                FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT



DANIEL BILL; BRYAN HANANIA;              No. 13-15844
MICHAEL MALPASS,
               Plaintiffs-Appellants,       D.C. No.
                                         2:12-cv-02613-
                 v.                           SRB

WARREN BREWER; HEATHER
POLOMBO,                                   OPINION
           Defendants-Appellees.


     Appeal from the United States District Court
              for the District of Arizona
      Susan R. Bolton, District Judge, Presiding

                Argued and Submitted
       June 9, 2015—San Francisco, California

                Filed August 31, 2015

    Before: Barry G. Silverman, Ronald M. Gould,
       and Andrew D. Hurwitz, Circuit Judges.

              Opinion by Judge Hurwitz
2                        BILL V. BREWER

                           SUMMARY *


                           Civil Rights

    The panel affirmed the district court’s dismissal of an
action brought by three Phoenix police officers who alleged
that two other officers violated the Fourth and Fourteenth
Amendments when, pursuant to a state court order, they
obtained DNA samples from the plaintiffs to exclude them
as contributors of DNA at a crime scene.

    The panel held that the superior court orders authorizing
the collection of plaintiffs’ DNA satisfied the Warrant
Clause of the Fourth Amendment. The panel further held
that it was not unreasonable, under the circumstances, to ask
sworn officers to provide saliva samples for the sole purpose
of demonstrating that the DNA left at a crime scene was not
the result of inadvertent contamination by on-duty public
safety personnel.


                            COUNSEL

Paul J. Orfanedes, Michael Bekesha (argued), Judicial
Watch, Inc., Washington, D.C., for Plaintiffs-Appellants.

Gary Verburg, City Attorney, Robert A. Hyde (argued),
Assistant City Attorney, Office of the City Attorney,
Phoenix, Arizona, for Defendants-Appellees.



    *
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      BILL V. BREWER                         3

                         OPINION
HURWITZ, Circuit Judge:
    In this 42 U.S.C. § 1983 action, three Phoenix police
officers allege that two other officers violated the Fourth and
Fourteenth Amendments when, pursuant to a state court
order, they obtained DNA samples from the plaintiffs to
exclude them as contributors of DNA at a crime scene. The
district court dismissed the complaint, and we affirm.
                              I.
                              A.
    On October 18, 2010, Phoenix Police Sergeant Sean
Drenth died from a gunshot wound to his head. His body
was found in the northwest corner of an empty lot near the
Arizona State Capitol; a shotgun was across his chest and a
second weapon by his ankle. Sergeant Drenth’s patrol car
was in the center of the lot, and his service weapon was
found just beyond the south side of the lot. More than 300
public safety personnel, the chief of police, and the mayor
quickly converged on the scene. Roughly 100 people
entered the area where Sergeant Drenth’s body was
discovered, including the three plaintiffs, who were assigned
to canine search teams.
    The police investigators assigned to the case initially
attempted to determine whether Sergeant Drenth’s death was
a homicide staged to look like a suicide or a suicide staged
to look like a homicide. Detective Warren Brewer led the
investigation with the assistance of Detective Heather
Polombo. That investigation revealed unknown male DNA
profiles on Drenth’s patrol car and weapons. Over the
ensuing months, Polombo received consent to collect DNA
samples from more than 100 individuals who had entered the
crime scene in order to eliminate them as contributors of the
4                             BILL V. BREWER

unknown DNA. Each of the approximately fifty Phoenix
Police Department officers who entered the crime scene
consented to give samples, with the exception of the three
plaintiffs and two others.
    Polombo met with the five non-consenting officers in
April 2011. She told them that they had been excluded as
suspects in any crime because “their portable radios and the
mobile digital communicators in their vehicles confirmed
their locations on the night of” Drenth’s death, and she again
requested DNA samples to exclude them as contributors of
the questioned DNA. Polombo provided each officer with a
police department “DNA Collection Fact Sheet – Drenth
Investigation” (the “DNA Memo”), explaining that their
DNA samples would be used only for this limited purpose,
and would “not be entered into [the Combined DNA Index
System (“CODIS”)]” 1 or used to identify DNA found at
future crime scenes.
                                       B.
   The five officers nonetheless continued to refuse to
provide DNA samples. Brewer and Polombo then sought
court orders pursuant to Arizona Revised Statutes § 13-
3905 2 to obtain buccal swabs—a Q-tip swab along the inside



