                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ELIZABETH AIDA HASKELL;                  
REGINALD ENTO; JEFFREY PATRICK
LYONS, JR.; AAKASH DESAI, on
behalf of themselves and others
similarly situated,
                                                No. 10-15152
                Plaintiffs-Appellants,
                  v.                             D.C. No.
                                             3:09-cv-04779-CRB
KAMALA D. HARRIS,* Attorney
                                                  OPINION
General of California; EVA
STEINBERGER, Assistant Bureau
Chief for DNA Programs,
California Department of Justice,
              Defendants-Appellees.
                                         
        Appeal from the United States District Court
          for the Northern District of California
        Charles R. Breyer, District Judge, Presiding

                     Argued and Submitted
           July 13, 2010—San Francisco, California

                     Submission Withdrawn
                         June 2, 2011

                         Resubmitted
                       November 1, 2011

                    Filed February 23, 2012

  *Kamala D. Harris is substituted for her predecessor, Edmund G.
Brown, as Attorney General of California, pursuant to Fed. R. App. P.
43(c)(2).

                               1949
1950                    HASKELL v. HARRIS
    Before: William A. Fletcher and Milan D. Smith, Jr.,
           Circuit Judges, and James Dale Todd,
                  Senior District Judge.**

            Opinion by Judge Milan D. Smith, Jr.;
            Dissent by Judge William A. Fletcher




  **The Honorable James Dale Todd, Senior District Judge for the U.S.
District Court for Western Tennessee, sitting by designation.
1952                 HASKELL v. HARRIS




                        COUNSEL

Michael T. Risher (argued), American Civil Liberties Union
Foundation of Northern California, Inc., San Francisco, Cali-
                      HASKELL v. HARRIS                   1953
fornia, and Peter C. Meier and Eric A. Long, Paul, Hastings,
Janofsky & Walker LLP, San Francisco, California, for the
plaintiffs-appellants.

Daniel J. Powell, Deputy Attorney General (argued), Kamala
D. Harris, Attorney General of California, James M. Humes,
Chief Deputy Attorney General, Jonathan K. Renner, Senior
Assistant Attorney General, Constance L. LeLouis, Supervis-
ing Deputy Attorney General, and Enid A. Camps, Deputy
Attorney General, San Francisco, California, for the
defendants-appellees.

Daniel J. Broderick, Federal Defender, David Porter, Assis-
tant Federal Defender, Rachelle Barbour, Research and Writ-
ing Attorney, Sacramento, California, and John T.
Philipsborn, San Francisco, California, for amici curiae Fed-
eral Defender of the Eastern and Southern Districts of Califor-
nia, California Attorneys for Criminal Justice, and the
National Association of Criminal Defense Lawyers.

Jonathan S. Franklin, Tillman J. Breckenridge, and Mark T.
Emery, Fulbright & Jaworski L.L.P., Washington, D.C., for
amicus curiae DNA Saves.

Anne Marie Schubert, Albert C. Locher, Jan Scully, and W.
Scott Thorpe, Sacramento, California, for amicus curiae Cali-
fornia District Attorneys Association.


                         OPINION

M. SMITH, Circuit Judge:

   Plaintiffs-Appellants Elizabeth Aida Haskell, Reginald
Ento, Jeffrey Patrick Lyons, Jr., and Aakash Desai (collec-
tively, Plaintiffs) appeal the district court’s denial of their
motion for a preliminary injunction to stop the enforcement of
1954                  HASKELL v. HARRIS
the 2004 Amendment, infra, to California’s DNA and Foren-
sic Identification Data Base and Data Bank Act of 1998
(DNA Act), Cal. Penal Code § 296(a)(2)(C), which amend-
ment requires law enforcement officers to collect DNA sam-
ples from all adults arrested for felonies. They contend that
the 2004 Amendment violates their Fourth Amendment right
to be free of unreasonable searches and seizures.

