Forced taking of DNA from a prison inmate violated his Fourth Amendment rights because his offense was not a qualifying offense under California law, but defendants were entitled to qualified immunity from suit. Koch v. Lockyer, 340 Fed. Appx. 372 (9th Cir. 2009) (unpublished):
Prisoners have diminished privacy rights, and as such, limited freedom against searches and seizures of their body, including the collection of their DNA. Cf. United States v. Kriesel, 508 F.3d 941, 947 (9th Cir. 2007). However, even the limited security right Koch had against forcible extraction of his DNA outweighs the government’s interest in obtaining his DNA, since the state legislature had not expressed such an interest at the time his DNA was collected. Cf. United States v. Kincade, 379 F.3d 813, 839 & n.39 (9th Cir. 2004) (en banc) (upholding compulsory DNA collection from certain federal violent criminal offenders in absence of individualized suspicion that they had committed additional crimes, where the legislature expressed a legitimate governmental interest in that DNA collection and “the evenhandedness of [the] statute contribute[d] to its reasonableness” (quoting Rise v. Oregon, 59 F.3d 1556, 1561 (9th Cir. 1995)).
In this case, given the absence of individualized suspicion, probable cause, a legislative act endorsing this type of DNA collection, or “special needs” to justify that collection, Appellees’ forcible collection of Koch’s DNA was unreasonable. Cf. United States v. Knights, 534 U.S. 112, 118 (2001) (holding that “the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests” (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). Therefore, Appellees violated Koch’s Fourth Amendment rights by forcibly taking his DNA under these circumstances.
Finding that a stolen vehicle report had been recalled after the vehicle was found did not require exclusion. This is similar in effect to Herring. The stolen vehicle report justified seizure of the vehicle, and a search of the vehicle located a bomb. United States v. Noster, 573 F.3d 664 (9th Cir. 2009):
Like the arresting officers in Hensley, there is no dispute that Officers Capa and Murphy acted in reasonable reliance on the stolen vehicle database to conclude that the car was stolen and thus “seizable” pursuant to California law. See Cal. Veh. Code § 22651(c) (providing that an officer may remove a vehicle from a public street where “a report has previously been made that the vehicle has been stolen”). Moreover, because we impute Officer Beene’s probable cause to believe that the vehicle was evidence of criminal fraud to the two officers, see Hensley, 469 U.S. at 233, their seizure and search of the truck was also reasonable under the Fourth Amendment. …
“Although Officer Tully thereafter immediately began to question Muniz to ‘take consent or develop reasonable suspicion,’ this follow-on questioning did not change the consensual encounter into an illegal detention. The district court did not clearly err in its determination that the post-Terry-stop questioning was a consensual encounter.” United States v. Muniz, 340 Fed. Appx. 193 (5th Cir. 2009) (unpublished).*
Defendant’s probation search was justified by reasonable suspicion. United States v. Boynton, 337 Fed. Appx. 801 (11th Cir. 2009) (unpublished).*
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
