United States v. Thomas Cameron Kincade

We must decide whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes.

* A

Pursuant to the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), Pub.L. No. 106-546, 114 Stat. 2726 (2000), individuals who have been convicted of certain federal crimes1 and who are incarcerated, or on parole, probation, or supervised release2 must provide federal authorities with "a tissue, fluid, or other bodily sample ... on which a[n] ... analysis of th[at sample's] deoxyribonucleic acid (DNA) identification information" can be performed. 42 U.S.C. §§ 14135a(c)(1)-(2); id. at §§ 14135a(a)(1)-(2). Because the Federal Bureau of Investigation ("the Bureau") considers DNA information derived from blood samples to be more reliable than that obtained from other sources (in part because blood is easier to test and to preserve than hair, saliva, or skin cells), Bureau guidelines require those in federal custody and subject to the DNA Act ("qualified federal offenders") to submit to compulsory blood sampling. See Nancy Beatty Gregoire, Federal Probation Joins the World of DNA Collection, 66 Fed. Probation 30, 31 (2002). Failure "to cooperate in the collection of that sample [is] ... a class A misdemeanor," punishable by up to one year's imprisonment and a fine of as much as $100,000. 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571 & 3581.3

Once collected by a phlebotomist, qualified federal offenders' blood samples are turned over to the Bureau for DNA analysis-the identification and recording of an individual's "genetic fingerprint."4 Through the use of short tandem repeat technology ("STR"), the Bureau analyzes the presence of various alleles5 located at 13 markers (or loci) on DNA present in the specimen. These STR loci are each found on so-called "junk DNA" — that is, non-genic stretches of DNA not presently recognized as being responsible for trait coding6 — and "were purposely selected because they are not associated with any known physical or medical characteristics." H.R.Rep. No. 106-900(I) at *27. Because there are observed group variances in the representation of various alleles at the STR loci, however, DNA profiles derived by STR may yield probabilistic evidence of the contributor's race or sex. Future of Forensic DNA Testing 35, 39-42.7 Even so, DNA profiles generated by STR are highly individuated: Due to the substantial number of alleles present at each of the 13 STR loci (between 7 and 20, see Future of Forensic DNA Testing 41) and wide-spread variances in their representation among human beings, the chance that two randomly selected individuals will share the same profile are infinitesimal — as are the chances that a person randomly selected from the population at large will present the same DNA profile as that drawn from crime-scene evidence. See Future of Forensic DNA Testing 19-22, 39-42.

Once STR has been used to produce an individual's DNA profile, the resulting record8 is loaded into the Bureau's Combined DNA Index System ("CODIS") — a massive centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons. 42 U.S.C. §§ 14132(a)-(b).9 As of March 2004, CODIS contained DNA profiles drawn from 1,641,076 offenders and 78,475 crime scenes. Fed. Bureau of Investigation, NDIS Statistics, available at http:// www.fbi.gov/hq/lab/codis/clickmap.htm (last visited May 11, 2004). Of those profiles, 298,767 offender records and 10,270 forensic samples originated in the states comprising the Ninth Circuit. See id.

CODIS can be used in two different ways. First, law enforcement can match one forensic crime scene sample to another forensic crime scene sample, thereby allowing officers to connect unsolved crimes through a common perpetrator. Second, and of perhaps greater significance, CODIS enables officials to match evidence obtained at the scene of a crime to a particular offender's profile. In this latter capacity, CODIS serves as a potent tool for monitoring the criminal activity of known offenders. Through March 2004, Bureau data indicated that CODIS has aided some 16,160 investigations nationwide — 1,710 within the Ninth Circuit. Fed. Bureau of Investigation, Investigations Aided, available at http://www.fbi.gov/hq/lab/codis/aidedmap.htm (last visited May 11, 2004).

On July 20, 1993, driven by escalating personal and financial troubles, decorated Navy seaman Thomas Cameron Kincade robbed a bank using a firearm in violation of 18 U.S.C. §§ 2113(a) & (d) and 18 U.S.C. § 924(c)(1). He soon pleaded guilty to those charges and was sentenced to 97 months' imprisonment, followed by three years' supervised release. Among others, terms of his release required him to participate in an outpatient substance abuse program; not to commit another federal, state, or local crime; and to follow the instructions of his probation officer.