   We assess the constitutionality of the 2004 Amendment by
considering the “totality of the circumstances,” balancing the
arrestees’ privacy interests against the Government’s need for
the DNA samples. Law enforcement officials collect a DNA
sample from a buccal swab of the arrestee’s mouth, a de
minimis intrusion that occurs only after a law enforcement
officer determines there is probable cause to believe that the
individual committed a felony. Law enforcement officers ana-
lyze only enough DNA information to identify the individual,
making DNA collection substantially similar to fingerprint-
ing, which law enforcement officials have used for decades to
identify arrestees, without serious constitutional objection.
Moreover, state and federal statutes impose significant crimi-
nal and civil penalties on persons who misuse DNA informa-
tion. On the other side of the balance, DNA analysis is an
extraordinarily effective tool for law enforcement officials to
identify arrestees, solve past crimes, and exonerate innocent
suspects. After weighing these factors, we conclude that the
Government’s compelling interests far outweigh arrestees’
privacy concerns. Thus, we hold that the 2004 Amendment
does not violate the Fourth Amendment, and we affirm.

                      BACKGROUND

   In 1998, the California legislature enacted the DNA Act,
Cal. Stat. Ch. 696, § 2, which requires DNA testing of indi-
viduals convicted of certain offenses. The DNA Act is
intended to aid local, state, and federal law enforcement agen-
cies “in the expeditious and accurate detection and prosecu-
tion of individuals responsible for sex offenses and other
                      HASKELL v. HARRIS                    1955
crimes, the exclusion of suspects who are being investigated
for these crimes, and the identification of missing and uniden-
tified persons, particularly abducted children.” Cal. Penal
Code § 295(c).

   Law enforcement use of California’s DNA database has
proven remarkably effective. Since 1998, California law
enforcement officials have identified more than 10,000
offenders by using their DNA. To build on the positive results
achieved through the implementation of the DNA Act, in
2004, California voters approved Proposition 69, the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act
(the 2004 Amendment), which expanded the DNA Act’s test-
ing requirement to include “any adult person arrested or
charged with any felony offense . . . immediately following
arrest, or during the booking . . . process or as soon as admin-
istratively practicable after arrest, but, in any case, prior to
release on bail or pending trial or any physical release from
confinement or custody.” Cal. Penal Code §§ 296(a)(2)(C);
296.1(a)(1)(A). Proposition 69 cited the “critical and urgent
need to provide law enforcement officers and agencies with
the latest scientific technology available for accurately and
expeditiously identifying, apprehending, arresting, and con-
victing criminal offenders and exonerating persons wrongly
suspected or accused of crime.”

   The 2004 Amendment became effective on January 1,
2009. Officers usually collect the DNA sample from a buccal
swab that is gently swept along an arrestee’s inner cheek. An
arrestee’s failure to cooperate with the collection is a misde-
meanor. Cal. Penal Code § 298.1(a).

   Once officers collect the DNA sample, it is sent to a State
laboratory, which creates a DNA profile of the arrestee. The
laboratory creates a profile only for identification purposes by
analyzing thirteen genetic markers known as “junk DNA,”
which are not linked to any known genetic traits. The labora-
tory uses “short tandem repeat” technology (STR), which is
1956                  HASKELL v. HARRIS
the repeated sequence of base pairs at each of the thirteen
markers. The variation in the number of sequences at each
marker creates a unique profile that law enforcement uses for
identification. “One person might have two copies of the first
marker that are four and eight repeats long, copies of the sec-
ond that are eleven and twenty-three copies long, copies of
the third that are three and ten copies long, and so on through
all thirteen markers.” United States v. Mitchell, 652 F.3d
387,401 (3d Cir. 2011) (en banc) (quoting Henry T. Greely et
al., Family Ties: The Use of DNA Offender Databases to
Catch Offenders’ Kin, 34 J.L. Med. & Ethics 248, 250
(2006)). The odds that two people share identical sequences
on all thirteen markers are “one in several hundred billion.”
Id.

   The State laboratory then uploads the DNA profile into the
Combined DNA Index System (CODIS), a nationwide collec-
tion of federal, state, and local DNA profiles. “Beyond the
STR-generated DNA profile, CODIS records contain only an
identifier for the agency that provided the DNA sample, a
specimen identification number, and the name of the person-
nel associated with the analysis.” United States v. Kincade,
379 F.3d 813, 819 n.8 (9th Cir. 2004) (en banc) (citing H.R.
Rep. No. 106-900(I), at *27 (2000)).