    1
   CODIS is a “centrally-managed database linking DNA profiles culled
from federal, state, and territorial DNA collection programs, as well as
profiles drawn from crime-scene evidence, unidentified remains, and
genetic samples voluntarily provided by relatives of missing persons.”
United States v. Kincade, 379 F.3d 813, 819 (9th Cir. 2004) (en banc).
    2
        Arizona Revised Statutes § 13-3905 provides, in relevant part:
                  BILL V. BREWER                             5




A. A peace officer who is engaged, within the scope
of the officer’s authority, in the investigation of a
felony may make written application upon oath or
affirmation to a magistrate for an order authorizing the
temporary detention, for the purpose of obtaining
evidence of identifying physical characteristics, of an
identified or particularly described individual residing
in or found in the jurisdiction over which the
magistrate presides. The order shall require the
presence of the identified or particularly described
individual at such time and place as the court shall
direct for obtaining the identifying physical
characteristic evidence. The magistrate may issue the
order on a showing of all of the following:

1. Reasonable cause for belief that a felony has been
committed.

2. Procurement of evidence of identifying physical
characteristics from an identified or particularly
described individual may contribute to the
identification of the individual who committed such
offense.

3. The evidence cannot otherwise be obtained by the
investigating officer from either the law enforcement
agency employing the affiant or the department of
public safety.

                          ***

G. For the purposes of this section, “identifying
physical characteristics” includes, but is not limited to,
the    fingerprints,     palm     prints,      footprints,
measurements, handwriting, handprinting, sound of
voice, blood samples, urine samples, saliva samples,
hair samples, comparative personal appearance or
photographs of an individual.
6                          BILL V. BREWER

of the five officers’ cheeks—for DNA testing. In support of
the applications for the orders, Brewer submitted affidavits
describing the five officers’ presence at the crime scene,
noting their “potential to [have] inadvertently deposit[ed]
their DNA on the collected evidence,” and avowing that the
DNA samples “may contribute to the identification of the
individual who committed” the homicide.
    A superior court judge issued the orders, and buccal
swabs were taken from the five officers. The samples were
analyzed and the results included in investigative reports
along with the results of analysis of swabs taken from others
at the scene. The swabs are currently impounded by the
Department pursuant to Arizona Revised Statutes § 13-
4221. 3 The Department has repeatedly stated that none of
the officers is suspected of having committed any crime.
                                    C.
    On December 7, 2012, plaintiffs filed this 42 U.S.C.
§ 1983 action, claiming that Brewer and Polombo violated
the Fourth Amendment by obtaining, analyzing, and
retaining plaintiffs’ DNA.         The complaint sought
(1) nominal damages of $1.00 for each plaintiff; (2) a
declaration that the seizure of the DNA was unlawful; and


    3
    Arizona Revised Statutes § 13-4221(A) provides that DNA samples
collected in connection with a homicide must be retained for “[t]he
period of time that a person who was convicted” of the offense “remains
incarcerated for that offense or until the completion of the person’s
supervised release,” or, for cold cases, “fifty-five years or until a person
is convicted of the crime and remains incarcerated or under supervised
release for that offense.” The statute gives government entities
“discretion concerning the conditions under which biological evidence
is retained, preserved or transferred among different entities.” Id. § 13-
4221(F).
                       BILL V. BREWER                         7