Shortly after his August 2000 release from federal prison, Kincade submitted a urine sample which tested positive for cocaine. A warrant was issued for his arrest in early October, and on November 13, the district court reinstated Kincade's original term of supervision. In April 2001, Kincade admitted relapsing into cocaine abuse and requested placement in a residential drug treatment program. No action was taken on his request, and on May 21 and May 28, 2001, Kincade again submitted cocaine-positive urine samples. As a result, the district court modified the terms of Kincade's supervised release on June 7, 2001 to include treatment in a residential drug program. Thereafter, Kincade appears to have begun making progress in reforming his life.10

On March 25, 2002, Kincade's probation officer asked him to submit a blood sample pursuant to the DNA Act.11 He refused, eventually explaining that his objections were purely a matter of personal preference — in his words," not a religious conviction."12 Kincade's probation officer suggested he contact his attorney for advice, and also explained that if he changed his mind he could submit a blood sample on April 16, 2002. On April 4, 2002, Kincade notified the Probation Office of his intention not to comply and, as promised, he refused to appear for DNA profiling on April 16. On May 7, 2002, Kincade's probation officer again contacted him in an effort to determine whether there was some way they could work through the issue. Kincade indicated that he would comply with the requirements of the DNA Act only if threatened with imposition of a significant term of incarceration. Lacking any alternative, Kincade's probation officer informed the district court that Kincade had refused to submit the blood sample required by the DNA Act. He also recommended revocation of Kincade's supervised release, and re-incarceration.

In briefing to the district court prior to a scheduled revocation hearing, Kincade challenged the constitutionality of the DNA Act on grounds that it violated the Ex Post Facto Clause, the Fourth Amendment, and separation of powers principles embodied in Article III and the Due Process Clause.13 On July 15, 2002, Kincade appeared at a revocation hearing before U.S. District Judge Dickran Tevrizian. After stating on the record that he was inclined to hold the DNA Act constitutional, Judge Tevrizian offered Kincade another opportunity to submit to DNA profiling in lieu of proceeding with the revocation hearing. Kincade consulted with counsel, who quickly informed the court that Kincade had again declined to reconsider his refusal to submit to DNA profiling.

Following argument, Judge Tevrizian rejected Kincade's constitutional challenges to the DNA Act. Concluding that Kincade had violated the terms of his supervised release by refusing to follow his Probation officer's lawful instruction to provide a blood sample, Judge Tevrizian sentenced Kincade to four months' imprisonment and two years' supervised release. Judge Tevrizian immediately stayed Kincade's sentence of imprisonment, and we expedited review of his appeal. On April 14, 2003 — while this appeal was pending, and while Kincade was serving his additional supervised release — Kincade again tested positive for drug use. Consequently, Judge Tevrizian lifted his stay of Kincade's sentence and, once in custody, Kincade finally was forced to submit to DNA profiling. He persists in his challenge to the Act.

While "[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology," Kyllo v. United States, 533 U.S. 27, 33-34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), we begin — as always — with first principles.14

* Pursuant to the Fourth Amendment,"[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 touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).15

Ordinarily, the reasonableness of a search depends on governmental compliance with the Warrant Clause, which requires authorities to demonstrate probable cause to a neutral magistrate and thereby convince him to provide formal authorization to proceed with a search by issuance of a particularized warrant. United States v. United States Dist. Ct., 407 U.S. 297, 315-16, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); see also Groh v. Ramirez, 540 U.S. 551, ___, 124 S.Ct. 1284, 1290-91, 157 L.Ed.2d 1068 (2004). However, the general rule of the Warrant Clause is not unyielding. Under a variety of conditions, law enforcement may execute a search without first complying with its dictates. For instance, police may execute warrantless searches incident to a lawful arrest: It is reasonable for authorities to search an arrestee for weapons that might threaten their safety, or for evidence which might be destroyed. See, e.g., Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); see also Thornton v. United States, 541 U.S. ___, 124 S.Ct. 2127, 2132, 158 L.Ed.2d 905 (2004). And even outside the context of a lawful arrest supported by probable cause, officers are likewise authorized to conduct a warrantless protective pat-down of individuals they encounter in the field so long as their concerns are justified by reasonable suspicion of possible danger. See, e.g., Terry, 392 U.S. at 27, 88 S.Ct. 1868.

The Court has also sanctioned several general search regimes that are free from the usual warrant-and-probable cause requirements. Though not necessarily mutually-exclusive, three categories of searches help organize the jurisprudence. The first can be called "exempted areas." Included here are searches conducted at the border,16 in prisons,17 and at airports and entrances to government buildings.18

The second category is typically labeled "administrative" searches, though it has not always been given that label.19 This class includes inspections of closely-regulated businesses, see, e.g., Burger, 482 U.S. at 702-04, 107 S.Ct. 2636 ("[W]here the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment."); United States v. Biswell, 406 U.S. 311, 317, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), and extends to other routine regulatory investigations. See, e.g., Camara v. Mun. Ct. of S.F., 387 U.S. 523, 535-539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (authorizing municipal "area inspections" designed to monitor compliance with building safety codes).