   When an arrestee’s DNA profile is uploaded into CODIS,
it is compared to the DNA samples collected from crime
scenes. If the database reveals a “hit,” the offender DNA sam-
ple is tested again for confirmation. If the test confirms a
match, CODIS informs the laboratory that submitted the
crime scene sample of the identity of the matching DNA pro-
file, and the laboratory sends that information to law enforce-
ment.

   Only law enforcement officials are permitted to access a
DNA profile, and they may only use the DNA to identify
criminal suspects. Cal. Penal Code §§ 295.1(a); 299.5(f).
They may not use the sample to reveal other traits, such as
                        HASKELL v. HARRIS                      1957
medical conditions. Unauthorized access or disclosure of
DNA information is punishable under State law by up to a
year in prison and a fine of up to $50,000. Cal. Penal Code
§ 299.5(i). Federal law imposes similar penalties for unautho-
rized use of, or access to, CODIS. See 42 U.S.C. § 14133(c),
14135e(c).

   An arrestee who is not ultimately convicted may ask either
the California Department of Justice or the trial court to order
the sample destroyed and the DNA profile expunged. Cal.
Penal Code § 299. The individual must await the expiration of
the statute of limitations for the crime(s) for which he or she
was charged before requesting expungement, unless prosecu-
tors dismiss the charges sooner. The court may order the
expungement 180 days after the arrestee’s request. Id.

   After the police determined that probable cause existed in
each case, Plaintiffs were arrested for felonies in California
and provided DNA samples. However, they were never con-
victed of the felonies for which they were charged. On Octo-
ber 7, 2009, Plaintiffs filed a class-action complaint against
the State officials who administer the DNA collection system.
The class consists of “persons who are required to provide a
DNA sample pursuant to § 296(a)(2)(C) solely as a result of
being arrested for a felony.” Their lawsuit, filed under 42
U.S.C. § 1983, alleges that the 2004 Amendment violates
their Fourth Amendment rights to be free from unreasonable
searches and seizures, and their Fourteenth Amendment due
process rights.1 They then sought a preliminary injunction to
enjoin California from collecting DNA samples from people
who were arrested, but not convicted.

   The district court provisionally certified the class. On
December 23, 2009, the district court denied the preliminary
injunction, concluding that, as a matter of law, Plaintiffs had
  1
  In their appellate filings, Plaintiffs have merged their Fourteenth
Amendment claim into their Fourth Amendment claim.
1958                   HASKELL v. HARRIS
not demonstrated a likelihood of success on the merits
because California’s DNA collection requirement does not
violate the Fourth Amendment. The district court also con-
cluded that Plaintiffs did not allege irreparable harm, the bal-
ance of equities tipped in favor of the State, and injunctive
relief likely would not be in the public interest. Plaintiffs
timely appealed.

    JURISDICTION AND STANDARD OF REVIEW

   We have jurisdiction under 28 U.S.C. § 1292(a)(1). We
review the district court’s factual determinations for clear
error. Klein v. City of San Clemente, 584 F.3d 1196, 1200 (9th
Cir. 2009). We review the district court’s application of the
preliminary injunction balancing test for abuse of discretion
and the legal conclusions de novo. Stormans, Inc. v. Selecky,
586 F.3d 1109, 1119 (9th Cir. 2009). “To determine whether
the district court abused its discretion, the reviewing court
must consider whether the decision was based on a consider-
ation of the relevant factors and whether there has been a
clear error of judgment.” DISH Network Corp. v. FCC, 653
F.3d 771, 776 (9th Cir. 2011) (citation and internal quotation
marks omitted).

                        DISCUSSION

   A federal court may grant a preliminary injunction only if
the plaintiff establishes four elements: (1) likelihood of suc-
cess on the merits; (2) likelihood of suffering irreparable harm
absent a preliminary injunction; (3) the balance of equities
tips in the plaintiff’s favor; and (4) injunctive relief is in the
public interest. Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). If we agree with the district court’s conclu-
sion that Plaintiffs have not satisfied their burden of establish-
ing the first element, “we need not consider the remaining
three.” DISH Network Corp., 653 F.3d at 777; see also Adver-
tise.com, Inc. v. AOL Adver., Inc., 616 F.3d 974, 982 (9th Cir.
                      HASKELL v. HARRIS                    1959
2010); Doe v. Reed, 586 F.3d 671, 681 n.14 (9th Cir. 2009),
aff’d 130 S. Ct. 2811 (2010).

