USA v. Thomas Kriesel, Jr.

Filing

FILED OPINION (MARY M. SCHROEDER, STEPHEN R. REINHARDT and MILAN D. SMITH, JR.) AFFIRMED. Judge: MMS Authoring, Judge: SR Dissenting, FILED AND ENTERED JUDGMENT. [8685107]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-30197
D.C. No.
3:03-cr-05258RBL-1

v.
THOMAS EDWARD KRIESEL, JR.,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
July 10, 2012—Seattle, Washington
Filed June 28, 2013
Before: Mary M. Schroeder, Stephen Reinhardt,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Schroeder;
Dissent by Judge Reinhardt

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UNITED STATES V . KRIESEL
SUMMARY*

Criminal Law
The panel affirmed the district court’s order on remand
denying a motion pursuant to Fed. R. Crim. P. 41(g) for return
of a blood sample provided to the government for analysis of
the defendant’s DNA as a condition of his now-completed
supervised release.
Rejecting the government’s contention that the defendant
lacks standing, the panel agreed with the district court that the
defendant is seeking the return of “property” and that
defendant was “aggrieved” within the meaning of Rule 41.
The panel agreed with the district court that the
government carried its burden of showing the samples were
retained for a reasonable use – to ensure that the matches to
forensic evidence, identified through the government’s
Combined DNA Index System database searches, are
accurate.
The panel concluded that the government’s continued
retention of the defendant’s blood sample is reasonable under
the circumstances presented on this record, notwithstanding
that he has completed the term of supervised release.
Dissenting, Judge Reinhardt wrote that the majority’s
opinion illustrates the failure of today’s judiciary to stand up
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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to clear abuse of governmental authority as well as its
unwillingness to protect the fundamental right to privacy of all
Americans.

COUNSEL
Colin A. Fieman (argued), Assistant Federal Public Defender,
Tacoma, Washington, for Defendant-Appellant.
Jonathan Y. Ellis (argued), Jenny A. Durkan and Helen J.
Brunner, United States Attorney’s Office, Washington, D.C.,
for Plaintiff-Appellee.
Gary W. Manca, Manca Law, PLLC, Seattle, Washington;
Douglas B. Klunder, ACLU of Washington Foundation,
Seattle, Washington, for Amicus Curiae American Civil
Liberties Union of Washington.

OPINION
SCHROEDER, Circuit Judge:
Government and commercial entities enjoy increasing
capacity to obtain, store, and analyze information about
people, giving rise to increasing concerns about privacy.
Nowhere is that upward spiral more evident than in litigation,
like this case, calling into question practices relating to
identifying people through their deoxyribonucleic acid (DNA)
sequences.

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The appellant here, Thomas Kriesel, pled guilty to a drug
conspiracy charge, and was sentenced to a term of
imprisonment followed by a term of supervised release. One
condition of his supervised release required him to provide a
blood sample for analysis of his DNA, and inclusion of his
DNA profile into the government’s Combined DNA Index
System (CODIS) database. Now that Kriesel has completed
his term of supervised release, he has made an unusual
invocation of Federal Rule of Criminal Procedure 41(g),
asking the government to return the blood sample. He has no
remaining objection to the government’s retention of the
information in his DNA profile, which the government
analyzed from the extracted blood sample, and which it
currently stores in the CODIS database.
Kriesel argued to the district court that the government
had no legitimate reason for retaining the blood
sample—which of course has within it not only the limited
information the government has analyzed for his DNA profile,
but his entire unanalyzed genome. The district court ruled the
government had a legitimate purpose in retaining the blood
samples that generate the CODIS profiles in order to ensure
that the matches to forensic evidence, identified through
CODIS searches, are accurate. The court found no reason at
this time to believe the government would use the blood for
other purposes, many of which are already prohibited by
statute. The district court therefore granted judgment to the
government, and we affirm on a similar basis.

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I. THE GOVERNMENT’S DNA DATABASE
The Federal Bureau of Investigation (FBI) administers
CODIS as a nationwide database of genetic identifying
information.
The CODIS database stores DNA profiles of convicted
federal felons on supervised release and others who have had
brushes with the law. See DNA Analysis Backlog Elimination
Act of 2000 (DNA Act), Pub. L. No. 106-546, § 3, 114 Stat.
2746, 2728–30; see also 28 C.F.R. § 28.2. These DNA
profiles are commonly generated from blood samples.
The blood is collected from offenders and then sent to the
Federal DNA Database Unit (FDDU) in Quantico, Virginia.
The FDDU extracts the DNA molecules from each blood
sample, analyzes the molecules, generates a profile of
identifying characteristics, and uploads the profile to CODIS.
In addition to storing the profiles in CODIS, the FDDU retains
offenders’ physical blood samples to help ensure accurate
matches to DNA found at crime scenes.
It is important in this case to understand how the
government uses both the DNA profile and the samples for
identification purposes. Blood cells in the samples contain
two types of DNA: the biologically important coding (or
non-junk) DNA, and the biologically unimportant non-coding
(or junk) DNA. See United States v. Kincade, 379 F.3d 813,
818 (9th Cir. 2004) (en banc) (plurality) (explaining the
difference between junk and non-junk DNA). We held in
Kincade that the government may extract junk DNA from
samples, and use it to generate profiles for inclusion in
CODIS, because present scientific understanding indicates that

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junk DNA reveals no sensitive, private genetic or medical
information. It is useful, however, for identification purposes.
See id. The government uses only junk DNA to generate the
CODIS profile. The record in this case reflects that the
government makes no use of the non-junk DNA in the blood
sample.
The CODIS system searches for matches between
offenders’ DNA and crime scene evidence. It is when a match
is found that the actual sample is tested. The federal lab
retrieves the offender’s actual blood sample, which it has
retained in storage. It again extracts junk DNA from that
sample, generates a new DNA profile, and compares the new
profile to the CODIS profile. This verifies that the person
whose profile CODIS matched to the crime scene evidence is
the same person who provided the original blood sample.
The FBI created CODIS after Congress passed the Violent
Crime Control and Law Enforcement Act of 1994, which
authorized the agency to create a national database of DNA
samples from convicted federal offenders. See Pub. L. No.
103-322, 108 Stat. 1796 (Sept. 13, 1994). Following the
creation of CODIS, all fifty states passed laws requiring
convicted felons to provide DNA samples for CODIS.
The legislative history reveals concerns that the database
be as accurate and trustworthy as possible. Representative
Henry Hyde acknowledged that while a DNA database could
be valuable to law enforcement, the accuracy of the database
was critical:
[W]hen properly performed, DNA analysis has
proven an extremely effective investigative

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tool in the criminal justice process. As DNA
technology is increasingly employed in the
courtroom, however, there has been growing
concern over issues of quality assurance and
standards for conducting DNA testing. H.R.
829 [the DNA Act] will guarantee that needed
quality assurance standards are developed and
implemented.
139 Cong. Rec. H1650-01 (daily ed. Mar. 29, 1999)
(statement by Rep. Hyde).
In response to such concerns over the accuracy of CODIS,
the 1994 Act requires the Director of the FBI to develop
quality assurance and proficiency testing standards. 42 U.S.C.
§ 14131(a)(C)(2). Recommendations for these standards
were to come from “an advisory board on DNA quality
assurance methods from among nominations proposed by the
head of the National Academy of Sciences and professional
societies of crime laboratory officials.”
Id. at
§ 14131(a)(1)(A). Responsibility for implementing the
standards lies with the FBI. The statute provides that the FBI
Director “after taking into consideration such recommended
standards, shall issue (and revise from time to time) standards
for quality assurance, including standards for testing the
proficiency of forensic laboratories, and forensic analysts, in
conducting analyses of DNA.” Id. at § 14131(a)(C)(2).
The procedures challenged in this case thus came from the
advisory board’s recommendations. The FBI Director
implemented “Quality Assurance Standards” in which he
required that “where possible” the actual blood samples of
offenders be retained in the CODIS database. Fed. Bureau of

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Investigation, Quality Assurance Standards for DNA
Databasing Laboratories (revised July 1, 2009), available at
http://www.fbi.gov/about-us/lab/codis/qas_databaselabs.pdf.
The FBI thus retains Kriesel’s blood sample as part of its
implementation of quality and accuracy standards developed
pursuant to Congressional directives.
II. THIS LITIGATION’S HISTORY
In this round of Kriesel’s extended litigation, his Rule
41(g) motion asks us to order the government to return his
original blood sample. The litigation has a long history and
has already been to this court twice. See United States v.
Kriesel, 508 F.3d 941 (9th Cir. 2007) (Kriesel I); United
States v. Kriesel, 604 F.3d 1124 (9th Cir. 2010) (Kriesel II).
Kriesel pleaded guilty in 1999 to one count of conspiracy
to commit possession with intent to distribute
methamphetamine. 21 U.S.C. §§ 841(a)(1), 846. He was
sentenced to a term of 30 months imprisonment, followed by
a term of 36 months supervised release. As a condition of his
supervised release, the probation office required him to
provide a blood sample for DNA analysis. Kriesel objected on
the ground that the requirement was unlawful, and the
probation office asked the district court to revoke his
supervised release on account of his refusal to provide the
sample.
The district court rejected Kriesel’s arguments, which
were, first, that the extraction of a blood sample for DNA
analysis violated the Fourth Amendment, and second, that the
implementing regulations were promulgated in violation of the

