quoting and adopting
language in Jones).
The fact that Friedman is a convicted sex offender provided
Nevada with additional reasons for seeking a DNA sample.
The state has a significant interest in monitoring sex offenders
and solving crimes. “Sex offenders are a serious threat in this
Nation.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4
(2003) (quoting McKune v. Lile, 536 U.S. 24, 32 (2002) (plu-
rality opinion)). “[T]he victims of sex assault are most often
juveniles,” and “[w]hen convicted sex offenders reenter soci-
ety, they are much more likely than any other type of offender
to be re-arrested for a new rape or sexual assault.” Id. (quot-
ing McKune, 536 U.S. at 32-33). DNA profiling also has a
deterrent effect that “fosters society’s enormous interest in
reducing recidivism.” Kincade, 379 F.3d at 838-39. In addi-
tion, we have stated that the collection of DNA for use in a
data bank “advances the overwhelming public interest in pros-
ecuting crimes accurately — DNA evidence can exculpate an
accused just as effectively as it can inculpate him.” Rise, 59
F.3d at 1561. In addition to solving past crimes, “DNA profil-
ing . . . helps bring closure to countless victims of crime who
long have languished in the knowledge that perpetrators
remain at large.” Kincade, 379 F.3d at 839.
For these reasons, I would find that our case law leads to
a conclusion that a lawfully incarcerated individual, particu-
larly a repeat sex offender like Friedman, does not have a
Fourth Amendment right to prevent state authorities from
using a buccal swab to take a DNA sample. I do not agree
with the majority’s suggestion that gathering DNA for a “law
enforcement databank” is not in itself sufficient to allow the
minimally intrusive invasion of a buccal swap of a person
legally in state custody. The majority also implies that there
7628 FRIEDMAN v. BOUCHER
were no security concerns that supported the forcible taking
of DNA from Friedman, a pre-trial detainee. The inherent
import of these assertions, however, is the implication —
which, as indicated, I think is correct under our case law —
that the defendants could forcibly take a DNA sample from
Friedman if he were a convicted prisoner or if there was a
security concern. Friedman, however, was being held in the
county jail and it is self-evident that the jailers’ concerns with
security extend to all inmates, both those that have been con-
victed and those that are awaiting trial. Moreover, despite
Deputy District Attorney Luzaich’s subsequent assertion that
she sought the DNA sample to investigate cold cases, a rea-
sonable officer in Detective Boucher’s position may well have
thought there was a security reason for taking a DNA sample.
The distinctions asserted by the majority suggests that
defendants would not have violated Friedman’s right to pri-
vacy if the DNA sample had been taken pursuant to security
reasons, but they did violate his rights because Attorney Luza-
ich subsequently voiced what the majority considers a less
compelling reason. This, however, begs the question of
whether Friedman had a reasonable expectation of privacy. If
Friedman, because he is a repeat sex offender and because he
was legally in custody, did not have a reasonable expectation
of privacy, taking a DNA sample did not violate the constitu-
tion, regardless of the weight of the state’s interest in doing
so.5
Accordingly, I conclude that the defendants did not violate
Friedman’s Fourth Amendment rights.
5
This does not mean that a state could arbitrarily take a DNA sample
by force. Rather, I do not think that the constitutionality of doing so turns
on which of a state’s valid interests is cited for taking a DNA sample from
an incarcerated repeat sex offender.
FRIEDMAN v. BOUCHER 7629
III.
We need not, however, determine whether the use of a buc-
cal swab to take a DNA sample from Friedman was as a mat-
ter of law and fact a violation of the Fourth Amendment. The
only issue before this court in this appeal is whether the
defendants are entitled to qualified immunity. As noted by the
majority, 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 (2001). The initial question is
whether “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Id. Even if this ques-
tion is answered in the affirmative, an employee is still enti-
tled to qualified immunity if the constitutional right was not
clearly established. Id. Recently, the Supreme Court indicated
that the two-prongs need not always be answered in order. In
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), the Supreme
Court stated that “[t]he judges of the district courts and the
courts of appeals should be permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the cir-
cumstances in the particular case at hand.”
Even if one does not read our decisions in Kriesel, Kincade
and Rise as authorizing a state to take a DNA sample from an
incarcerated repeat sex offender for identification purposes,
the defendants are entitled to qualified immunity because the
law is not clearly established. To reject a defense of qualified
immunity, the Supreme Court has instructed that we must find
that “the contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987); see also Saucier, 533 U.S. at 201-02.
Several decisions by the Supreme Court over the past three
decades call into question whether inmates maintain any
expectation of privacy under the Fourth Amendment. In Bell
7630 FRIEDMAN v. BOUCHER
v. Wolfish, 441 U.S. 520, the Supreme Court assumed that
convicted prisoners and pretrial detainees “retain some Fourth
Amendment rights upon commitment to a corrections facili-
ty,” and held nevertheless that they lose a right of privacy
from unannounced searches of their cells and routine body
cavity searches. Id. at 558-60; see also Hudson v. Palmer, 468
U.S. 517, 526 (1984) (noting that “society is not prepared to
recognize as legitimate any subjective expectation of privacy
that a prisoner might have in his prison cell”).