(3) injunctive relief precluding defendants “from continuing
to maintain possession, custody, or control” of the DNA
samples and ordering them to destroy “samples and any
analyses and reports of Plaintiffs’ DNA samples.”
    The district court dismissed the complaint for failure to
state a claim. This appeal timely followed. We have
jurisdiction under 28 U.S.C. § 1291. “We review de novo
the district court’s granting of a motion to dismiss for failure
to state a claim,” Weiland v. Am. Airlines, Inc., 778 F.3d
1112, 1114 (9th Cir. 2015), and “accept as true the factual
allegations in [the] complaint,” Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2079 (2011). “We may affirm the district court on
any basis supported by the record.” Gonzalez v. Planned
Parenthood of L.A., 759 F.3d 1112, 1114 n.1 (9th Cir. 2014).
                              II.
    The Supreme Court has held that “using a buccal swab
on the inner tissues of a person’s cheek in order to obtain
DNA samples is a search” under the Fourth Amendment.
Maryland v. King, 133 S. Ct. 1958, 1968-69 (2013); see also
Missouri v. McNeely, 133 S. Ct. 1552, 1565 (2013) (“[A]ny
compelled intrusion into the human body implicates
significant, constitutionally protected privacy interests.”).
Thus, the issue before us is whether the defendants
“respected relevant Fourth Amendment standards” in
collecting plaintiffs’ DNA. Schmerber v. California, 384
U.S. 757, 768 (1966). Plaintiffs’ briefs argue that because
defendants “fail[ed] to obtain search warrants before taking
DNA samples” and had no “individualized suspicion that
Plaintiffs had committed criminal wrongdoing,” collection
of their DNA violated the Fourth Amendment because it
does not fall within any of the “established exceptions” to
8                         BILL V. BREWER

the warrant requirement. 4 We disagree. The superior court
orders authorizing the collection of the DNA samples fully
satisfied the warrant requirement of the Fourth Amendment.
                                  A.
    “Ordinarily, the reasonableness of a search depends on
governmental compliance with the Warrant Clause, which
requires authorities to demonstrate probable cause to a
neutral magistrate and thereby convince him to provide
formal authorization to proceed with a search by issuance of
a particularized warrant.” United States v. Kincade,
379 F.3d 813, 822 (9th Cir. 2004) (en banc). The orders
issued by the superior court pursuant to Arizona Revised
Statutes § 13-3905 were not formally denominated as search
warrants. Moreover, the state statute requires a showing of
only reasonable cause “for belief that a felony has been
committed” to support a detention order, id., § 13-
3905(A)(1)—something the Arizona Supreme Court has
defined as “less than probable cause,” State v. Rodriguez,
921 P.2d 643, 651 (Ariz. 1996)—and specifies no particular
quantum of suspicion that the evidence sought “may
contribute to the identification of the individual who
committed such offense,” § 13-3905(A)(2).
    However, when considering Fourth Amendment
challenges to evidence seized pursuant to § 13-3905 orders,
the Arizona Supreme Court has described such orders as


    4
    On appeal, plaintiffs have not developed the arguments made below
that continued possession of their DNA violates the Fourth Amendment
and that the defendants omitted material information from the
applications to the superior court. Thus, these arguments are forfeited.
See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2
(9th Cir. 2008) (declining to address argument because it was not argued
“with any specificity” on appeal).
                       BILL V. BREWER                         9