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Administrative Procedure Act (APA), 5 U.S.C. § 553. The
court revoked his supervised release.
A. Kriesel I
Kriesel appealed to this court, and we affirmed. On
Kriesel’s Fourth Amendment challenge, we considered the
totality of the circumstances, and viewed Kriesel’s status as a
convicted felon on supervised release to be key for our
analysis. Noting Kriesel’s “diminished expectation of privacy”
as a supervised releasee, we concluded he had only a limited
interest in preventing the government from confirming his
identity through analysis of his junk DNA. See Kriesel I,
508 F.3d at 947 (citing Kincade, 379 F.3d at 833 (plurality)).
We recognized that Kriesel raised a number of legitimate
concerns about other DNA tests, i.e., “about DNA samples
being used beyond identification purposes.” Id. at 948. The
presence of significant criminal prohibitions on the
unauthorized use or disclosure of DNA samples, see
42 U.S.C. § 14135e(c), however, supported our conclusion
that Kriesel’s concerns, on the record before us, were
speculative.
Our majority opinion in Kriesel I recognized three
“undeniably compelling” interests that supported the collection
and analysis of DNA samples of convicted felons: (1) linking
supervised releasees to crimes committed while on release; (2)
deterring future crimes; and (3) solving past crimes. Id. The
majority also rejected Kriesel’s APA challenge, concluding the
implementing regulations were exempt from the
notice-and-comment process.
See id. at 945 (citing
§ 553(b)(3)(A)). We did not decide what information could
be retained after Kriesel served his term of supervised release,

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or as Judge Gould had asked in his concurrence in Kincade,
when supervised releasees had “wholly cleared their debt to
society.” Id. at 949 (quoting Kincade, 379 F.3d at 841
(Gould, J., concurring in the judgment)).
After our 2007 decision, Kriesel submitted to DNA
extraction by providing the blood sample to the district court’s
probation office. His sample was analyzed, the profile
uploaded to CODIS, and the sample stored with the FDDU.
Kriesel thus complied with all conditions of his sentence.
Kriesel then filed a motion in the district court asking, on
Fourth Amendment grounds, that his DNA profile stored in
CODIS be removed, and also seeking under Fed. R. Crim. P.
41(g) return of the blood sample. The district court denied
the motion, concluding that while a former supervised releasee
had more privacy interests than a current supervised releasee,
on balance the government’s interests in retaining the CODIS
profile outweighed Kriesel’s privacy interests. The court did
not specifically address the Rule 41(g) claim that is now
before us.
B. Kriesel II
On appeal for the second time, Kriesel abandoned his
Fourth Amendment argument for expungement of his DNA
profile stored in CODIS. He argued only that he was entitled
to the return of the blood sample as his property under Rule
41(g). See Kriesel II, 604 F.3d at 1124–25. We concluded
that Kriesel’s Rule 41(g) claim had been so subsumed within
his now-abandoned Fourth Amendment argument, that the
case should be remanded on an open record for the district
court to specifically address and determine whether Kriesel

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was entitled to the return of his blood sample under Rule
41(g). Id.
C. Proceedings in the District Court Underlying This
Appeal
On remand from our decision in Kriesel II, the parties
developed the evidentiary record pertaining to the blood
samples. Declarations explained how DNA is extracted from
blood samples, and how the samples are used. The district
court considered this evidence, and after a hearing, it denied
Kriesel’s Rule 41(g) motion.
The record developed on remand described in detail the
many steps involved in the process of collecting blood samples
from known offenders, and generating profiles from the junk
DNA for inclusion in CODIS. We describe only the general
process the FDDU follows, for specifics may differ from lab
to lab in state jurisdictions.
The first step is a government agent’s collection of a blood
sample from a known offender. The agent places several
drops of blood on each of two halves of a special paper card
used for storage. The agent marks the card with information
identifying the offender who provided the sample. The agent
submits the card to the FDDU with Form FD-936, “Request
for National DNA Database Entry.” That form contains the
offender’s fingerprints as well as information about the
offender and the submitting agency. The paper card and the
form are thus sent together to the FDDU for processing.
In the second step, the FDDU prepares the sample for
analysis and eventual inclusion of the profile in CODIS. The

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FDDU ensures the samples have not been contaminated
during transit, then assigns the sample a unique “specimen
identification number.” This number allows the government
to track the sample throughout the analysis process.
The FDDU processes the sample, after separating the
halves of the paper card used for transport. One half is treated
with chemicals that aid DNA analysis by breaking down blood
cells and stabilizing the DNA molecules in a way that permits
long term storage at room temperature. The other half of the
card is not treated with chemicals, and contains unadulterated
DNA molecules; this half must be kept and stored separately
in a freezer. The lab keeps both sides of the card for DNA
identification purposes.
The FDDU uses the treated side of the card to generate
the DNA profile. The lab identifies molecular markers
throughout the extracted junk DNA, and turns this
information into a searchable database entry that is uploaded
to the CODIS database. The database entry itself contains
specimen identification information linking the profile to the
stored blood sample, but not the subject’s name or any other
personally identifiable information. Personal identifying
information such as the offender's name, social security
number, and fingerprints are contained in the Form FD-936,
which the FBI stores in a secure filing facility.
The primary value of CODIS is to link unidentified DNA
samples collected from crime scenes to the DNA of known
offenders in the system. See Kriesel I, 508 F.3d at 949.
Investigators collect forensic samples from crime scenes and
unidentified human remains, or from the relatives of missing
persons who volunteer samples to aid the search. See, e.g.,

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28 U.S.C. § 14132(a)(2)–(4) (authorizing generation of DNA
profiles from these sources).
Forensic laboratories around the country analyze DNA
from those samples to generate a profile that can be matched
to known offenders’ DNA. The process produces accurate
identifications because it is extremely unlikely two people will
have the same profile. See Kincade, 379 F.3d at 818–19. The
goal of the CODIS system is to find what the government calls
a “Candidate Match”—a putative match between an identified
offender and unidentified crime scene DNA. When CODIS
finds a Candidate Match, the FDDU receives a CODIS Match
Report.
At this point the original blood sample is used for
confirmation. Upon receiving a CODIS Match Report, the
FDDU retrieves the original blood sample from storage to
perform further analysis—what the federal government has
called in this case the “Match Confirmation” step. The FDDU
locates the retained blood sample in storage using the
specimen identification number. The FDDU then takes the
retained sample, re-extracts junk DNA from it, and runs a new
analysis. If the newly generated profile is the same as the one
in CODIS that formed a Candidate Match, the match is
confirmed and the accuracy of the match between the CODIS
profile and the identified offender is ensured. The
confirmation of the CODIS match is thus achieved by
comparing the profile generated from the retained sample with
the Codis profile. Although CODIS has not yet encountered
such a “mismatch” or “misidentification” error, in the event
that the generated profile did not match the CODIS profile,
the lab would then determine what caused the error and,
presumably, prevent similar errors from occurring in the

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future. The “Match Confirmation” is used to ensure the
continued accuracy and integrity of the CODIS system. It is
the government’s primary justification for retaining the blood
sample.
In deciding the Rule 41g issues, the district court first
ruled that the blood sample was property within the meaning
of the Rule, and that Kriesel, because of his concerns about
the private information the sample’s non-junk DNA in the
sample could reveal, was sufficiently aggrieved to seek its
return. The district court denied the Rule 41(g) motion,
however, because the government had shown a sufficient
reason for retaining the sample. It ruled that the use of the
“Match Confirmation” process to ensure the accuracy of the
system satisfied the government’s burden to justify retention.
The court observed that Kriesel’s sample was an integral part
of the database, and that Rule 41 should not be permitted to
undermine it. The court recognized that if Kriesel and other
offenders whose DNA profiles were included in CODIS were
able to petition successfully for the return of their blood
samples, then “offenders’ identities would be released without
Match Report confirmations” and “CODIS’s integrity would
erode.” United States v. Kriesel, No. CR03-5258, at *11-12
(W.D. Wash. July 21, 2011).
The government offered a number of other justifications
for retaining the blood sample, including a speculative interest
in being able to utilize as yet undeveloped technology. The
district court properly rejected these justifications, and they
are not seriously at issue in this appeal.
Kriesel timely appeals. His primary argument is that the
district court erred in concluding that retaining his blood

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sample is reasonable. Although the district court did so
because retention allows the government to ensure the
accuracy of putative matches between offenders and
unidentified DNA, Kriesel contends the “Match Confirmation”
process is not a reasonable justification because it is not
necessary to ensure the accuracy of Candidate Matches. He
urges us to rule that those matches are sufficiently reliable
without resort to the confirmation process, so as to eliminate
any reason for retaining the sample. He also argues the
federal government does not need to retain the sample if some
states, such as Wisconsin, are not required to retain samples
as a condition of participating in CODIS.
III.

