                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1369
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Ray Johnny Kraklio,                     *
                                        *
             Appellant.                 *
                                    __________

                             Submitted: May 16, 2006
                                Filed: June 27, 2006
                                 ___________

Before WOLLMAN, BRIGHT, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.

      Ray Johnny Kraklio (Kraklio), a federal probationer, appeals the district
court’s1 order modifying his conditions of probation to require Kraklio to have his
DNA collected as directed by his probation officer, pursuant to the DNA Analysis
Backlog Elimination Act of 2000 (DNA Act), 42 U.S.C. §§ 14135-14135e. We
affirm.




      1
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
I.     BACKGROUND
       Kraklio was sentenced to two years’ probation on November 29, 2004,
following his guilty plea to being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). On November 27, 2005, the United States Probation Office
directed Kraklio to appear on December 13, 2005, to submit a blood sample for the
purpose of gathering his DNA pursuant to the DNA Act. Kraklio refused. The
Probation Office moved to modify the conditions of Kraklio’s release to require
Kraklio’s cooperation in the DNA collection. Kraklio resisted the motion, arguing
collection of his DNA constitutes an unreasonable search and seizure in violation of
the Fourth Amendment. On January 19, 2006, the district court, in a thorough and
well reasoned order, granted the Probation Office’s motion, but stayed enforcement
pending Kraklio’s appeal.

II.   DISCUSSION
      We review de novo the district court’s conclusion the DNA Act does not violate
the Fourth Amendment. See United States v. Newton, 259 F.3d 964, 966 (8th Cir.
2001).

       The DNA Act mandates the collection of DNA samples by the United States
Probation Office from individuals on probation, parole, or supervised release, who
have been convicted of certain qualifying federal offenses. 42 U.S.C. § 14135a(a)(2).
Kraklio’s felon in possession conviction is a qualifying offense. See id.
§ 14135a(d)(1) (including “[a]ny felony” as a qualifying offense). Under the DNA
Act, DNA samples are sent to the Federal Bureau of Investigation laboratory for
inclusion in the Combined DNA Index System (CODIS). See generally id. § 14132;
see also H.R. Rep. 106-900(I), at 8 (2000). DNA records may be used only for law
enforcement identification purposes by criminal justice agencies, in judicial
proceedings, and for criminal defense purposes. See 42 U.S.C. § 14132(b)(3). DNA




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records are expunged from CODIS when a conviction is overturned, no charge is filed,
charges have been dismissed, or the charge resulted in acquittal. See id.
§ 14132(d)(1)(A).

      The Fourth Amendment to the United States Constitution provides “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” The government does not
dispute the drawing of blood for purposes of DNA collection is a search subject to
Fourth Amendment scrutiny. See Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S.
602, 616 (1989). The question, then, is whether the search is reasonable. United
States v. Knights, 534 U.S. 112, 118 (2001) (“The touchstone of the Fourth
Amendment is reasonableness.”); see also Samson v. California, 547 U.S. ___, No.
04-9728, slip op. at 11 n.4 (June 19, 2006).

        Every federal circuit considering DNA indexing statutes has upheld the statutes
as constitutional under the Fourth Amendment. See Nicholas v. Goord, 430 F.3d 652,
671 (2d Cir. 2005) (reviewing comparable state DNA indexing statute); United States
v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005) (reviewing the DNA Act), petition for
cert. filed, Dec. 2, 2005 (No. 05-7955); Padgett v. Donald, 401 F.3d 1273, 1280 (11th
Cir.) (reviewing comparable state DNA indexing statute), cert. denied, 126 S. Ct. 352
(2005); United States v. Kincade, 379 F.3d 813, 830-32 (9th Cir. 2004) (en banc)
(reviewing the DNA Act), cert. denied, 125 S. Ct. 1638 (2005); Green v. Berge, 354
F.3d 675, 677-79 (7th Cir. 2004) (reviewing comparable state DNA indexing statute);
Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413-14 (5th Cir. 2004) (per curiam)
(reviewing the DNA Act); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.
2003) (reviewing the DNA Act); Jones v. Murray, 962 F.2d 302, 306-08 (4th Cir.
1992) (reviewing comparable state DNA indexing statute).

      The only disagreement among the circuits is what analytical approach to use in
upholding the statutes. The majority of circuits employ a reasonableness standard,

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determining whether the search and seizure is reasonable based on the totality of the
circumstances surrounding the search and seizure and the nature of the search and
seizure itself. See Sczubelek, 402 F.3d at 184-86; Padgett, 401 F.3d at 1280;
Kincade, 379 F.3d at 832; Groceman, 354 F.3d at 413; Jones, 962 F.2d at 307. Under
this approach, the court balances “the degree to which [the search and seizure]
intrudes upon an individual’s privacy” with “the degree to which [the search and
seizure] is needed for the promotion of legitimate governmental interests.” Knights,
534 U.S. at 119 (quotation omitted); see also Samson, slip op. at 3. A minority of
circuits apply a special needs approach, examining whether special needs exist which
sufficiently justify a search and seizure absent a warrant and probable cause. See
Nicholas, 430 F.3d at 671; Green, 354 F.3d at 679; Kimler, 335 F.3d at 1146; cf.
Samson, slip op. at 11 n.4. The district court in this case upheld the constitutionality
of the DNA Act using the reasonableness standard.

       The circuits favoring the reasonableness standard have concluded “the purpose
for the collection of DNA goes well beyond the supervision by the Probation Office
of an individual on supervised release,” Sczubelek, 402 F.3d at 184, which was the
situation in the Supreme Court’s leading special needs approach case involving
supervision of probationers, Griffin v. Wisconsin, 483 U.S. 868 (1987). These circuits
therefore apply the more rigorous totality of the circumstances test outlined in Knights
as the more appropriate precedent. See, e.g., Sczubelek, 402 F.3d at 184; Padgett, 401
F.3d at 1279-80; but see Nicholas, 430 F.3d at 667 (“We therefore continue to hold
suspicionless searches to the higher standard of review embodied in the special-needs
inquiry.”). We agree with this reasoning. Following the majority of circuits having
addressed this issue, we employ the Knights reasonableness standard to determine the
constitutionality of the DNA Act.

       The Third Circuit applied the Knights analysis and found the DNA Act
constitutional. See Sczubelek, 402 F.3d at 184-86. Given probationers’ diminished
privacy rights, Samson, slip op. at 4 (quoting Knights, 534 U.S. at 119), the minimal


                                          -4-
intrusion involved in obtaining DNA samples, and the legitimate governmental
interest in using DNA as a crime investigating tool, we adopt the reasoning in
Sczubelek and hold, based on the totality of the circumstances, the collection of DNA
under the DNA Act for inclusion in the CODIS database does not constitute an
unreasonable search and seizure in violation of the Fourth Amendment.

III.  CONCLUSION
      We affirm the district court’s order modifying Kraklio’s conditions of
probation.
                    ______________________________




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