A final category of suspicionless searches is referred to as "special needs," and in recent years, the Court has devoted increasing attention to the development of the accompanying analytical doctrine. See Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (upholding a highway checkpoint designed to enable police to question citizens about a recent crime); Bd. of Educ. v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (upholding a program that subjected all students participating in extracurricular activities to submit to random, suspicionless drug testing); Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (invalidating a public hospital's non-consensual drug testing of maternity patients); Edmond, 531 U.S. at 48, 121 S.Ct. 447 (invalidating a roadside checkpoint designed to discover and interdict illegal drugs); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (upholding a program subjecting student athletes to random, suspicionless drug testing); see also Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (upholding suspicionless drug testing of certain U.S. Customs officials); Skinner, 489 U.S. at 634, 109 S.Ct. 1402 (upholding compulsory blood and urine tests of railroad employees involved in certain train accidents); Griffin, 483 U.S. at 879-80, 107 S.Ct. 3164 (upholding a warrant-less search of a probationer's residence).

For the most part, these cases involve searches conducted for important non-law enforcement purposes in contexts where adherence to the warrant-and-probable cause requirement would be impracticable. Thus, the Court explained in New Jersey v. T.L.O. that "preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult." 469 U.S. at 339, 105 S.Ct. 733. At the same time, the Court explained, the warrant and probable cause requirements are ill-suited to the pressing needs of public schools. Id. at 339-40, 105 S.Ct. 733. The Justices therefore found "that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject," and held that "legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." Id. at 340-41, 105 S.Ct. 733. As Justice Blackmun described the Court's rationale in his concurring opinion, it was the school environment's "special needs, beyond the normal need for law enforcement, [that] ma[d]e the warrant and probable-cause requirement impracticable." Id. at 351, 105 S.Ct. 733 (Blackmun, J., concurring).

* Almost as soon as the "special needs" rationale was articulated, however, the Court applied special needs analysis in what seemed — at least on the surface — to be a clear law enforcement context. At issue in Griffin was a warrantless search of a probationer's home, instigated and carried out under the direction of law enforcement officials acting with what appeared to be pure law enforcement motives. The facts of the search are particularly illuminating. In early 1983, a detective in the Beloit, Wisconsin police department contacted Griffin's probation officer's supervisor with information that Griffin might have weapons in his apartment. Unable to secure the cooperation of Griffin's own probation officer in the execution of a search, the supervisor enlisted another probation officer for assistance and promptly accompanied three plainclothes policemen to Griffin's apartment. The ensuing search uncovered a weapon, Griffin, 483 U.S. at 871, 107 S.Ct. 3164, and Griffin was arrested and charged with possession of a firearm by a felon. He eventually moved to suppress the evidence uncovered during the warrantless search of his residence. Id. at 872, 107 S.Ct. 3164.

On eventual appeal to the Supreme Court, the Justices explained:

A State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents `special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.... [I]t is always true of probationers (as we have said it to be true of parolees) that they do not enjoy the absolute liberty to which every citizen is entitled, but only conditional liberty properly dependent on observance of special probation restrictions. These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.

Id. at 873-75, 107 S.Ct. 3164 (citations, quotations, and alterations omitted). Carefully noting that these "special needs" — operation of a system of conditional release characterized by close supervision of convicted offenders — did not operate wholly to eliminate the Fourth Amendment rights of those subject to its strictures, the Court observed that the probation context nonetheless necessitated a relaxation of the usual warrant-and-probable cause requirement. Id. at 876-79, 107 S.Ct. 3164.

In such circumstances it is both unrealistic and destructive of the whole object of the continuing probation relationship to insist upon the same degree of demonstrable reliability of particular items of supporting data, and upon the same degree of certainty of violation, as is required in other contexts. In some cases — especially those involving drugs or illegal weapons — the probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society.

Id. at 879, 107 S.Ct. 3164. Thus, the Court concluded, the Constitution permits the execution of probation and parole searches based on no more than reasonable suspicion-even where the search at issue is triggered by law enforcement information and motivated by apparent law enforcement purposes. Id. at 880, 107 S.Ct. 3164.