DISCUSSION

Rule 41(g) provides the textual basis for Kriesel’s claim
for return of his blood sample. The rule provides “[a] person
aggrieved . . . by the deprivation of property may move for the
property's return.” We have held that a defendant’s Rule
41(g) motion should presumptively be granted if the
government “no longer needs the property for evidence.”
United States v. Fitzen, 80 F.3d 387, 388 (9th Cir. 1996)
(citation omitted).
The government can rebut that
presumption, however, by showing a continued need for the
property that is reasonable under all of the circumstances.
United States. v Ramsden, 2 F.3d 322, 326 (9th Cir. 1993)
(citing Fed. R. Crim. P. 41, Adv. Comm. Notes to 1989
Amendments).
The district court correctly held that Kriesel is seeking the
return of “property.” The Rule’s definition of property
includes “documents, books, papers, any other tangible
objects, and information.” Fed. R. Crim. P. 41(a)(2)(A). The

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district court also properly concluded that the blood sample
itself is a tangible object, and the genetic code contained
within the blood sample is information. The applicability of
Rule 41 to bodily fluids is supported by our circuit law. We
have previously held that professional baseball players’ urine
samples, that the government seized from a laboratory, were
“property” within the meaning of Rule 41(g). United States
v. Comprehensive Drug Testing, 621 F.3d 1162, 1173 (9th
Cir. 2010).
The district court in this case further concluded Kriesel
was “aggrieved,” within the meaning of the Rule, because the
government has retained the sample from which private
information can be extracted. We agree this is sufficient to
allow him to bring a Rule 41(g) motion. We therefore reject
the government’s contention, raised for the first time on
appeal, that he lacks standing.
The issue under Rule 41(g) is thus whether the
government has shown a legitimate reason for retaining the
property. This case turns on whether the government’s
continued retention of the blood sample is “reasonable[] under
all of the circumstances.” Ramsden, 2 F.3d at 326 (citation
omitted). The district court found that the use of the blood
samples to ensure the accuracy of DNA identification was a
valid reason to retain the sample. The issue is one we review
de novo. See United States v. Kaczynski, 416 F.3d 971, 974
(9th Cir. 2005).
The government explained to the district court how and
why it uses the blood sample to ensure it has accurately
determined the identity of the person associated with the DNA
profile stored in CODIS. This “Match Confirmation” process

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compares the database profile against a new profile generated
from the offender’s retained blood sample. This ensures that
the system is working accurately. It also enables pre-arrest
confirmation of a match. The dissent is incorrect in suggesting
the same purpose is served by testing the subject after he has
been hauled into custody.
The Match Confirmation process is also a method of
long-term quality control. The government’s quality
assurance standards require periodic random testing every six
months of previously analyzed samples. The FDDU therefore
combines random samples processed in the intervening six
months, together with any positive Match Confirmation
samples, and generates new DNA profiles from these samples.
This is done for at least 1% of the total number of samples
processed in the intervening six month period. By comparing
the new and old profiles, the lab can identify errors in the
DNA analysis process. There remains a risk, however, that
some of the untested remainder of samples (up to 99%) were
analyzed erroneously. Retaining blood samples for the Match
Confirmation process increases the chances the government
will catch any such errors. If the Match Confirmation were to
reveal an error in the DNA analysis process, the lab could
review how the process might have malfunctioned. The
statute reflects the Congressional concerns, as illustrated by
Representative Hyde’s remarks, in maintaining the accuracy of
the system. The statute expressly requires the FBI to
implement standards to maintain laboratory accuracy.
42 U.S.C. § 14131(a)(C)(2). The “Match Confirmation”
process carries out that Congressional mandate.
Kriesel does not quibble with the government’s argument
that this confirmation process avoids generating false

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identifications. He argues, rather, that as a procedural matter
the government does not need such a rigorous means of
quality assurance, since the record indicates the government
has never found an erroneous match between a DNA profile
and a blood sample. Kriesel thus contends that if the system
has been flawless in the past, there is no need to retain the
blood samples.
A strong record of quality assurance in the past, however,
is not necessarily a reason to abandon protections that will
ensure accuracy in the future. The argument is a bit like
contending a driver should stop carrying a spare tire because
the car has never had a flat. Moreover, as the district court
correctly noted, the retention of the blood samples promotes
the efficacy of the CODIS identification system and maintains
the credibility of the system, should CODIS ever provide a
false match. The double-check helps maintain the confidence
of the public and law enforcement in CODIS as a means of
recreating genetic profiles in the event that the CODIS profiles
ever became compromised. We therefore agree with the
district court that the government carried its burden of
showing the samples were retained for a reasonable use.
Kriesel points out that some laboratories participate in the
nationwide network of DNA databases without retaining the
samples. He cites Wisconsin as an example, where state law
requires the lab to “destroy specimens obtained . . . after
analysis has been completed.” Wis. Stat. § 165.77 (2012).
Kriesel contends that because the federal government
nevertheless permits Wisconsin to participate in CODIS, the
FBI’s retention of the sample must be unnecessary.

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Federal sufferance of the Wisconsin law, however, does
not serve to invalidate the federal retention policy. Federal
statutes neither require nor forbid retention by the states of
blood samples as part of the administration of CODIS.
Federal law does require the federal government to implement
quality control standards and thus authorizes the federal
government to adopt more stringent measures than states
participating in CODIS. 42 U.S.C. § 14131(a)(C)(2).
Because the government obtained Kriesel’s sample as a
condition of his supervised released from custody, the
remaining question under Rule 41 is whether the government’s
justification for retention of the sample disappeared when
Kriesel completed the term of supervised release. The
question as originally framed by Judge Gould in his
concurrence in Kincade was whether the record of a felon’s
DNA could be retained once those formerly on supervised
release had “wholly cleared their debt to society.” Kincade
at 813 (Gould, J., concurring).
This query did not distinguish between the CODIS profile
and the blood sample, but asked whether any DNA record
need be retained after completion of a sentence. In this case,
Kriesel’s completion of his sentence did not eliminate the
government’s interest in retaining the DNA profile in CODIS,
and Kriesel no longer argues that it did. The need to identify
DNA found at a crime scene is critical and accuracy matters.
See Kriesel I, 508 F.3d at 949–50. The retention of the blood
samples further those goals by ensuring the accuracy of the
CODIS profile match, which is the function served by the
“Match Conformation.”

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Kriesel has abandoned his Fourth Amendment argument,
so we do not separately address whether completion of the
sentence implicates additional Fourth Amendment privacy
concerns. This case does not raise the concerns that have
been expressed about the government’s taking of DNA from
persons who have not been convicted of any crime. See
Maryland v. King, 133 S. Ct. 1958, 1989 (2013) (Scalia, J.,
dissenting); Haskell v. Harris, 686 F.3d 1121 (9th Cir. 2012)
(vacating panel opinion and ordering rehearing en banc);
Haskell, No. 10-15152, Dkt. No. 111 (Nov. 13, 2012)
(deferring submission to en banc court pending the Supreme
Court’s decision in King).
The dissent focuses on the sensitive personal information
contained within DNA that can be obtained from a blood
sample, echoing concerns of the dissenters in Kincade. There
is no basis in this record, however, to conclude that the
government will even try to obtain such information. The
DNA Act, with certain limited exceptions not relevant here,
proscribes the government from using a DNA sample for any
purpose other than suspect identification. See 42 U.S.C.
§ 14132(b)(3). Any person who knowingly uses a DNA
sample or result without authorization is subject to criminal
penalties. Id. at § 14135e(c). There is nothing to suggest that
the government will use Kriesel’s blood sample for anything
more than identification purposes, which of course it is
permitted to do. We therefore decline to credit the
speculative concerns he raises.
In dealing with speculative concerns about DNA, we have
previously stressed that we must look only to the record on
appeal and what it shows about the actual scope and uses of
the DNA information. See Kincade, 379 F.3d at 838. Other

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courts have similarly refused to speculate about the uses to
which the government could conceivably put DNA
information. See, e.g., United States v. Weikert, 504 F.3d 1,
14 (1st Cir. 2007); United States v. Amerson, 483 F.3d 73, 87
(2d Cir. 2007); United States v. Mitchell, 652 F.3d 387, 408
(3d Cir. 2011). Indeed, only recently the Supreme Court has
held that plaintiffs lacked standing to challenge the
constitutionality of the FISA Amendments Act of 2008,
50 U.S.C. § 1881a. Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138, 1150 (2013). The Court stated in Clapper that the
plaintiffs’ claims that they would be the target of illegal
surveillance were speculative, and thus did not constitute an
injury-in-fact. Id. at 1148–49. The court reasoned that the
“injury” the plaintiffs complained of was predicated on
speculation about what actions the government might take in
the future and lacked support in the record. Id. A fortiori, if
the plaintiffs in Clapper lacked standing to complain of injury
that was only speculative, then Kriesel’s demand for return of
property lacks merit when founded upon similar speculative
concerns about possible future government conduct.
We nevertheless recognize that we are dealing with a
rapidly changing world in which risks of undue intrusions on
privacy are also changing. We have previously stressed that
if scientific discoveries make clear that junk DNA reveals
more about individuals than we have previously understood,
we should reconsider the government’s DNA collection
programs. See, e.g., Kriesel I, 508 F.3d at 947 (“Should the
uses to which junk DNA can be put be shown in the future to
be significantly greater than the record before us today
suggests, a reconsideration of the reasonableness balance
struck would be necessary, even with respect to individuals in

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Kriesel’s position.” (citation and internal quotation marks
omitted)).
We affirm the district court's holding that the
government’s continued retention of Kriesel’s blood sample is
reasonable under the circumstances presented on this record.
The district court's denial of Kriesel’s Rule 41(g) motion
is AFFIRMED.

