United States v. Kriesel

In 2004 we held that the DNA Analysis Backlog Elimination Act of 2000 “satisfies the requirements of the Fourth Amendment” with respect to individuals on supervised release. United States v. Kincade, 379 F.3d 813, 839 (9th Cir.2004) (en banc). The 2000 Act required collection of DNA samples from individuals in custody and on probation, parole, or supervised release who had . been convicted of “qualifying Federal offenses,” then defined as certain violent crimes. 42 U.S.C. § 14135a (2000). Congress amended the Act in 2004 to expand the qualifying offenses to all felonies. Joining every other circuit to consider the 2004 Act, we hold that the amended statute passes constitutional muster with respect to a convicted felon on supervised release.1

*9431. Statutory and Regulatory Background

In 2000, Congress enacted the DNA Analysis Backlog Elimination Act (the “DNA Act” or the “Act”), which required DNA samples to be collected from individuals in custody and those on probation, parole, or supervised release after being convicted of “qualifying Federal offenses.” 42 U.S.C. § 14135a. The DNA Act originally defined “qualifying Federal offenses” as the following: (A) murder, voluntary manslaughter, or other offense relating to homicide, (B) an offense relating to sexual abuse, to sexual exploitation or other abuse of children, or to transportation for illegal sexual activity, (C) an offense relating to peonage and slavery, (D) kidnaping, (E) an offense involving robbery or burglary, (F) any violation of 18 U.S.C. § 1153 involving murder, manslaughter, kidnap-ing, maiming, a felony offense relating to sexual abuse, incest, arson, burglary, or robbery, (G) any attempt or conspiracy to commit any of the above offenses. See DNA Analysis Backlog Elimination Act, Pub.L. No. 106-546, § 3, 114 Stat. 2726, 2729-30 (2000). In 2001, the USA PATRIOT Act added to § 14135a “[a]ny offense listed in section 2232b(g)(5)(B) of Title 18 [acts of terrorism transcending national boundaries],” “[a]ny crime of violence (as defined in section 16 of Title 18, United States Code),” and “[a]ny attempt or conspiracy to commit any of the above of~ fenses” to the list of qualifying offenses. See Pub.L. No. 107-56, § 503, 115 Stat. 272, 364 (2001). Together, these qualifying offenses are generally characterized as violent crimes.

Congress passed the Justice for All Act in 2004, which further amended the DNA Act by expanding the definition of “qualifying Federal offenses” as follows:

(d) Qualifying Federal offenses

The offenses that shall be treated for purposes of this section as qualifying Federal offenses are the following offenses, as determined by the Attorney General:

(1) Any felony.

(2) Any offense under chapter 109A of Title 18 [sexual abuse crimes].

(3) Any crime of violence (as that term is defined in section 16 of Title 18).2

(4) Any attempt or conspiracy to commit any of the offenses in paragraphs (1) through (3).

Pub.L. No. 108-405, § 203(b), 118 Stat. 2260, 2270 (2004).3 Rather than specifying certain crimes, the amendment included all felonies, all crimes of violence, and all sexual abuse crimes under Chapter 109A of Title 18.

The Attorney General has authority to promulgate regulations to carry out the statute. See 42 U.S.C. § 14135a(e); 28 C.F.R. § 28.2; DNA Sample Collection *944From Federal Offenders Under the Justice for All Act of 2004, 70 Fed.Reg. 4,763-01 (Jan. 31, 2005) (“DNA Sample Collection”). In response to the 2004 changes, the Attorney General revised 28 C.F.R. § 28.2, the regulation that identifies qualifying federal offenses for the purposes of DNA sample collection, to track the new language of § 14135a(d).

As under the original DNA Act, probation offices collect DNA samples from individuals on probation, parole, or supervised release who have been convicted of a qualifying federal offense, 42 U.S.C. § 14135a(a)(2), and the samples are furnished to the Director of the Federal Bureau of Investigation (the “FBI”), “who ... carriles] out a DNA analysis on each such DNA sample and include[s] the results in CODIS,” id. § 14135a(b).4 CODIS is the FBI’s Combined DNA Index System — a 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. See Kincade, 379 F.3d at 819 (plurality opinion).