“warrants.” State v. Jones, 49 P.3d 273, 280 (Ariz. 2002).
That court has also stated that “probable cause is the standard
that must be met” for a § 13-3905 order involving a “bodily
invasion” constituting “a search under the Fourth
Amendment.” Id. at 281; see also State v. Wedding,
831 P.2d 398, 404 (Ariz. Ct. App. 1992) (“The affidavit
[supporting a § 13-3905 order for saliva and blood samples]
clearly supports the . . . finding that there was probable cause
to search and seize the defendant at the time of the
detention.”). Thus, we analyze the § 13-3905 orders in this
case, notwithstanding the more limited language of the
statute, for compliance with the Warrant Clause of the
Fourth Amendment.
    The “precise and clear” words of the Fourth Amendment
“require only three things” for a valid search warrant:
       First, warrants must be issued by neutral,
       disinterested magistrates. Second, those
       seeking the warrant must demonstrate to the
       magistrate their probable cause to believe
       that the evidence sought will aid in a
       particular apprehension or conviction for a
       particular offense. Finally, warrants must
       particularly describe the things to be seized,
       as well as the place to be searched.
Dalia v. United States, 441 U.S. 238, 255 (1979) (citations
and internal quotation marks omitted). There can be no
contest that the orders here satisfied the first and third
requirements: they were issued by a superior court judge and
described a “saliva sample” to be seized “by mouth swab”
from the person of the plaintiffs. Whether the orders satisfy
the Warrant Clause therefore turns on whether the submitted
affidavits demonstrated probable cause to believe that the
10                    BILL V. BREWER

evidence sought would aid in an apprehension or conviction
for a particular offense.
    To be sure, the orders here did not seek to obtain
evidence that the plaintiffs committed a crime. But contrary
to plaintiffs’ intimations, “[t]he critical element in a
reasonable search is not that the owner of the property,” or
in this case the person, to be searched “is suspected of
crime.” Zurcher v. Stanford Daily, 436 U.S. 547, 556
(1978). Rather, “probable cause to search . . . concerns the
connection of the items sought with crime and the present
location of the items.” United States v. O’Connor, 658 F.2d
688, 693 n.7 (9th Cir. 1981). Of course, law enforcement
must demonstrate “a nexus . . . between the item to be seized
and criminal behavior.” Warden, Md. Penitentiary v.
Hayden, 387 U.S. 294, 307 (1967). “[I]n the case of ‘mere
evidence,’ probable cause” for such a nexus “must be
examined in terms of cause to believe that the evidence
sought will aid in a particular apprehension or conviction.”
Id.
     These constitutional requirements were satisfied here.
The superior court expressly found “probable cause to
believe that the crime of Homicide had been committed.”
Plaintiffs wisely do not challenge this finding; indeed, the
affidavits detailed the date, time, victim, and crime scene of
the highly publicized death being investigated. The
affidavits also explained that DNA samples were sought
from all public safety personnel who entered the crime scene
to exclude them as depositors of the questioned DNA. It
cannot be meaningfully debated that there was probable
cause to believe the evidence sought could be found in the
place to be searched (inside of plaintiffs’ mouths). See
Illinois v. Gates, 462 U.S. 213, 230 (1983) (explaining that
probable cause is a “commonsense, practical question”).
                      BILL V. BREWER                        11

    Moreover, the affidavits plainly demonstrated “a nexus”
between the crime under investigation and the evidence
sought. Warden, 387 U.S. at 307. They stated that
“[a]pproximately 50 Phoenix Police Officers entered the
scene,” along with numerous other public safety personnel;
that all of these public safety personnel except for plaintiffs
and two other Phoenix police officers (identified by name
and badge number) had already provided samples; and that
such samples would be “analyzed for DNA and compared to
other evidence in th[e] investigation” “[i]n attempts to
identify the unknown DNA profile/s” found at the scene, and
thus “may contribute to the identification of the individual
who committed the felony offense described.”
    That plaintiffs had themselves already been excluded as
suspects does not undermine the nexus between the evidence
desired and the crime investigated; excluding public safety
personnel as the source of DNA would plainly “aid in” the
conviction of an eventual criminal defendant, by negating
any contention at trial that police had contaminated the
relevant evidence. Messerschmidt v. Millender, 132 S. Ct.
1235, 1248 n.7 (2012) (emphasis and citation omitted); see
also In re Morgenthau, 457 A.2d 472, 473-76 (N.J. Super.
Ct. App. Div. 1983) (per curiam) (affirming order
compelling collection of “blood and hair samples and finger
and palm prints” from individuals who were “not suspects”
in a homicide investigation because these “physical
exemplars constituted material evidence relevant to [the
suspect’s] guilt” and the orders, while not denominated as
warrants, “comport[ed] with all the requisites of a search
warrant”). We therefore conclude that the superior court
orders authorizing the collection of plaintiffs’ DNA satisfied
the Warrant Clause of the Fourth Amendment. Given that
conclusion, we need not address whether an exception to the
warrant requirement would have applied in the absence of
the orders.
12                    BILL V. BREWER