REINHARDT, Circuit Judge, dissenting.
The majority’s opinion illustrates the failure of today’s
judiciary to stand up to clear abuse of governmental authority
as well as its unwillingness to protect the fundamental right to
privacy of all Americans. Judges have come to place their
reliance on what the government tells them, rather than on
what the Constitution requires. Courts have grown more and
more lax in curtailing the excesses of law enforcement, and the
judiciary’s record in protecting privacy rights has become
wholly unsatisfactory. No other case, however, reflects a
greater surrender on the part of the courts of the citizens’ right
of privacy simply because it is told “Trust Your Government.”
As far as I am concerned, the Constitution demands far more.1

1

By these statements, I do not intend to express a view on the merits
of any national security programs, some of which are presently before the
courts. Nor do I mean to compare the violation in the present case to any
violations that may have occurred in national security cases. My

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Edward Kriesel once possessed methamphetamine; he has
now paid his debt to society and is a free man. Nonetheless,
the majority authorizes the government to maintain permanent
custody and control over his DNA sample, a drop of his blood
containing his entire genetic code, which will be kept
indefinitely in a government-controlled refrigerator in a
warehouse in Northern Virginia. Never before have we
condoned so great an infringement on the privacy rights of so
many Americans. The majority’s decision does not affect
Kriesel alone; it affects over ten million individuals who
currently have blood samples on file with the federal
government and the many tens of millions more average
Americans who, as the seizure of DNA samples expands
almost beyond limits, will have their entire genetic code
maintained permanently in other government refrigerators.2
The government already has all the information necessary for
identification—a copy of the junk DNA sequence that
identifies the individual—maintained indefinitely in the CODIS
database. Thus, there is no reason to keep the individuals’
blood samples, which contain their most intimate genetic data.
Federal law governs the collection of DNA samples but
provides no guidance on whether these samples should be
retained or destroyed after the individual’s junk DNA profile
is entered into the CODIS database.3 The Federal Bureau of
comments regarding the duty of courts to examine the issues carefully in
light of the Constitution are, however, equally applicable to all cases,
domestic or foreign.
2

See discussion infra at pp. 51–55.
3

The majority makes repeated reference to 42 U.S.C. § 14131, a
statutory provision that directs the FBI to ensure the quality of the

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Investigations has taken it upon itself to store the original
blood samples taken from millions of individuals “[w]here
possible” for the purpose of “retesting for quality assurance
and sample confirmation.” FBI, Quality Assurance Standards
for DNA Databasing Laboratories, at 7.2. Because no statute
authorizes the retention of blood samples, it is the
government’s burden to justify the retention of Kriesel’s.
The purpose of CODIS is to permit local, state, and
federal “forensics laboratories to exchange and compare DNA
profiles electronically in an attempt to link evidence from
crime scenes for which there are no suspects to DNA samples
of convicted offenders on file in the system”—in other words,
to facilitate the identification of criminal suspects.4 H.R. Rep.
No. 106–900(I), at 8 (2000). The retention of blood samples
does not affect the ability of law enforcement to use the
CODIS database to identify a suspect and investigate whether
his DNA matches the DNA found at the crime scene. Instead,
the government offers two rationales that the majority accepts

CODIS system. Nothing in this section or anywhere else in the United
States Code authorizes the FBI to permanently retain blood samples for
quality assurance, however, purposes or for any reason whatsoever.
4

As the majority points out, we have previously recognized only three
legitimate law enforcement interests that support the government’s
collection of DNA samples: (1) “establishing a means of identification
that can be used to link conditional releasees to crimes committed while
they are at large;” (2) “reducing recidivism” by deterring future crime;
and (3) solving past crimes. United States v. Kriesel (“Kriesel I”),
508 F.3d 941, 949 (9th Cir. 2007) (citing United States v. Kincade,
379 F.3d 813, 838 (9th Cir. 2004) (en banc) (plurality opinion)). None
of these rationales applies here because the return of Kriesel’s blood
sample would not interfere with the government’s use of his CODIS
profile to serve the purposes we recognized.

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as justifying retention of the blood samples: (1) its interest in
confirming the accuracy of a CODIS-identification; and (2) its
interest in maintaining the blood samples as a part of its
quality assurance program. On this basis, the majority
concludes that the retention of Kriesel’s blood sample, rather
than simply his CODIS profile, is “‘reasonable[] under all of
the circumstances.’” Ramsden v. United States, 2 F.3d 322,
326 (9th Cir. 1993) (quoting Fed. R. Crim. P. 41, advisory
committee’s notes).
I conclude the opposite. The retention of Kriesel’s blood
sample is far from reasonable. The government’s rationales
are flimsy, at best, and do not come close to outweighing the
recognized interests of free individuals in keeping the entirety
of their genetic code private. See, e.g., Norman-Bloodsaw v.
Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998)
(“One can think of few subject areas more personal and more
likely to implicate privacy interests than that of one’s health or
genetic make-up.”) (citations omitted). Prominent bioethicists
consider the indefinite retention of DNA samples to be “the
most significant privacy concern associated with DNA data
banking” because the stored samples reveal an immense
amount of private data. SHELDON KRIMSKY & TANIA
SIMONCELLI, GENETIC JUSTICE , 235–36 (2011). Moreover, a
majority of the public would prefer to keep their private
genetic data beyond the reach of law enforcement. Fifty-four
percent of Americans surveyed responded that they had little
or no trust in law enforcement having access to the results of
genetic testing. Johns Hopkins University Genetics and Public
Policy Center, U.S. Public Opinion on Uses of Genetic
Information and Genetic Discrimination 2 (2007). The
majority’s opinion does immense damage to the privacy

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interests in genetic data that we have long recognized and that
Congress has sought to protect.
Furthermore, the opinion finds no support in our
precedent. Each of our prior decisions dealt with the
legitimacy of the CODIS database, containing electronic data
profiles that reveal only limited information, rather than the
government’s unchecked retention of individuals’ blood
samples that contain the full panoply of information revealed
by our DNA, including family relationships, race and ancestry,
and genetic propensity for certain diseases and mental
illnesses. Our prior decisions approved of CODIS because the
database is limited to the identification-only aspects of junk
DNA. Kriesel I, 508 F.3d at 947 (“The DNA analyzed by the
FBI consists primarily of ‘junk DNA’ . . . that were
purposefully selected because they are not associated with any
known physical or medical characteristics.”); Kincade,
379 F.3d at 818, 837 (“[T]he Bureau analyzes the presence of
various alleles located at 13 markers . . . found on so-called
‘junk DNA’ . . . [T]he DNA profile derived from the
defendant’s blood sample establishes only a record of the
defendant’s identity.”).5 We have never before ruled on the

5

Kincade was limited to the diminished privacy expectations of
prisoners and persons on conditional release. Kincade, 379 F.3d at 835,
839 (plurality opinion). In Judge Gould’s controlling opinion, he made
this point explicit, reasoning that the government’s “special need” of
deterring persons on parole and supervised release from committing
crimes “[would be] gone” once that person had fulfilled his conditions
and served his time. Id. at 841 (Gould, J., concurring). In Kriesel I, we
specifically left open the question whether the government’s interests in
collecting DNA could overcome the privacy interests for those who “have
wholly cleared their debt to society.” 508 F.3d at 949 (quoting Kincade,
379 F.3d at 841 (Gould, J., concurring)).

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validity of the government’s retention of genetic material, such
as a blood sample, that contains an individual’s entire genetic
code capable of revealing sensitive information about his
health and family. Because this case deals not just with junk
DNA or a CODIS profile derived from junk DNA, but the
retention, for at least the remainder of an individual’s lifetime,
of his full genetic code, far more is at stake here than in any of
our previous cases. For this reason, I strongly dissent.
I.
In his Rule 41(g) motion, Kriesel requests simple and
limited relief. Now that he has served his time and completed
all conditions of his release, he asks this court to order the
return of the blood sample that contains all of his genetic
information. He does not ask that his DNA profile, created by
the use of junk DNA, which fully establishes his identity for
purposes of criminal investigations, be eliminated from the
CODIS database. He requests only the return of his property,6
the blood sample that contains all of his genetic data, a motion
that the majority recognizes should be presumptively granted
when the government “no longer needs the property for
evidence.” Maj. Op. at 15 (citing United States v. Fitzen,
80 F.3d 387, 388 (9th Cir. 1996) (citation omitted)).

6

I agree with the majority that the district court correctly determined
that Kriesel’s blood sample is property under Rule 41 because it is a
“tangible object[]” and his genetic code is “information.” Fed. R. Crim.
P. 41(a)(2)(A); see also United States v. Comprehensive Drug Testing,
Inc., 621 F.3d 1162, 1173–74 (9th Cir. 2010) (affirming grant of a 41(g)
motion for the return of urine samples).

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The standard of review is not in dispute. Under Rule
41(g), “a person aggrieved . . . by the deprivation of property
may move for the property’s return.” Fed. R. Crim. P. 41(g).
In deciding the motion, the burden is on the government to
show that “it has a ‘legitimate reason to retain the property.’”
United States v. Kaczynski, 416 F.3d 971, 974 (9th Cir. 2005)
(internal citation omitted). We evaluate the government’s
proffered rationales under a test of “reasonableness under all
of the circumstances.” Ramsden v. United States, 2 F.3d 322,
326 (9th Cir. 1993) (quoting Fed. R. Crim. P. 41, advisory
committee’s notes).
In making this reasonableness
determination, this court has recognized that “if the United
States’ legitimate interests can be satisfied even if the property
is returned, continued retention of the property would become
unreasonable.” Kaczynski, 416 F.3d at 975, n.6 (quoting Fed.
R. Crim. P. 41, advisory committee’s notes).
Of the several justifications offered by the government, the
majority accepts two: it holds that the government met its
burden to show that the retention of Kriesel’s property is
necessary because (1) the blood samples ensure that the
CODIS identification of the suspect is accurate; and because
(2) the blood samples further its goal of long-term quality
control.7 Yet, even a cursory review of the government’s
rationales proves that they are meritless. Neither proffered
rationale establishes that the government “has a legitimate
reason to retain” the entirety of Kriesel’s genetic information.

7

The government also asserts an interest in “ensur[ing] the FBI may
take advantage of technological advancement in DNA identification.”
Because the majority holds that the district court properly rejected this
purported interest, I do not address it, although I do agree with the
majority on this point.