Notwithstanding Griffin's apparent focus on the crucial law enforcement goals of probation and parole,20 however, the Court's more recent "special needs" cases have emphasized the absence of any law enforcement motive underlying the challenged search and seizure. Two cases are particularly noteworthy. In Edmond, the Court addressed whether the Indianapolis, Indiana police department lawfully could operate a program of random vehicle checkpoints in an effort to interdict illegal drugs. Under the program, officers randomly would stop passing vehicles at several locations throughout the city. Once a vehicle was detained, officers would request its driver's license and registration, conduct a non-invasive visual inspection of the car's interior, and lead a narcotics-detention dog around the vehicle's exterior. Edmond, 531 U.S. at 35, 121 S.Ct. 447. During the program's operation, police temporarily detained more than 1100 vehicles and arrested approximately 100 individuals (approximately half for drug violations and half for other offenses). Two of the detained motorists eventually sued, alleging that such suspicionless law enforcement detentions violated the Fourth Amendment.

Siding with the motorists, the Court explained that it had never approved a checkpoint program "whose primary purpose was to detect evidence of ordinary criminal wrongdoing." Id. at 38, 121 S.Ct. 447. To reach that conclusion, the Court had to distinguish two precedents: United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), which upheld suspicionless border checkpoints designed to intercept illegal aliens, and Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), which upheld suspicionless roadside sobriety checkpoints. To do so, the Court explained that the former was justified by a unique government interest in border control, id. at 37-39, 41, 121 S.Ct. 447, and the latter by "the type of immediate, vehicle-bound threat to life and limb" posed by drunk drivers. Id. at 39, 43, 121 S.Ct. 447. In contrast, Indianapolis's program was justified "only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime." Id. at 44, 121 S.Ct. 447. In such circumstances, the Court flatly "decline[d] to suspend the usual requirement of individualized suspicion." Id.

Edmond's emphasis on the non-law enforcement focus of sustainable suspicionless searches was soon strengthened in Ferguson. There, the Court addressed whether a public hospital lawfully could share pregnant women's positive drug tests with law enforcement in an effort to help solve the epidemic of "crack babies." Ten mothers arrested because of the hospital's collaboration with the police eventually sued the hospital and the City of Charleston, South Carolina, alleging that the Fourth Amendment forbids suspicionless drug screening of their urine for law enforcement purposes. Ferguson, 532 U.S. at 71-73, 121 S.Ct. 1281.

As in Edmond, the Court again sided with the plaintiffs. It began by observing that the infringement occasioned by the hospital's sharing private medical data with law enforcement constituted a far more egregious intrusion into patients' privacy rights than the suspicionless urinalyses upheld in the Court's prior drug testing cases:

In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. The use of an adverse test result to disqualify one from eligibility for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such results to third parties. The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with non-medical personnel without her consent. In none of our prior cases was there any intrusion upon that kind of expectation.

Id. at 78, 121 S.Ct. 1281.

Crucially, the Court continued, the hospital's program also had purposes clearly distinguishable from those of the Court's other urinalysis cases:

In each of those earlier cases, the `special need' that was advanced as a justification for the absence of a warrant or individualized suspicion was one divorced from the State's general interest in law enforcement.... In this case, however, the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment.

Id. At bottom, because "the immediate objective of the searches was to generate evidence for law enforcement purposes," id. at 83, 121 S.Ct. 1281 (emphasis in original),21 and in light of "the extensive involvement of law enforcement officials at every stage of the policy," id. at 84, 121 S.Ct. 1281, the Court concluded that "this case simply does not fit within the closely guarded category of `special needs.'" Id.

While these recent cases may seem to be moving toward requiring that any search conducted primarily for law enforcement purposes must be accompanied by at least some quantum of individualized suspicion, the Court signaled the existence of possible limitations in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). At issue there was a warrantless search of a probationer long suspected of having committed crimes targeting Pacific Gas & Electric ("PG & E") facilities. Shortly after Knights was placed on probation for an unrelated drug offense, an arson targeting a PG & E electrical transformer caused approximately $1.5 million in damage. Id. at 114-15, 122 S.Ct. 587.

On a hunch that Knights may have been involved (some prior crimes against PG & E had coincided with Knights's court appearances), a sheriff's deputy established surveillance of Knights's apartment. In the wee hours, he observed Knights's suspected accomplice leave the apartment carrying three cylindrical items-potential pipe bombs-toward a nearby waterway. Shortly thereafter, the deputy heard three splashes, and watched Knights's compatriot return empty-handed to the residence before driving away. Id. at 115, 122 S.Ct. 587