{"id":3206,"date":"2009-09-11T10:29:59","date_gmt":"2009-06-25T07:18:00","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-06-25T07:18:00","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3206","title":{"rendered":"CA9: Forced taking of DNA from a suspect violated clearly established Fourth Amendment rights"},"content":{"rendered":"

The plaintiff was arrested in Las Vegas and was a suspect in a sex offense. He had been convicted in Montana in 1980 and was released from supervision in 2001, and no DNA was on file for him. A DDA decided that police needed his DNA, so she directed a police officer to get it by force if necessary, which they did. The forcible taking of DNA from the plaintiff violated his clearly established Fourth Amendment rights. Friedman v. Boucher<\/a>, 568 F.3d 1119 (9th Cir. 2009) (submitted October 19, 2007), amended September 8, 2009<\/a>:<\/p>\n

We turn first to the question of whether the warrantless, suspicionless, forcible taking of Friedman’s DNA violated his constitutional rights. There is no question that the buccal swab constituted a search under the Fourth Amendment. The Supreme Court has held that invasions of the body are searches and, thus, are entitled to the protections of the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n<\/a>, 489 U.S. 602, 616-17 (1989) (breathalyzer and urine sample); Cupp v. Murphy<\/a>, 412 U.S. 291, 295 (1973) (finger nail scrapings); Schmerber v. California<\/a>, 384 U.S. 757, 767-71 (1966) (blood). We have held, similarly, that the Fourth Amendment protects against “all searches that invade the interior of the body–whether by a needle that punctures the skin or a visual intrusion into a body cavity.” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449 (9th Cir. 1991); see also Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir. 2005) (swabbing the inside of mouth for saliva is a search); Schlicher v. Peters, 103 F.3d 940, 942-43 (10th Cir. 1996) (collection of saliva is a search). As we put it in United States v. Kriesel: “The compulsory extraction of blood for DNA profiling unquestionably implicates the right to personal security embodied in the Fourth Amendment, and thus constitutes a ‘search’ within the meaning of the Constitution.” 508 F.3d 941, 946 (9th Cir. 2007) (quoting Kincade, 379 F.3d at 821).<\/p>\n

There is also no dispute that the search was conducted without a warrant. “A warrantless search is unconstitutional unless the government demonstrates that it ‘fall[s] within certain established and well-defined exceptions to the warrant clause.'” United States v. Brown, 563 F.3d 410, 414-15 (9th Cir. 2009) (quoting United States v. Murphy, 516 F.3d 1117, 1120 (9th Cir. 2008) (quoting United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988))).<\/p>\n

Thus, unless the government can establish that the warrantless, suspicionless, forcible taking of a buccal swab satisfies one of the exceptions to the warrant requirement, we must hold the search to be unconstitutional.\n<\/p><\/blockquote>\n

All the defendants’ arguments were rejected, including the special needs exception and the Montana DNA statute could be extraterritorially enforced in Nevada.<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-3206","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3206","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3206"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3206\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3206"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3206"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3206"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}