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Kaczynski, 416 F.3d at 974 (internal quotation marks and
citations omitted). First, use of the retained blood sample is
in no way necessary to ensure that the CODIS profile has
accurately identified the individual whose DNA is found at the
scene of the crime—the only interest the government can have
in confirming the accuracy of the CODIS profile. To the
contrary, comparing the retained blood sample with the
CODIS profile may, in fact, interfere with or delay law
enforcement efforts to determine whether the CODISidentified person’s DNA matches the DNA found at the crime
scene. Second, any additional benefit provided by the
retention of blood samples to the quality control program is
entirely theoretical and of highly dubious value at best. In any
event, any such benefit would be overwhelmingly outweighed
by the injury to the privacy interests of the over 10,000,000
Americans (and growing) whose blood samples are being
retained without sufficient justification.
In sum, the totality of the interests that the government
advances, when viewed in light of Kriesel’s substantial privacy
interests, does not come close to meeting the standard of
“reasonableness under all of the circumstances.” Ramsden,
2 F.3d at 326 (citation omitted). Thus, the government has
failed to carry the burden imposed on it by Rule 41(g).
A.
As to its first rationale, the government contends that it
needs to retain Kriesel’s blood sample containing his entire
genetic code indefinitely in order to assure that if his CODIS
profile is ever identified as matching DNA found at a crime
scene, the government can confirm that the DNA profile in
CODIS matches the corresponding stored DNA sample before

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seeking a new blood sample from him that will definitively
establish whether he is the person whose DNA was found at
the scene. This intermediate step, it asserts, is necessary “to
protect against creating false investigatory leads that would
otherwise infringe the liberty of the misidentified suspect,
waste the resources of investigators and the courts, and
undermine public trust in CODIS.” It does not argue,
significantly, that testing the CODIS results against the
warehoused blood sample will aid in identifying a suspect;
rather, it acknowledges that it is only one way of possibly
eliminating an individual who may have been falsely identified
(although clearly not the most definitive or expeditious way).
The government’s argument is severely undercut by the
fact that the CODIS database has never led to a false
identification of a suspect, and the comparison with the blood
drops contained in the government-controlled refrigerator has
never proved to be of any utility.8 Moreover, if by some
remote chance, there was an unprecedented error in the
CODIS system, that error would be swiftly discovered when
the CODIS-identified suspect had a new blood sample drawn
and the new sample was compared with the DNA found at the
crime scene, as is the regular practice. For this reason alone,
the government’s rationale is wholly theoretical at best and, to
put it bluntly, is entirely without merit.
8

The majority compares this reasoning to arguing that carrying a
“spare tire” is unnecessary because the car has never suffered a flat. Maj.
Op. at 18. The majority’s choice of analogies, however, does not, among
other things, account for the constitutional interest in privacy that must
be forfeited in exchange for a means of comparison that is of little value
and has never in its history found an error in CODIS. Contrary to the
majority’s apparent thesis, one could hardly say that electing to carry a
spare tire causes substantial constitutional harm to anyone.

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To understand the fallacy in the government’s argument,
it is necessary to first understand how the DNA identification
system works. When investigators collect DNA evidence
from a crime scene, a forensic laboratory analyzes the
collected DNA to create a junk DNA profile and then searches
the CODIS database to determine whether it corresponds with
a profile already in the database. If it does, CODIS produces
a “Match Report” that reveals the identity of the
individual—now a suspect—on the basis of the DNA match.
Based on the CODIS identification, law enforcement has
probable cause to take a new sample of blood from the
identified suspect. If the DNA in the new blood sample were
to match the DNA sample found at the scene of the crime, the
suspect’s identification would be complete and his presence at
the scene of the crime would be established. Instead of simply
drawing the new blood sample from the suspect, however, the
government takes an additional unnecessary step that serves
little purpose and is made possible only by the imposition of
constitutional injury on millions of individuals. The
unnecessary step consists of comparing the CODIS profile
with the stored blood sample, purportedly to confirm the
accuracy of the CODIS identification. On this basis, the
government justifies the retention of the blood samples.
The need for the comparison of the CODIS profile to the
blood sample is self-evidently of little or no practical value and
is greatly outweighed by the harm that the retention of the
blood samples causes. First, any error in the CODIS profile
would be swiftly revealed were the unnecessary step
eliminated by simply drawing a sample of blood from the
CODIS-identified suspect and comparing the new DNA
sample to the DNA found at the crime scene. This step would
definitively answer the question whether the suspect was

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correctly identified and was present at the crime scene. No
comparison between the CODIS profile and the warehoused
blood sample answers that question. Thus, it is clear that the
intermediate step of comparing the CODIS profile to the
stored blood sample provides no investigatory benefit. The
government would continue to ensure the accuracy of the
CODIS identification if it returned the DNA samples by
drawing a confirmation sample of blood from the suspect.
Second, the most that testing the CODIS profile against
the stored blood samples could conceivably show is that there
might be an error in either the CODIS profile or in the stored
blood sample. Not only would the accuracy of the CODIS
profile be shown earlier and more definitively, without the
stored blood samples, by following the normal procedure—a
procedure law enforcement has always used—of comparing
the profile to a new blood sample drawn from the CODISidentified suspect, but comparing the CODIS profile to the
stored blood sample is a far less reliable method of detecting
an error in the CODIS profile. In the remote possibility that
a discrepancy was discovered between the stored blood
sample and the CODIS profile, it would be at least as likely to
have been caused by a mishandling of the blood sample as by
an error in CODIS. Furthermore, testing the CODIS profile
against the stored sample cannot reveal an error that exists in
both the blood sample and the CODIS profile, for example, if
an analyst erroneously misidentified both the sample and the
profile. More troubling, matching the CODIS profile against
the stored sample could even be harmful to the investigative
process: if the stored sample did not match the CODIS
profile, it could result in the termination of the investigation

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or, at the very least, cast doubt on what might actually be an
accurate CODIS profile.9
The government claims, nonetheless, that it can justify the
retention of Kriesel’s blood sample, and the ten million other
blood samples, on the ground that the comparison of the
CODIS profile with the warehoused blood sample may (in the
rare instance it reveals an error) avoid the risk of CODIS
producing a false lead that could (1) “infringe the liberty of the
misidentified suspect”; (2) “waste the resources of
investigators and the courts”; and (3) “undermine public trust
in CODIS.” None of these justifications pertains to the
government’s ability to identify or apprehend a suspect. Each
one pertains to not taking a blood sample from the wrong
person as a result of a CODIS misidentification. As a result,
none of these three justifications, nor the combination of them
all, can even begin to sustain the government’s burden of
showing that the retention of Kriesel’s blood sample, and that
of tens of millions of other Americans, is reasonable.
First, in the highly unlikely chance that a CODIS
identification were erroneous, all that could occur would be
that the falsely identified individual would have to
unnecessarily provide another blood sample some time after he
had provided the original and it would reveal the CODIS
9

For purposes of this dissent, I take the government’s word that if the
results of the comparison between the stored blood and the CODIS profile
showed a possible error of some kind, it would terminate the
investigation. I find it hard to believe, however, that the government
would actually forego the opportunity to draw an additional sample of
blood from the CODIS-identified individual. Of course, in such a case
the government’s rationale of avoiding the unnecessary taking of a new
blood sample based on a false lead is without merit.

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misidentification. To be sure, this would be an unfortunate
occurrence, but avoiding this wholly theoretical and
comparatively minor infringement on the suspect’s rights
cannot, by any measure, justify the retention of the entirety of
that individual’s, and millions of others’, private genetic
information for the rest of their lives. In any event, in the
unlikely case that CODIS were to produce a false
identification, it would be with respect to an individual whose
profile was already in CODIS and whose blood sample has
been taken previously and used to enter data from his junk
DNA into the system. That individual knows that the
inclusion of his junk DNA profile in CODIS could mean that
DNA evidence from a crime scene could lead law enforcement
to confirm or eliminate the possibility that his DNA matches
the crime scene DNA. As Kriesel himself attests, it is far
preferable to face the possibility that he might someday have
another blood sample drawn than to have his entire private
genetic code indefinitely retained by the government without
any guarantee that it will remain secure.
Next, contrary to the government’s argument, it is not a
burden on law enforcement that an investigator might have to
expend a minimal amount of time to obtain a new DNA
sample from a possibly misidentified suspect. A primary duty
of law enforcement is to investigate leads, even if they
sometimes turn out to be false. If the risk of a false lead truly
were a burden, we would have abandoned the practice of
basing investigations on fingerprints long ago. When a
fingerprint taken from a crime scene matches a fingerprint in
the database, no analyst obtains the original inked card and
conducts a confirmatory analysis of the fingerprint. The
minimal burden on CODIS-misidentified suspects, which is
unlikely ever to occur, and the equally unlikely waste of

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investigator’s time, does not even begin to rival the injury to
individuals, whose DNA samples containing their most private
genetic information will be retained by the government
indefinitely. Moreover, the waste of time and money, if any,
that would result from a false identification— which has never
occurred—cannot conceivably justify the tens if not hundreds
of millions of dollars expended on maintaining a totally
unnecessary and wholly pointless system of collecting and
maintaining tens of millions of blood samples indefinitely in a
national warehouse. Terminating that unproductive system
would, in fact, result in the savings of more than sufficient
funds to permit the hiring of numerous investigators who
could go about the business of solving crimes and making this
country a safer place in which to live.
Finally, the government has no support, whatsoever, for
its assertion that a totally unnecessary comparison between a
CODIS profile and a stored blood sample containing private
genetic data would prevent the risk that an error in CODIS
may “undermine the public trust in CODIS.” First, we do not
know that a flaw revealed by a failure of the stored blood
sample to match the CODIS profile would reveal a flaw in the
CODIS system rather than a mishandling or other error
involving the blood sample. Second, the government’s thesis
depends on two assumptions without any supporting evidence:
(1) that a CODIS error would be newsworthy enough that the
entire public would learn of the mistake; and (2) that the
public would lose confidence in CODIS because of a false
identification that causes no harm at all and is corrected
immediately when the wrongly suspected individual gives a
blood sample that demonstrates that he was not at the scene.
The majority’s argument that the “credibility” of the system
depends on this “double-check” suffers from the same flaws.

