United States v. Thomas Cameron Kincade

HAWKINS, Circuit Judge,

dissenting:

We are asked whether the forced extraction of blood from certain convicted felons, as a condition of supervised release and for the purpose of retention without time limit in a national DNA database, violates the Fourth Amendment. My colleagues have written exhaustively and well on the subject. My purpose is not necessarily to replow their ground, but to set forth my own thoughts on this difficult question.

Asking convicted felons to provide proof of identity, whether by fingerprint or DNA sample, should be viewed, as Judges Gould and Reinhardt both persuasively argue, through the lens of the “special needs” doctrine. In the abstract, I have no quarrel with the notion that this could be a reasonable exercise of government power under contemporary Fourth Amendment standards. The forcible extraction of blood, however, not mandated by Congressional command, but by dictates of law enforcement efficiency, is different. Beginning with Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court has recognized that while a lawfully arrested person may have lessened expectations of privacy and be subject to other searches incident to arrest, no one is required to submit to “intrusions beyond the body’s surface” absent a “clear indication” that the desired evidence would be found by such a search. Id. at 769-70, 86 S.Ct. 1826; see also Skinner v. Ry. Labor Executives’ Ass’n., 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“[I]t is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.”). While convicted felons certainly have lessened expectations of privacy, the legitimate governmental needs identified by the majority and by Judge Gould simply do not, in my view, justify this particular type of intrusive, suspicionless search.

Judge Gould properly questions whether it is reasonable to retain the sample beyond the period of supervised release — in perpetuity, according to this record. I agree with Judge Reinhardt, however, that this case does present that issue. Although Kincade is currently on supervised release, we cannot ignore that the data obtained from him while in that status will be stored and used long beyond that period of time. This use will not serve the special needs identified by Judge Gould, but the “general interest in law enforcement” that the Court has held cannot justify suspicionless searches. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 79, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001).¹

Enforcing the Constitution is neither a popularity contest nor a polling exercise. The Bill of Rights restrains government power and, along with it, law enforcement efficiency. In a world unrestrained by our Fourth Amendment, every citizen, convicted or not, might be forced to supply a DNA sample. More crimes would undoubtedly be solved, just as would be the case if there were no warrant requirement. But that is not the world that Mr. Madison and the First Congress created for us. I sincerely hope that the drastic consequences Judge Reinhardt projects will not come to pass. I do, however, agree that the DNA Act as currently implemented— forcible extraction of blood and retention without limitation — violates the Fourth Amendment. Therefore, I respectfully dissent.

1 . While Ferguson and most of the Court's special needs cases have involved the population at large, rather than those on supervised release, I do not believe that distinction carries the day; as Judge Reinhardt notes, the privacy expectations of convicted felons are reduced, not eliminated.