The 2000 Act also provided privacy protection standards, which remain in place after the 2004 amendment. Each act of unauthorized collection, use, or disclosure of a DNA sample is a separate crime, and “[a] person who knowingly discloses a sample or result described in subsection (a) in any manner to any person not authorized to receive it, or obtains or uses, without authorization, such sample or result, shall be fined not more than $250,000, or imprisoned for a period of not more than one year.” 42 U.S.C. § 14135e(c). Subsection (a) provides that in general, “any sample collected under, or any result of any analysis carried out under, section 14135, 14135a, or 14135b of this title may be used only for a purpose specified in such section.” Id. § 14135e(a).

II. Kriesel’s Claims

In March 1999, Thomas Edward Kriesel, Jr. pleaded guilty to one count of conspiracy to commit the crime of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to thirty months of imprisonment and three years of supervised release. At the time of judgment, the terms of Kriesel’s supervised release included this standard condition: “You shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer.” Kriesel was also advised that he “shall submit his person, residence, place of employment or vehicle to a search upon request by the U.S. Probation Office.”

When he was initially scheduled for DNA testing, Kriesel informed the probation officer that he was opposed in principle to the government’s collection and permanent storage of his DNA. In August 2005, the Probation Department petitioned the district court to revoke Kriesel’s supervision because he failed to report for DNA testing. Because Kriesel’s conviction for conspiracy to distribute methamphetamine is a felony, it is a “qualifying Federal offense” under the DNA Backlog Elimination Act as amended in 2004. 42 U.S.C. § 14135a(d) (2004). At the hearing on the petition to revoke supervised release, Kriesel’s counsel argued that the Attorney General promulgated the regulation gov*945erning DNA collection in violation of the notice and comment provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553, and that the DNA Act as amended in 2004 violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. See U.S. Const., amend. IV.

The district court rejected these arguments and upheld both the validity of the regulation and the constitutionality of the Act. The district court also granted a stay of its order pending appeal.

III. APA Challenge

Kriesel first contends that the Attorney General was required to follow the notice and comment procedures in 5 U.S.C. § 553 because in revising 28 C.F.R. § 28.2, the Attorney General promulgated a substantive or legislative rule. The APA provides that administrative rules must be adopted through the rulemaking process, which includes notice and an opportunity for public comment. 5 U.S.C. §§ 551(4), (5); 553. Although not referenced in the statute, the courts have denominated such rules as “legislative rules.” See Richard J. Pierce, Jr., Distinguishing Legislative Rules from, Interpretive Rules, 52 Admin. L. Rev. 547, 549 (2000). In contrast, the APA specifically exempts “interpretive rules” from the rulemaking process. 5 U.S.C. § 553(b)(3)(A).

The Attorney General’s regulation issued in response to the 2004 amendment is a classic interpretive rule: it is a rule “issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.” Chrysler Corp. v. Brown, 441 U.S. 281, 302 n. 31, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) (quoting United States Department of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947)); see also Hemp Indus. Ass’n v. Drug Enforcement Administration, 333 F.3d 1082, 1087 (9th Cir.2003) (“In general terms, interpretive rules merely explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule.”).

The 2004 amendment dictates the basis for the regulatory revision. The statute provides in relevant part: “[t]he offenses that shall be treated for purposes of this section as qualifying Federal offenses are the following offenses, as determined by the Attorney General: (1) Any felony.” Justice for All Act, § 203(b).

The Attorney General issued regulations that mirror the statute, by designating “any' felony” as a qualifying offense. 28 C.F.R. § 28.2(b)(1). The regulations define “felony” in accord with federal law as an “offense that would be classified as a felony under 18 U.S.C. § 3559(a) or that is specifically classified by a letter grade as a felony.” Id. § 28.2(a).