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Maj. Op. at 18. Further, whatever the risk that the public
perception of CODIS may be undermined by a false match, it
cannot begin to rival the level of concern that the public would
have if it learned that this court approved the government’s
maintenance of a library of millions of individuals’ blood
samples that contain highly private genetic information that
could be made public as a result of a governmental failure to
maintain proper security.
The government’s fundamental interest in the CODIS
database is in identifying the suspect who committed the
particular crime. Using the stored blood sample to test the
accuracy of the CODIS result does not aid in that
identification whatsoever, but simply wastes millions of dollars
in taxpayer funds and invades the basic rights of millions of
Americans. The accuracy of the identification made by
CODIS would be established more quickly and with more
certainty if the government did not interject the entirely
unnecessary and unhelpful comparison with the stored blood
sample and instead proceeded directly to the taking of a new
blood sample from the individual identified by CODIS. Only
by taking a new blood sample from the suspect can law
enforcement establish both identity and presence at the crime
scene—the most important facts to the investigation. Further,
the insubstantiality of the government’s purported need for the
potentially counter-productive matching of the CODIS profile
to the warehoused blood sample is proven by the fact that the
CODIS database system has never resulted in a false
identification and, thus, has never required the “confirmation”
provided by the secondary use of the stored sample. In sum,
the government’s interest in conducting a wholly unnecessary
secondary test that has proven to be of no practical utility or
benefit but serves only to delay or impede the criminal

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investigation is not a “legitimate reason to retain the
property.” Kaczynski, 416 F.3d at 974 (citation omitted).
Because the property, the return of which Kriesel seeks,
consists of blood samples containing intensely private genetic
information of over ten million Americans, and because the
government’s purported reason for retaining that property to
confirm the CODIS identification is almost, if not entirely,
without merit, the majority should have rejected this
justification out of hand. This rationale cannot possibly meet
the standard of “reasonableness under all of the
circumstances,” Ramsden, 2 F.3d at 326 (citation omitted), in
light of the harm to our individual right to privacy that results
from the government’s very possession of and access to this
information and the possibility that in the future others may
gain such access as well.
B.
The government’s second justification for the retention of
Kriesel’s DNA sample is that it is necessary for its quality
assurance check program. It conducts its quality assurance
check by semi-annually “randomly re-testing 1% of samples
that were received by the FBI laboratory in the previous six
months.” The usefulness of Kriesel’s blood sample in this
check is nil. The government does not use any blood sample
that is older than six months. Nonetheless, it attempts to use
the existence of the procedure to justify the retention of
Kriesel’s sample, which it obtained more than six months prior
to the district court’s decision.
Kriesel relinquished his DNA to his probation officer on
June 30, 2008, and it was uploaded into CODIS on April 29,

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2010. Kriesel’s blood sample has been retained long past the
six-month-period in which the government might have
randomly selected it as a part of its quality assurance check.
As the district court recognized in the order below,
“[Kriesel’s] sample is no longer in the pool of samples that
might be used for quality control. Therefore, quality control
is not a legitimate reason for the Government to retain
Kriesel’s [blood sample].”
Nevertheless, the government argues that the retention of
Kriesel’s blood sample is necessary because some day, if there
is ever a false CODIS match, it would investigate whether the
error was caused by a “flaw in administrative or laboratory
procedure or performance,” which may have affected the
accuracy of other CODIS profiles as well. It adds that having
all the DNA samples ever taken might prove helpful in this
effort. This is, of course, a very remote possibility indeed, and
a possibility that cannot justify the retention of the millions of
blood samples with the highly private genetic information they
contain. Certainly it is not sufficient for the government to
carry its burden of showing that its retention of Kriesel’s DNA
is reasonable under all of the circumstances.
Not only is it extremely unlikely that a process that has
been 100% accurate for the twenty-year history of the CODIS
program will ever produce an erroneous identification, but it
is even more unlikely that an error would be anything more
than an isolated mistake. It is even more unlikely that, if it
were more than an isolated mistake, the error could be
discovered only through the retesting of blood samples taken
long ago and kept for many years in a government-controlled
refrigerator. Far more likely, the normal quality assurance
check, which is designed precisely to make certain that no

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systemic error occurs, or other methods that experts have
developed or may develop for checking on systemic errors will
effectively identify and help cure any such flaw in the system.
The government’s retention of the blood samples is
“unreasonable” if its “legitimate interests can be satisfied even
if the property is returned.” United States v. Kaczynski,
416 F.3d 971, 975, n.6 (9th Cir. 2005) (citation omitted).
Notwithstanding its burden of justifying the retention of all of
the blood samples it obtains, the government does nothing
more than assert that conducting its quality assurance program
would be “an impossible task if the samples were not
retained.” This assertion, however, is without support and
contradicted by the government’s own policies. Not only has
the retention of blood samples contributed nothing to the
current accuracy rate of 100% because CODIS has never
misidentified a suspect, but the government makes no effort to
explain why other methods of quality control would be less
effective. Moreover, the quality assurance standards require
the retention of blood samples only “[w]here possible.” Fed.
Bureau of Investigation, Quality Assurance Standards for
DNA Databasing Laboratories, at 7.2. Evidently, without
some samples the desired level of quality assurance can be
attained. It is particularly significant that the government fails
to explain why a system using representative samples could
not be employed rather than retaining every single drop of
blood ever obtained from former suspects or wrong-doers. In
short, the government’s mere assertions do not meet its
burden of demonstrating that its interest in quality assurance
cannot be met without the indefinite retention of all blood
samples that it has ever taken.

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For what it is worth, no other investigative tool that we
currently use, whether it be voice identification, fingerprinting, handwriting analysis, or any other scientific or semiscientific method, is perfect. None in fact has nearly as good
a record as CODIS. Each tool is intended to aid in
investigation, not to supplant it entirely. Our criminal justice
system successfully deterred and punished crime for hundreds
of years before the use of DNA evidence became standard
practice. If CODIS identifies the wrong individual, it is no
more likely that in the end a criminal will go free or, certainly
not, that someone wrongly accused will be convicted. The
taking of a new blood sample from an individual identified by
CODIS is standard practice, and if CODIS erroneously
identified someone, the DNA extracted from the new blood
sample would not match the DNA taken from the crime scene
and the error would be discovered immediately. Although,
conceivably, investigators might temporarily have to go about
investigations the old-fashioned way if a system-wide flaw
developed, the government’s assertion, without support, that
the only way to correct that highly unlikely circumstance
would be through the use of the old blood samples stored in
a warehouse years ago is so remote as to fall short of
justifying retention of the ten million or more blood samples
in question. Certainly it is outweighed by the public’s security
in knowing that the government is not keeping the blood
samples of millions of Americans containing intensely private
and secret genetic information.
Again, the government has not met its burden of
demonstrating that “it has a ‘legitimate reason to retain the
property,’” Kaczynski, 416 F.3d at 974 (citation omitted),
based on the theoretical possibility that if it retains over
10,000,000 samples, there may some day be an error in the

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system that could only be discovered and resolved if all of
those samples are retained. The government’s second
rationale is unreasonable and entirely without merit. Certainly,
when weighed against Kriesel’s privacy interests, it is clear
that the continued retention of his DNA is not reasonable
“under all of the circumstances.” Ramsden v. United States,
2 F.3d 322, 326 (9th Cir. 1993) (quoting Fed. R. Crim. P. 41,
advisory committee’s notes).
C.
Finally, combining the two justifications, as the majority
seems to do, still falls far short of meeting the “reasonableness
under all of the circumstances” standard. Ramsden v. United
States, 2 F.3d 322, 326 (9th Cir. 1993) (citation omitted).
Neither justification that the majority endorses has any true
merit,10 and the totality of the circumstances includes Kriesel’s
substantial interest in the return of his blood sample to
maintain his right to privacy in, not the identifying data
entered into CODIS, but the remaining 99.9999% of Kriesel’s
genetic code.
The majority dismisses any privacy concerns because (1)
Kriesel no longer presses a Fourth Amendment claim as an
independent reason for return of his DNA sample, (2)
scientific discoveries have not yet made clear that junk DNA
contains sensitive genetic data, (3) the record on appeal does

10

It is clear that retention of DNA samples is not necessary to a
trustworthy DNA database because Germany, among other countries,
explicitly requires the destruction of blood or other DNA samples after
analysts have created the database profile. KRIMSKY & SIMONCELLI,
GENETIC JUSTICE at 210.

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not reflect an expansion of the government’s DNA collection
and analysis program, and (4) Kriesel’s privacy concerns are
too speculative to give them considerable weight. None of
these reasons is correct.
First, Kriesel’s privacy interests—interests protected by
the Fourth Amendment regardless of whether Kriesel
maintains a separate Fourth Amendment claim—are an
important consideration in evaluating a Rule 41(g) motion.
Indeed, interests such as Kriesel’s are precisely why we have
a procedure by which aggrieved individuals can seek the
return of their property. “Rule 41(g) is concerned with those
whose property or privacy interests are impaired by the
seizure.” United States v. Comprehensive Drug Testing, Inc.,
621 F.3d 1162, 1173 (9th Cir. 2010) (emphasis added). The
rule makes Kriesel’s privacy interests central to the question
of reasonableness. Kriesel may have dropped his separate
Fourth Amendment claim, but he did not abandon his
argument that the retention of his blood sample violated his
right to privacy.
Second, much more than junk DNA is at issue because the
government has retained the entirety of Kriesel’s genetic
material, not just his junk DNA. The majority permits that “if
scientific discoveries make clear that junk DNA reveals more
about individuals than we have previously understood, we
should reconsider the government’s DNA collection
programs.” Maj. Op. at 21 (citing Kriesel I, 508 F.3d 941,
948 n.10 (9th Cir. 2007)). Again, this misses the point
because the government is not only retaining the junk DNA,
but all of the DNA. We do not need scientists to discover
anything new to know that a full specimen of an individual’s
DNA reveals private information about that individual’s

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predisposition for certain diseases and disorders, paternity and
other familial relationships, and racial ancestry.
Third, the majority’s assurance that the record does not
reveal an expansion or intent to expand the government’s
DNA program is incorrect and negated by the government’s
brief, which contains an entire section titled:
“Accommodating advancements in DNA identification
technology is a legitimate reason for retaining Kriesel’s
blood sample.” Currently, the CODIS database compares
junk DNA profiles based on 13 core STR loci, but it is about
to expand. The FBI, through its CODIS Core Loci Working
Group, has already announced its proposed expansion of the
current CODIS system to include additional loci and has
moved into the “validation and then implementation phases of
the project.”11 Expanding CODIS does not require legislative
approval. All the FBI needs to do is provide Congress with
written notice 180 days before implementing the new
technology. The Justice for All Act, Pub. L. 108-405,
§ 203(f), 118 Stat. 2260, 2271 (2004). Clearly the
government does intend to expand its use of the stored DNA
as technology advances. In any event, expansion or no
expansion, we have never before decided whether the
government’s interests in the CODIS database justify the
indefinite retention of all of the blood samples it has ever
collected, which contain all the private genetic data of those
individuals. We must decide that question now.