                              B.
    To be sure, “a search could be unreasonable, though
conducted pursuant to an otherwise valid warrant, by
intruding on personal privacy to an extent disproportionate
to the likely benefits from obtaining fuller compliance with
the law.” United States v. Torres, 751 F.2d 875, 883 (7th
Cir. 1984). The Fourth Amendment thus also requires an
analysis of “the extent of the intrusion on [plaintiffs’]
privacy interests and on the State’s need for the evidence.”
Winston v. Lee, 470 U.S. 753, 763 (1985); see also Spencer
v. Roche, 659 F.3d 142, 146 (1st Cir. 2011) (applying
reasonableness analysis to bodily search conducted pursuant
to warrant). Because “‘intrusions into the human body’”
implicate the “most personal and deep-rooted expectations
of privacy,” the Fourth Amendment requires “a discerning
inquiry into the facts and circumstances to determine
whether the intrusion was justifiable.” Winston, 470 U.S. at
760 (quoting Schmerber, 384 U.S. at 767-68).
    But no undue intrusion occurred here. The Supreme
Court has expressly held that buccal swabs are “brief and . . .
minimal” physical intrusions “‘involv[ing] virtually no risk,
trauma, or pain.’” King, 133 S. Ct. at 1979 (quoting
Schmerber, 384 U.S. at 771). A buccal swab, like a
breathalyzer test, does “not require piercing the skin and may
be conducted safely outside a hospital environment and with
a minimum of inconvenience or embarrassment.” Skinner v.
Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 625 (1989).
    Moreover, the reasonableness of a particular search
“must be considered in the context of the person’s legitimate
expectations of privacy.” King, 133 S. Ct. at 1978.
Although “policemen do not abandon their constitutional
rights upon induction into the department,” L.A. Police
Protective League v. Gates, 907 F.2d 879, 886 (9th Cir.
                         BILL V. BREWER                            13

1990) (citation and internal quotation marks omitted), the
government’s interest in the integrity of its police force “may
justify some intrusions on the privacy of police officers
which the fourth amendment would not otherwise tolerate,”
Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 489 (9th
Cir. 1986); see also Biehunik v. Felicetta, 441 F.2d 228, 231
(2d Cir. 1971) (“The policeman’s employment relationship
by its nature implies that in certain aspects of his affairs, he
does not have the full privacy and liberty from police
officials that he would otherwise enjoy.”). It was hardly
unreasonable here to ask sworn officers to provide saliva
samples for the sole purpose of demonstrating that DNA left
at a crime scene was not the result of inadvertent
contamination by on-duty public safety personnel.
    And, although we share plaintiffs’ concerns over
potential misuse of DNA samples to reveal private
information about contributors, see King, 133 S. Ct. at
1979-80, no such danger is realistically posed here. The
DNA Memo expressly guarantees plaintiffs’ DNA samples
“will be used for comparison to evidence in this report only”
and “will not be used for any research type testing, including
race, ethnicity or health,” “provided to any outside
organization for those purposes,” “entered into the employee
database,” or “entered into CODIS.” 5 The plaintiffs have
not alleged any plausible reason to believe that the Phoenix
Police Department will not abide by these limitations, and
the district court did not err in declining to speculate about
possible future abuse.



 5
    Because the complaint quoted extensively from the DNA Memo, it
was incorporated by reference and we may “assume that its contents are
true for purposes of a motion to dismiss under Rule 12(b)(6).” United
States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
14                   BILL V. BREWER

                           III.
     We AFFIRM the judgment of the district court.