Kriesel’s contention, which is not easy to divine, is apparently that by designating “all” felonies, rather than some, the Attorney General was legislating rather than interpreting the statute. This argument is difficult to countenance as the Attorney General simply defined felony in accord with an existing federal standard and adopted the “any felony” designation directly from the statutory language. See H.R.Rep. No. 108-711 (2004), as reprinted in 2005 U.S.C.C.A.N. 2274, 2284, 2004 WL 2348416 (stating that the 2004 amendment meant to authorize collection of DNA samples from “all felons convicted of Federal crimes and qualifying military offenses.”). In promulgating the regulation, the Attorney General specifically recognized that “[t]he notion of a ‘felony’ is a standard, familiar concept in Federal criminal law, and this rule simply refers to existing statutory provisions for its definition,” and that § 28.2 simply “defines ‘felony’ as it is ordinarily understood — i.e., as referring to *946offenses for which the maximum authorized term of imprisonment exceeds one year.” DNA Sample Collection, 70 Fed. Reg. 4,764, 4,766 (citing 18 U.S.C. § 3559(a)).

As the Attorney General explained, he understood the 2004 amendment itself to “authorize[ ] DNA sample collection from all Federal offenders convicted of felonies.” DNA Sample Collection, 70 Fed.Reg. 4,766. We earlier observed that “penalizing the agency” for explaining the bad news about the DNA Act, “by labeling the explanation ‘substantive,’ would be killing the messenger. The regulation impose[s] no other substantive legal duties ... other than what the statute already imposed.”5 Alcaraz v. Block, 746 F.2d 593, 613-14 (9th Cir.1984). Nothing in these regulations supports a claim that the rules are legislative and thus merit a full-blown rulemak-ing process.

IV. Constitutional Challenge

Every circuit to' consider a Fourth Amendment challenge to the 2004 Act has reached the same conclusion: collecting DNA from nonviolent felons as authorized by the Act does not violate the Fourth Amendment.6 The majority of circuits adopt a “totality of the circumstances” framework. United States v. Weikert, 504 F.3d 1, 9 (1st Cir.2007); Banks v. United States, 490 F.3d 1178, 1183 (10th Cir.2007); United States v. Kraklio, 451 F.3d 922, 924 (8th Cir.2006); United States v. Castillo-Lagos, 147 Fed.Appx. 71 (11th Cir.2005).7 In contrast, the Second and Seventh Circuits rely on the “special needs test.” United States v. Amerson, 483 F.3d 73, 78 (2d Cir.2007); United States v. Hook, 471 F.3d 766, 772-74 (7th Cir.2006). The Sixth Circuit has upheld the 2004 Act under both tests. United States v. Conley, 453 F.3d 674, 677-81 (6th Cir.2006).8

In light of Samson v. California, we continue to ground our analysis in the totality of circumstances test. 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Before Samson, no Supreme Court case had addressed this issue. See Kincade, 379 F.3d at 832 n. 27 (plurality opinion). In Samson, however, the Court applied the totality of the circumstances test in upholding a California law provid*947ing that, as a condition for release, every prisoner eligible for state parole must agree to be subject to a search or seizure by a parole officer with or without a warrant, and with or without cause. 126 S.Ct. at 2197, 2199 n. 3, 2202.

Taking our cue from Samson, we reaffirm that “the touchstone of the Fourth Amendment is reasonableness,” id. at 2201 n. 4, and adopt the “general Fourth Amendment approach,” which “ex-amin[es] the totality of the circumstances to determine whether a search is reasonable.” Id. at 2197 (quoting United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)) (internal quotation marks omitted). “Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Id. (quoting Knights, 534 U.S. at 118-19, 122 S.Ct. 587).9

A. Kriesel’s Privacy Interest

In assessing the nature of Kriesel’s privacy interest, “we begin our resolution of the issue by taking note of the well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public.” Kincade, 379 F.3d at 833 (plurality opinion). Rather, the Supreme Court has often recognized, as it did yet again in Samson, that parolees “have severely diminished expectations of privacy,” and that the Fourth Amendment does not necessarily prohibit a police officer from conducting a suspicionless search of a parolee. 126 S.Ct. at 2199, 2202; see also Kincade, 379 F.3d at 834 (plurality opinion) (“[C]ondi-tional releasees enjoy severely constricted expectations of privacy relative to the general citizenry.”)