11

FBI, Planned Process and Timeline for Implementation of Additional
CODIS Core Loci, available at <http://www.fbi.gov/about-us/lab/
biometric-analysis/codis/planned-process-and-timeline-for-implementa
tion-of-additional-codis-core-loci>.

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Finally, the majority cites a recent Supreme Court case on
standing for the proposition that Kriesel’s “speculative”
concerns about possible future uses of his DNA cannot justify
his request for the return of his blood sample. Maj. Op. at 21
(citing Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138
(2013)). The case that the majority cites is inapposite.
Amnesty International addresses the requirements for
standing, but, as the majority concedes, Kriesel is an
“aggrieved person” under Rule 41(g) and, thus, has standing.
Moreover, Kriesel’s circumstances bear no resemblance to
those of the complaining individuals in Amnesty International
who could not provide any evidence whatsoever that the
government’s foreign surveillance program had intercepted
any of their communications with clients and associates abroad
who may have been targeted for surveillance. In contrast,
Kriesel knows, we know, and the government admits that it
has and will not return his genetic material.
Kriesel’s privacy interest is not mere speculation about
future uses of his most intimate genetic data, but rather is the
fact that the government has possession and control over
Kriesel’s private information. See United States v. Mitchell,
652 F.3d 387, 424 (3d Cir. 2011) (en banc) (Rendell, J.,
dissenting) (explaining that an individual’s privacy interest is
in the government’s seizure of private data, not whether it
“can only use the subset of that information that serve to
identify you”). It is the government’s possession and control
of Kriesel’s most intimate genetic information that invades his
right to privacy. Thus, Kriesel’s concerns are real and
legitimate, not speculation or mere conjecture.
An assessment of the totality of the circumstances makes
clear that the government has not met its burden of showing

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that “it has a ‘legitimate reason to retain the property.’”
Kaczynski, 416 F.3d at 974 (citation omitted). Because the
retention of that property is not reasonable under all of the
circumstances, this court is required to reverse. Although I
believe that it should be obvious why Kriesel has an important
protectable interest in keeping his entire genetic profile
private, I will explain, in Section II, for the benefit of those
who are not yet persuaded, the extent of that interest and the
harm caused by the government’s retention of his blood
sample.
II.
A.
Kriesel’s privacy interests in the retained blood sample are
nothing short of overwhelming. “DNA stores and reveals
massive amounts of personal, private data about the
individual,” United States v. Kincade, 379 F.3d 813, 842, n.3
(9th Cir. 2004) (en banc) (Gould, J., concurring), including
information regarding current health, predisposition to certain
diseases including mental illness and alcoholism, behavioral
traits such as propensity for violence or criminal behavior,12
sex and sexual orientation, ethnic background, and familial
relationships. See, e.g., SHELDON KRIMSKY & TANIA
SIMONCELLI, GENETIC JUSTICE 229, 231–32 (2011). The
government’s storage of millions of individuals’ blood samples
presents a salient risk to individuals’ privacy because,

12

A more intimate example: researchers have linked a gene found in
men to the heightened potential for cheating, marital discord, and
divorce. Shankar Vedantam, Study Links Gene Variant in Men to
Marital Discord, WASHINGTON POST, Sept. 2, 2008, at A2.

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regardless of current technological capabilities, “the advance
of science promises to make stored DNA only more revealing
in time.” Kincade, 379 F.3d at 842 n.3 (Gould, J.,
concurring).
The government explicitly stated its intention to pursue
technological advancements which would enable it to expand
CODIS. The government is currently in the process of
validating and implementing new STR loci for inclusion in the
CODIS database.13 See FBI Website supra note 11. Thus,
Kriesel’s concern for the future of his DNA sample cannot be
assuaged by the majority’s belief that the government will not
expand its current use of those samples.14 In the process of
including additional STR loci in the CODIS database, the
government will reanalyze the DNA taken from Kriesel as well
as that of all other Americans who have DNA samples on file
with the federal government.
The only limit on the government’s use of advancements
in technology to enhance the CODIS database is contained in
a note to the Justice for All Act, which provides that:

13

The government argues that the addition of these STR loci would
increase the likelihood of obtaining a match with degraded DNA samples
obtained from crime scenes, and facilitate matches with DNA databases
that are used internationally and that rely on a different set of STR loci.
14

In the Fourth Amendment context, the Supreme Court recognized
that advancements in technology cannot be ignored, explaining that its
analysis “must take account of more sophisticated systems that are
already in use or in development.” Kyllo v. United States, 533 U.S. 27,
36 (2001). Nonetheless, the majority fails to account for the mountains
of evidence suggesting advancement in technology will lead directly to
expansions of the government’s use of the blood samples it stores.

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[i]f the Department of Justice plans to modify
or supplement the core genetic markers
needed for compatibility with the CODIS
system, it shall notify the Judiciary Committee
of the Senate and the Judiciary Committee of
the House of Representatives in writing not
later than 180 days before any change is made
and explain the reasons for such change.
Pub. L. No. 108-405, § 203(f) (2004) (emphasis added). This
notice provision is the only apparent limitation on the
expansion of DNA profiles included within CODIS. In short,
nothing is stopping the government from expanding CODIS.
To put it in terms of Kriesel’s right to privacy, if he cannot
retrieve his retained blood sample (which the majority opinion
prevents him and others in his circumstances from doing), the
government is going to reanalyze his DNA to code the genetic
data revealed by the new STR loci in the near future.
The government has statutory authority to use its
indefinite access to stored blood samples in any capacity
justified by “law enforcement identification purposes.”
42 U.S.C. § 14132(b)(3)(A). However, “law enforcement
identification purposes” have not been specifically defined or
circumscribed by Congress or the courts. Whatever limitation
envisioned by restricting use of blood samples to only those
used for “law enforcement identification purposes,” it does not
prevent the reanalysis or testing of stored blood samples for
certain genetic traits or for familial relationships.15 Moreover,

15

Several states conduct familial searching, whereby CODIS identifies
profiles that closely match the DNA taken from the crime scene (also
known as “partial matches”), suggesting that the CODIS-identified

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as we recognized in Kriesel I, regardless of the statutory
limitations, concerns that the government may use DNA
samples “beyond identification purposes are real and
legitimate.” 508 F.3d 941, 948 (9th Cir. 2007).
“[L]aw enforcement identification purposes” could include
retesting for certain behavior traits. For example, behavior
geneticists have been researching a purported “crime gene”
that could lead to the use of genetic material for “preventive
detentions or other means of social control for those identified
as genetically predisposed to criminality.” Elizabeth E. Joh,
Reclaiming “Abandoned” DNA: The Fourth Amendment and
Genetic Privacy, 100 NW . U. L. REV . 857, 876-77 (2006); see
also Ewen Callaway, “Gangsta Gene” Identified in US
Teens, NEW SCIENTIST , June 19, 2009 (describing findings
that a certain expression of this gene resulted in individuals
who were twice as likely to join a gang). As amicus points

individuals may be close biological relatives of the perpetrator. Natalie
Ram, Fortuity and Forensic Familial Identification, 63 STAN. L. REV.
751, 771–72 & n.99 (2011). The primary problem with familial
searching is that CODIS cannot say for certain if the individual identified
is a family member or not. Thus, investigators must do additional
analysis of the DNA to narrow the list of partial matches to those actually
corresponding to family members. Under California’s familial searching
protocol, for example, DNA laboratories use the stored blood samples to
conduct Y-chromosome analysis which can confirm male biological links
because the Y-chromosome is inherited from the father. Information
Bulletin from Edmund G. Brown, Jr., Attorney General, DNA Partial
Match (Crime Scene DNA Profile to Offender) Policy No. 2008-BFS-01
(2008). This Y-chromosome analysis could reveal intimate secrets of
familial relationships such as the identities of biological parents in a
closed adoption, a sperm or egg donor’s identity, or misattributed
paternity. Erin Murphy, Relative Doubt: Familial Searches of DNA
Databases, 109 MICH. L. REV. 291, 315 (2010).

