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United States v. Kincade

United States Court of Appeals for the Ninth Circuit

March 23, 2004, Argued and Submitted, San Francisco, California ; August 18, 2004, Filed

No. 02-50380

Opinion

 [*816]  O'SCANNLAIN, Circuit Judge:

We must decide whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion [**3]  that they have committed additional crimes.

] 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 crimes 1 [**5]  and who are  [*817]  incarcerated, or on parole, probation, or supervised release 2 [**6]  must provide federal authorities with "a tissue, fluid, or other bodily sample . . . on which an . . . analysis of that 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 [**4]  [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

 [*818]  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 [**7]  alleles 5 [**9]  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 coding 6 --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  [*819]  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.  [**8]  

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379 F.3d 813 *; 2004 U.S. App. LEXIS 17191 **

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THOMAS CAMERON KINCADE, Defendant-Appellant.

Subsequent History: US Supreme Court certiorari denied by  Kincade v. United States, 2005 U.S. LEXIS 2505 (U.S., Mar. 21, 2005)

Prior History:  [**1]  Appeal from the United States District Court for the Central District of California. D.C. No. CR-93-00714-RAG. Dickran M. Tevrizian, District Judge, Presiding.

 United States v. Kincade, 345 F.3d 1095, 2003 U.S. App. LEXIS 20123 (9th Cir. Cal., 2003)

Disposition: Affirmed.

CORE TERMS

searches, special needs, Fourth Amendment, plurality, CODIS, suspicionless, profiles, DNA Act, law enforcement, probation, releasees, probationers, privacy, cases, totality of the circumstances, supervised release, database, samples, fingerprints, extraction, blood, offenders, supervision, collection, intrusion, parolees, purposes, individualized suspicion, convicted, expectation of privacy

Criminal Law & Procedure, Criminal Offenses, Miscellaneous Offenses, General Overview, Evidence, Scientific Evidence, Bodily Evidence, DNA, Warrantless Searches, Detainee & Inmate Searches, Sentencing Alternatives, Probation, Sentencing, Fines, Supervised Release, Postconviction Proceedings, Parole, Constitutional Law, Fundamental Rights, Search & Seizure, Scope of Protection, Sentencing Guidelines, Conditions, Robbery, Bank Robbery, Standards of Review, De Novo Review, Search Warrants, Affirmations & Oaths, Probable Cause, Probable Cause, Warrants, Governments, Courts, Judicial Precedent, Expectation of Privacy, Civil Procedure, Settlements, Releases From Liability