As a direct consequence of Kriesel’s status as a supervised releasee, he has a diminished expectation of privacy in his own identity specifically, and tracking his identity is the primary consequence of DNA collection. The DNA analyzed by the FBI consists primarily of “junk DNA” — “non-genic stretches of DNA not presently recognized as being responsible for trait coding” that were purposefully selected because “they are not associated with any known physical or medical characteristics.” Kincade, 379 F.3d at 818 (plurality opinion) (internal quotation marks omitted). But see id. n. 6 (“Recent studies have begun to question the notion that junk DNA does not contain useful genetic programming material.”). And, based on Kriesel’s status as a qualified offender on supervised release, he can claim only the most limited expectation of privacy, if any, in his identity given that he was lawfully convicted of a predicate offense. See id. at 842 n. 3 (Gould, J., concurring) (noting that it is permissible to maintain identifying fingerprints of felons even after they have been released because fingerprints reveal only identity, but declining to endorse the practice of retaining DNA in the CODIS database after a felon has paid his debt to society).

In assessing the nature of the privacy intrusion, we are mindful of the caution that DNA often reveals more than identity, and that with advances in technology, junk DNA may reveal far more extensive genetic information. Judge Gould observed in his concurrence in Kineade, “un*948like fingerprints, DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only-more revealing over time. Like DNA, a fingerprint identifies a person, but unlike DNA, a fingerprint says nothing about the person’s health, their propensity for particular disease, their race and gender characteristics, and perhaps even their propensity for certain conduct.” Id. n. 3; see also Amerson, 483 F.3d at 85 (recognizing “the vast amount of sensitive information that can be mined from a person’s DNA and the very strong privacy interests that all individuals have in this information”) (citing Kincade, 379 F.3d at 843 (Reinhardt, J., dissenting)).

The concerns about DNA samples being used beyond identification purposes are real and legitimate. Nevertheless, those concerns are mitigated by the Act’s privacy protections, which provide criminal penalties for the unauthorized use of DNA samples. They are also outweighed by the competing notion that supervised releasees have little to no privacy interest in their identities. See 42 U.S.C. § 14135e(c) (“A person who knowingly discloses a[DNA] sample or result ... in any manner to any person not authorized to receive it, or obtains or uses, without authorization, such sample or result, shall be fined not more than $250,000, or imprisoned for a period of not more than one year. Each instance of disclosure, obtaining, or use shall constitute a separate offense under this subsection.”).10

The physical drawing of blood also implicates Kriesel’s interest in bodily integrity, “a cherished value of our society.” Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). A blood draw “is inherently more intrusive than a purely external search such as fingerprinting.” See Weikert, 504 F.3d at 12. Nevertheless, the Supreme Court has held that the intrusion caused by a blood test itself “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 minimal, and that for most people, the procedure involves virtually no risk, trauma, or pain.’ ” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (quoting Schmerber, 384 U.S. at 771, 86 S.Ct. 1826). “[I]t is [also] a commonly accepted condition of probation [or supervised release] that the probationer [or re-leasee] submit to drug tests, with the result that, often, the requisite DNA sample can be collected without any incremental intrusion.” Amerson, 483 F.3d at 85. Consequently, the additional privacy implications of a blood test collecting DNA, as opposed to a cheek swab or other mechanism, do not significantly alter our analysis. Cf. id. at 84-85 (distinguishing between the physical taking of DNA samples and the “more serious invasion” of “analysis and maintenance” of an individual’s information). Based on all these considerations, we conclude that as a convicted felon who currently continues to serve his term of supervised release, Kriesel has a diminished privacy interest in the collection of his DNA for identification purposes.

We emphasize that our ruling today does not cover DNA collection from arres-tees or non-citizens detained in the custody of the United States, who are required to submit to DNA collection by the 2006 ver*949sion of the DNA Act. See 42 U.S.C. § 14135a(a)(1)(A) (2006). Nor do we have before us “a petitioner who has fully paid his or her debt to society, who has completely served his or her term, and who has left the penal system.... Once those previously on supervised release have wholly cleared their debt to society, the question may be raised, ‘Should the CO-DIS entry be erased?’ ” Kincade, 379 F.3d at 841 (Gould, J., concurring in the judgment). We do not answer these questions. See also Green, 354 F.3d at 679-81 (Easterbrook, J., concurring) (noting that “[fjelons whose terms have expired” form a different category of individuals than supervised releasees for the purposes of a Fourth Amendment inquiry). Rather, our decision is confined to the precise circumstances before us.