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out, “[i]t is not hard to imagine the government arguing that
‘law enforcement identification purposes’ includes
identification of a roster of people who should be subjected to
heightened surveillance because their DNA includes the
‘violence gene.’”
A belief that the government will not attempt to make
further use of the genetic information it stores is belied not
only by CODIS’s path of expansion, but by our nation’s
history of crediting the insidious tenets of the eugenics and
criminal anthropology movements, which, in their heyday,
justified the forced sterilization of the mentally disabled. See
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 463 (1985)
(Marshall, J., concurring in the judgment) (“[Twenty-nine]
States enacted compulsory eugenic sterilization laws between
1907 and 1931.” (citing J. Landman, Human Sterilization
302-303 (1932)). Justice Holmes went so far to write:
It is better for all the world, if instead of
waiting to execute degenerate offspring for
crime, or to let them starve for their imbecility,
society can prevent those who are manifestly
unfit from continuing their kind. . . . Three
generations of imbeciles are enough.
Buck v. Bell, 274 U.S. 200, 207 (1927).
Although we have come a long way, our nation’s history
is a not so distant memory. Our history of using genetic
information against its own citizens motivated the passing of
the Genetic Information Nondiscrimination Act of 2008. The
Congressional findings state:

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(2) The early science of genetics became the
basis of State laws that provided for the
sterilization of persons having presumed
genetic ‘‘defects’’ such as mental retardation,
mental disease, epilepsy, blindness, and hearing
loss, among other conditions. The first
sterilization law was enacted in the State of
Indiana in 1907. By 1981, a majority of States
adopted sterilization laws to ‘‘correct’’
apparent genetic traits or tendencies. Many of
these State laws have since been repealed, and
many have been modified to include essential
constitutional requirements of due process and
equal protection. However, the current
explosion in the science of genetics, and the
history of sterilization laws by the States
based on early genetic science, compels
Congressional action in this area.

Genetic Information Nondiscrimination Act of 2008, Pub. L.
No. 110–233, § 2, 122 Stat. 881 (emphasis added). The only
sure way to avoid such a risk is to give individuals, rather than
the government, the ultimate say regarding whether their
genetic material will reside permanently in a governmentcontrolled refrigerator.
The majority believes that the statutory penalties for
unauthorized uses of stored blood samples resolve any
concerns about the misuse of genetic data. See 42 U.S.C.
§ 14135e. But no one can assure the over ten million
Americans whose blood samples are currently held by the
government, or the untold millions to come, that their samples
will never be misused. The quick pace of technological

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advancement has led to the risk of privacy violations that we
could never have imagined a short while ago. As some
researchers have noted, “[S]o long as the samples are retained,
there exists the possibility that they could be disclosed to or
accessed by third parties or used in ways that result in the
disclosure of highly confidential information or for malicious
or oppressive purposes.” KRIMSKY & SIMONCELLI, GENETIC
JUSTICE at 237. The solace Kriesel seeks through his 41(g)
motion is to know with certainty that he is the keeper, and the
only keeper, of his genetic material containing all the private
data about his heredity and health that the genetic code
reveals. His only alternative is “Trust Your Government,” an
alternative that historically has proven in many instances to be
no alternative at all.
B.
The majority’s opinion has far-reaching and devastating
implications for each of our interests in keeping the most
intimate details of our health and family life private. As the
government’s DNA collection practices expand, which they
inevitably will, it will be able to take and keep genetic material
from almost everyone. See Kincade, 379 F.3d at 872
(Kozinski, J., dissenting) (“If collecting DNA fingerprints can
be justified on the basis of the plurality’s multi-factor, gestalt
high-wire act, then it’s hard to see how we can keep the
database from expanding to include everybody.”).
For years now, we have permitted DNA collection from
individuals convicted of dozens of relatively non-serious
offenses. See Kincade, 379 F.3d at 847 (Reinhardt, J.,
dissenting) (detailing a non-exhaustive list of offenses for
which the government collects DNA samples). Just recently,

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the Supreme Court endorsed the collection of DNA samples
from those individuals merely arrested for a qualifying offense.
Maryland v. King, 133 S. Ct. 1958 (2013). The Supreme
Court’s decision has dramatically increased the category of
individuals who may have their DNA seized by government
officials. Estimates suggest that 52 percent of men are
arrested at some point in their lifetime. Carl Bialik, Data on
Arrest Records Aren’t Always by the Book, WALL ST . J., Nov.
18, 2009. Another study found that between 30.2 and 41.4
percent of young adults are arrested for a non-traffic offense
by the age of 23. Brame, Turner, Paternoster, & Bushway,
Cumulative Prevalence of Arrest From Ages 8 to 23 in a
National Sample, 129 PEDIATRICS 21 (2011). Although the
majority in Maryland v. King emphasizes that its decision
applies to only persons arrested for “serious offenses,” 133
S. Ct. at 1978, the reality, as correctly noted by Justice Scalia,
is that no limiting principle prevents the collection of DNA
from every arrestee and “your DNA can be taken and entered
into a national DNA database if you are ever arrested, rightly
or wrongly, and for whatever reason,” 133 S. Ct. 1989
(Scalia, J., dissenting). Recent regulations have enabled DNA
collection from persons arrested or detained by federal
agencies,16 including the national park service, for the most
minor of infractions committed on federal land, such as:
cleaning or washing any personal property, fish, animal, or
bathing at a faucet not provided for that purpose (36 C.F.R.
16

The regulations providing for DNA collection by federal agencies are
authorized by 42 U.S.C. § 14135a(a)(1)(A). The regulations are codified
in 28 C.F.R. § 28.12(b), which provides that “[a]ny agency of the United
States that arrests or detains individuals or supervises individuals facing
charges shall collect DNA samples from individuals who are arrested,
facing charges, or convicted,” and 28 C.F.R. § 28.12(f)(2), which
provides for the inclusion of collected samples in CODIS.

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§ 261.16(c)); water skiing in an area where prohibited by
order (36 C.F.R. § 261.58(o)); allowing a pet dog off its leash
(36 C.F.R. § 261.16(j)); distributing handbills without
permission (38 C.F.R. § 1.218(a)(9)); and parking illegally (38
C.F.R. 1.218(a)(12)). Now, none of these people may seek
the return of their DNA sample.
The FBI also has statutory authority to keep the blood
samples for “other persons whose DNA samples are collected
under applicable legal authorities.”
42 U.S.C.
§ 14132(a)(1)(C). This is an expanding category, which
currently includes every blood sample taken pursuant to state
law,17 but in the future could include additional groups of
people, such as blood samples submitted to prove familial
relationships for immigration purposes18.

17

In states that generally permit the collection of DNA, local
authorities have started to “devise their own policies” and, as a result, are
taking DNA samples “from people on the mere suspicion of a crime, long
before arrest, and holding on to it regardless of the outcome.” Joseph
Goldstein, Police Agencies Are Assembling Records of DNA, N.Y.
TIMES, June 13, 2013 at A1.
18

The Citizenship and Immigration Services (“CIS”) Ombudsman has
recommended that United States Citizenship and Immigration Services
(“USCIS”) move toward using DNA analysis to confirm familial
relationships. Recommendation from Ombudsman Prakash Khatri, CIS,
to Director Emilio T. Gonzalez, USCIS (Apr. 12, 2006). Although not
mandatory yet, a Senior Policy Counsel report prepared more recently for
USCIS urges further expansion, including mandatory DNA collection
from all immigration applicants. USCIS Senior Policy Council, Options
Paper, Expanding DNA Testing in the Immigration Process (undated) at
1–3.

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What is perhaps worse, the government retains blood
samples given voluntarily to help solve crimes or find missing
persons and DNA evidence seized from the scene of a crime.
42 U.S.C. § 14132(a). Several communities have already
engaged in “sweeps” in which police ask everyone in a
community to surrender a DNA sample in order to solve a
particular crime. In the small town of Truro, Massachusetts,
police sought DNA samples from all 790 male residents,
“pay[ing] close attention to those who refuse to provide
DNA” in their hunt for a suspect in an unsolved rape and
murder case. Pam Belluck, To Try to Net a Killer, Police Ask
a Small Town’s Men for DNA, N.Y. TIMES, Jan. 10, 2005, at
A1. This circumstance poses a serious problem for anyone
who objects to having his DNA sample taken and included in
the CODIS database and stored indefinitely. By refusing to
give a sample, that individual then becomes a suspect in the
crime based on his suspicious refusal to give a blood sample.
Rosemary Roberts, Open Your Mouth for a DNA Swab, NEWS
AND RECORD , Jan. 14, 2005. By giving the sample, he
surrenders his most fundamental privacy interest in not having
his basic genetic information fall permanently into the hands of
a government that is not always sensitive to the importance of
the constitutional right to privacy.
More alarming is that unless the courts stand up to protect
the fundamental right to privacy of all Americans, seemingly
small steps to expand the government’s DNA collection
program will over time result in a national DNA database that
includes every person and every person’s full genetic code.
This is not merely speculative. Politicians and academics have
advanced serious proposals for expanding CODIS to include
the entire population. See, e.g., Declan McCullagh, What to
Do With DNA Data?, WIRED NEWS, Nov. 18, 1999 (reporting

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that New York City Mayor Rudolph Giuliani proposed
collecting DNA samples from every newborn); D.H. Kaye &
Michael E. Smith, DNA Identification Databases: Legality,
Legitimacy, and the Case for Population-Wide Coverage,
2003 WIS. L. REV . 413, 450–59 (2003) (recommending a
population-wide DNA database). And today’s decision
permits the government to retain, not only the identifying
information contained in CODIS profiles, but also the private
genetic information contained in each of our blood samples.
As we approach a society in which we all have blood
samples retained by the government in a warehouse in
Northern Virginia (or in some other warehouse) and each of
our blood samples contains the most private genetic
information, capable of revealing intimate details of our family,
health, and ancestry, today’s decision will, in retrospect, be
viewed as a major step toward the elimination of our
fundamental privacy rights. We would do well to reconsider
what the majority has done today. Otherwise, we will surely
come to regret this unfortunate, unprecedented, and misguided
decision.
I respectfully dissent.