More recently, the Supreme Court in Samson v. California,
547 U.S. 843, indicated in dicta that individuals legally in
custody may not have an expectation of privacy under the
Fourth Amendment.6 Applying a totality of the circumstances
analysis, the Court held that the Fourth Amendment does not
prohibit law enforcement from conducting a suspicionless
search of a parolee who, under California law, was “subject
to search or seizure by [law enforcement] at any time of the
day or night, with or without a search warrant and with or
without cause.” Id. at 846. Critical to the Court’s analysis was
its conclusion that parolees have “severely diminished expec-
tations of privacy by virtue of their status alone,” which must
yield to the substantial state interest of reducing recidivism.
Id. at 851-54. The majority defended its determination that
“parolees are more akin to prisoners than probationers”
against the dissent’s characterization that it was improperly
“equat[ing] parolees with prisoners for the purpose of con-
cluding that parolees, like prisoners, have no Fourth Amend-
ment rights.” Id. at 850 n.2 (citing id. at 861 (Stevens, J.,
dissenting) (explaining the majority’s logic that “[p]risoners
have no legitimate expectation of privacy; parolees are like
6
We also have recognized that the contours of whether a prisoner has
any Fourth Amendment rights are not clear. See Somers v. Thurman, 109
F.3d 614, 617-18 (9th Cir. 1997) (stating that the Supreme Court “may
have intended to strip the inmates of all Fourth Amendment privacy
rights”); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997) (“The
Supreme Court has not decided whether prison inmates retain rights cogni-
zable under the Fourth Amendment.”).
FRIEDMAN v. BOUCHER 7631
prisoners; therefore, parolees have no legitimate expectation
of privacy”)). The Supreme Court’s extension of case law
concerning prisoners to cover parolees certainly suggests that
case law concerning convicted prisoners applies to pre-trial
detainees.
In light of these Supreme Court decisions, and our recent
opinions, I think that a reasonable detective and prosecutor
could well have thought that forcibly taking a buccal swap of
Friedman’s inner check was justified.7 I am not aware of any
case that holds that a pre-trial detainee has a Fourth Amend-
ment right to prevent the state from using a buccal swab to
collect a DNA sample. As noted, circuit precedent recognizes
that individuals in the lawful custody of the state cannot claim
an expectation of privacy under the Fourth Amendment in
their identification. See Kincade, 379 F.3d at 837; Rise, 59
F.3d at 1559-60 (recognizing that even the “merely accused”
are subject to identification procedures). Moreover, the use of
a buccal swab is, at most, an extremely minor intrusion upon
a pretrial detainee’s expectation of privacy in his bodily integ-
rity, since he is subject to body cavity searches, strip searches,
and blood draws. See Kriesel, 508 F.3d at 948; Kincade, 379
F.3d at 836-37; Rise, 59 F.3d at 1560. Although the defen-
dants’ actions may not have been in compliance with applica-
ble state statutes governing the collection of DNA samples,
7
The majority’s observation that because the most recent relevant cases
were decided after the buccal swap was taken in 2003, the defendants
could not rely on those decisions to support their actions (Maj. Op. at
7616, n.8), is troubling for several reasons. First, it seems to assume that
cases such as Samson, Kincade, and Kriesel, eroded an inmate’s pre-
existing Fourth Amendment right against having a buccal swap taken.
Second, it suggests a focus on the intent of these particular defendants,
instead of a reasonable officer. See Saucier, 533 U.S. at 202 (“The rele-
vant, dispositive inquiry in determining whether a right is clearly estab-
lished is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.”). Third, it would lead to
problematic result of imposing civil liability on an officer for violating a
constitutional right that the courts subsequently determined did not really
exist.
7632 FRIEDMAN v. BOUCHER
there is no clearly established law that compels a conclusion
that the defendants violated Friedman’s Fourth Amendment
rights.
Accordingly, although I would hold that Friedman has not
suffered a Fourth Amendment violation, at a minimum, I
would find that the defendants are entitled to qualified immu-
nity because there is no clearly established law holding other-
wise.
IV.
This is an appeal from a grant of qualified immunity. In
Pearson, the Supreme Court indicated that an appellate court
of appeals could affirm a grant of qualified immunity if either
of the two prongs of the Saucier test was not met. 129 S. Ct.
at 818. I would find, that an in-custody repeat sex offender,
like Friedman, does not have a reasonable expectation of pri-
vacy under the Fourth Amendment to prevent state authorities
from using a buccal swab to take a DNA sample. However,
even were the majority’s contrary position reasonable, the
grant of qualified immunity nonetheless should be affirmed
because the alleged constitutional violation defined by the
majority was not clearly established. Accordingly, I dissent
from the majority’s vacation of the district court’s grant of
qualified immunity.