B. Government’s Interests

In Kincade, the plurality identified as “undeniably compelling” and “monumental” three governmental interests justifying DNA collection from violent felons: First, “[b]y establishing a means of identification that can be used to link conditional releasees to crimes committed while they are at large,” compulsory DNA profiling serves society’s interest in ensuring that releasees comply with the conditions of their release. 379 F.3d at 838 (plurality opinion). Second, the deterrent effect of such profiling fosters society’s interest in reducing recidivism. Id. Finally, collecting the DNA of offenders contributes to the solution of past crimes. Id. In elaborating on those interests, the analysis did not distinguish as a practical matter between violent and nonviolent felons. Here the government advances the same arguments with respect to nonviolent felons, and Kin-cade’s rationale applies with equal force.

The governmental interest in identifying releasees and linking them to crimes committed while “at large” is significant. While DNA evidence is often central to the investigations of violent crimes such as murder or sexual assault, see Roe v. Marcotte, 193 F.3d 72, 82 (2d Cir.1999), it can be useful in solving nonviolent crimes as well. As the Tenth Circuit recently noted, “[i]t is important to realize ... that DNA can be extracted from hair, saliva, and numerous other parts of our bodies that even a non-violent criminal could leave behind on a piece of inculpatory evidence.” Banks, 490 F.3d at 1190; see also Kincade, 379 F.3d at 838 n. 37; Amerson, 483 F.3d at 88 n. 15 (“[Tjhere are also indications that DNA can be, and is increasingly, being used to solve nonviolent crimes.”). Although fingerprint evidence might often be sufficient to identify a past offender, DNA collection provides another means for the government to meet its significant need to identify offenders who continue to serve a term of supervised release. Cf. Banks, 490 F.3d at 1190.

With respect to the deterrent effect, “[t]he Supreme Court has repeatedly recognized that rates of re-arrest among parolees and probationers are significantly higher than the general crime rate.” Banks, 490 F.3d at 1189; see also Samson, 126 S.Ct. at 2200 (collecting cases describing the state’s interests in reducing recidivism and noting that “parolees ... are more likely to commit future criminal offenses”) (internal quotation marks and citation omitted). “[T]he very assumption of the institution of probation” or supervised release is that the probationer is “more likely ... to violate the law.” Griffin v. Wisconsin, 483 U.S. 868, 880, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).

Kriesel counters that nonviolent offenders have lower recidivism rates than violent offenders. This argument is not persuasive in Kriesel’s case. Indeed, he is already a recidivist, as he violated the *950terms of his release when he tested positive for controlled substances. While it is true that “recidivism rates vary with factors like the offender’s age and type of conviction,” nonetheless, “the high likelihood that non-violent offenders will re-offend — and therefore, as the Supreme Court recognized in Knights, be put in the position to conceal their crimes and identities from the authorities — underscores the Government’s interest in obtaining the most accurate identification information it can from these individuals.” See Banks, 490 F.3d at 1191.11

Finally, the Kincade plurality also explained that “by contributing to the solution of past crimes, DNA profiling of qualified federal offenders helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large.” 379 F.3d at 839. Although the weight of this rationale may vary when considering individual types of crimes, nonviolent crimes can also cause significant and lasting damage to innocent individuals. For example, a family defrauded of its life savings, home, and financial stability by an unscrupulous con artist running a telemarketing or mail fraud scheme is just as much a victim as a family that is the victim of a burglary, and just as DNA samples can clear suspects of crimes, they can also contribute to the resolution of past crimes. The government may certainly credit those concerns in pursuing ways to solve open investigations.

In sum, we agree in principle with the other circuits that have considered the issue, and hold that in the case before us, requiring Kriesel to comply with the 2004 amendment to the DNA Act is constitutional because the government’s significant interests in identifying supervised releas-ees, preventing recidivism, and solving past crimes outweigh the diminished privacy interests that may be advanced by a convicted felon currently serving a term of supervised release.

AFFIRMED.