United States v. Thomas Cameron Kincade
379 F.3d 813, 2004 U.S. App. LEXIS 17191 (2004)
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Rule of Law:
The compulsory, suspicionless collection of a DNA sample from a federal offender on conditional release is a reasonable search under the Fourth Amendment when assessed under the totality of the circumstances, given the offender's diminished expectation of privacy and the government's significant interests in monitoring offenders and solving crimes.
Facts:
- In 1993, Thomas Cameron Kincade robbed a bank using a firearm.
- Kincade pleaded guilty and was sentenced to 97 months' imprisonment, followed by three years of supervised release.
- After his release from prison in August 2000, Kincade violated the terms of his supervision on multiple occasions by testing positive for cocaine.
- On March 25, 2002, while still on supervised release, Kincade's probation officer instructed him to submit a blood sample for DNA profiling pursuant to the DNA Analysis Backlog Elimination Act of 2000 (DNA Act).
- Kincade refused to provide the blood sample, stating his objections were a matter of personal preference and not based on religious conviction.
- Despite being given multiple opportunities to comply, Kincade continued his refusal.
Procedural Posture:
- Kincade's probation officer informed the U.S. District Court that Kincade refused to submit the required DNA sample, recommending the revocation of his supervised release.
- At a revocation hearing, the district court rejected Kincade's constitutional challenges to the DNA Act.
- The district court found Kincade had violated the terms of his supervised release and sentenced him to four months' imprisonment and two years' additional supervised release.
- The district court stayed the sentence of imprisonment, and Kincade (appellant) appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
- A three-judge panel of the Ninth Circuit initially heard the case and issued a decision.
- The Ninth Circuit subsequently vacated the panel's decision and granted a rehearing of the case en banc.
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Issue:
Does the DNA Analysis Backlog Elimination Act's requirement that federal offenders on supervised release provide a DNA sample, without individualized suspicion of a new crime, constitute an unreasonable search in violation of the Fourth Amendment?
Opinions:
Majority - O'Scannlain
No. The compulsory collection of a DNA sample from a qualified federal offender under the DNA Act is a reasonable search that does not violate the Fourth Amendment. This case is properly analyzed under the totality of the circumstances test established in United States v. Knights, rather than the 'special needs' doctrine. This test balances the intrusion on the individual's privacy against the promotion of legitimate government interests. An offender on conditional release has a substantially diminished expectation of privacy. The physical intrusion of a blood draw is minimal and commonplace. Conversely, the government has overwhelming interests in monitoring offenders, deterring and reducing recidivism, and solving past and future crimes. Because the governmental interests decisively outweigh the offender's diminished privacy interest, the search is reasonable.
Concurring - Gould
No. The DNA Act's requirement is constitutional, but it should be upheld under the 'special needs' doctrine, not the totality of the circumstances test. The 'special need' that justifies the suspicionless search is the effective supervision of individuals on conditional release. The DNA database serves this need by deterring releasees from committing future crimes and aiding in their capture if they do. This forward-looking penalogical purpose is distinct from general law enforcement. This opinion does not decide whether the government may retain the DNA sample in its database after the individual's term of supervised release has ended and the 'special need' has expired.
Dissenting - Reinhardt
Yes. The DNA Act's requirement constitutes an unreasonable search in violation of the Fourth Amendment. A programmatic, suspicionless search conducted for ordinary law enforcement purposes is unconstitutional unless justified by the narrow 'special needs' exception, which requires a primary purpose 'divorced from the State's general interest in law enforcement.' The DNA Act's unequivocal purpose is to generate evidence to help solve crimes, which is a general law enforcement interest. Therefore, it fails the special needs test. The plurality's application of a 'totality of the circumstances' test is a dangerous departure from established precedent that eliminates the Fourth Amendment's core requirement of individualized suspicion for law enforcement searches and opens the door to expansive government surveillance.
Dissenting - Kozinski
Yes. The DNA Act's requirement is unconstitutional. The primary Fourth Amendment intrusion is not the minor act of taking blood, but the permanent seizure of an individual's unique DNA fingerprint and its inclusion in a searchable government database for life. Allowing the government to exploit a person's temporary status as a releasee to obtain this permanent identifier is a significant circumvention of the Fourth Amendment. The plurality's balancing test provides no meaningful limiting principle and creates a slippery slope that could eventually justify a universal DNA database covering all citizens, fundamentally altering the relationship between the government and the individual and eroding the realm of guaranteed privacy.
Dissenting - Hawkins
Yes. The DNA Act as currently implemented violates the Fourth Amendment. While a DNA sample might be permissible under a 'special needs' theory, the method and scope of this program are unreasonable. The government's use of a forcible blood extraction, rather than a less intrusive method, and its retention of the DNA profile in perpetuity—long after the special need of supervision has ended—exceeds what is justified. The government's legitimate needs do not warrant this particular type of intrusive, suspicionless search that extends indefinitely.
Analysis:
This en banc decision deepens a circuit split on the proper analytical framework for evaluating DNA collection statutes, with the Ninth Circuit plurality adopting a broad 'totality of the circumstances' approach over the more common 'special needs' doctrine. The ruling significantly expands the government's power to conduct suspicionless searches on individuals with diminished privacy expectations, even when the primary purpose is general law enforcement. This potentially weakens the line drawn by the Supreme Court in cases like Indianapolis v. Edmond, which previously required such programmatic searches to have a primary purpose separate from ordinary crime control, and sets a powerful precedent for justifying future surveillance technologies.