   The likelihood of Plaintiffs’ success on the merits hinges
on whether California’s mandatory DNA collection require-
ment under the 2004 Amendment, as applied to felony
arrestees who have not been convicted, violates the Fourth
Amendment. Plaintiffs challenge the 2004 Amendment, Cali-
fornia Penal Code § 296(a)(2)(C), both facially and as applied
to them. To successfully mount a facial challenge, the Plain-
tiffs “must establish that no set of circumstances exists under
which the [2004 Amendment] would be valid,” United States
v. Salerno, 481 U.S. 739, 745 (1987), while their as-applied
challenge only requires a demonstration that the 2004 Amend-
ment is unconstitutional as applied to the Plaintiffs. Thus, if
we find that the 2004 Amendment is constitutional as applied
to the provisionally certified class, the facial challenge also
fails.

I.   Analytical framework

   [1] The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV (emphasis added).

   [2] It is undisputed that a compelled DNA extraction is a
“search” for Fourth Amendment purposes. See, e.g., Kincade,
379 F.3d at 821 n.15 (“The compulsory extraction of blood
for DNA profiling unquestionably implicates the right to per-
sonal security embodied in the Fourth Amendment, and thus
constitutes a ‘search’ within the meaning of the Constitu-
tion.”). The question before us is whether California’s DNA
collection requirement under the 2004 Amendment is an
unreasonable search. In line with the Constitution’s plain text,
“[t]he touchstone of our analysis under the Fourth Amend-
ment is always ‘the reasonableness in all the circumstances of
the particular governmental invasion of a citizen’s personal
1960                  HASKELL v. HARRIS
security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-09
(1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).

   We apply the “totality of the circumstances” balancing test
to determine whether a warrantless search is reasonable. See
Samson v. California, 547 U.S. 843, 848 (2006) (applying
totality of the circumstances test to determine whether a man-
datory search as a condition of parole violates the Fourth
Amendment); United States v. Kriesel, 508 F.3d 941, 946-47
(9th Cir. 2007) (applying totality of the circumstances test to
mandatory DNA collection from convicted federal felons).
Under the totality of the circumstances test, “[w]hether a
search is reasonable is determined by assessing, on the one
hand, the degree to which it intrudes upon an individual’s pri-
vacy, and on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.” Samson, 547
U.S. at 848 (citation and internal quotation marks omitted).

   Plaintiffs contend that we may only consider the totality of
the circumstances if we first find that the 2004 Amendment
satisfies a “special needs” exception to the Fourth Amend-
ment. In Kriesel, we explicitly rejected the special needs test
when we applied the totality of the circumstances analysis to
the mandatory DNA collection requirement without first
determining whether a special need existed. 508 F.3d at 946.
Although Kriesel involved DNA collection from convicted
felons, Plaintiffs cite no precedent that would require the
“special needs” test for DNA collection from arrestees to
assess the constitutionality of a search conducted for law
enforcement purposes. Interestingly, the Supreme Court even
applied the totality of the circumstances test to determine
whether strip searches of pretrial detainees were constitu-
tional. Bell v. Wolfish, 441 U.S. 520, 559-60 (1979); see also
Mitchell, 652 F.3d at 403 (selecting the totality of the circum-
stances analysis over the special needs test to assess the con-
stitutionality of a federal requirement that pretrial detainees
provide DNA samples as a condition of release). Accordingly,
                           HASKELL v. HARRIS                            1961
we apply only the totality of the circumstances analysis to
Plaintiffs’ challenge to the 2004 Amendment.

II.   Past cases involving compelled DNA testing

   [3] The constitutionality of California’s requirement that
all felony arrestees provide DNA samples is a question of first
impression for us.2 However, in four cases, we have applied
the totality of the circumstances analysis and upheld manda-
tory DNA collection, from persons who have been convicted
of felonies.

  In Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), we upheld
a state law that required certain convicted felons to provide
DNA blood samples. Applying a totality of the circumstances
analysis, we concluded that the statute did not violate the
  2
  Two recent opinions addressed the constitutionality of such require-
ments, but we are not bound by either.
  In United States v. Pool, 621 F.3d 1213 (9th Cir. 2010), a three-judge
panel of our court upheld a federal statute that required DNA collection
as a condition of pre-trial release. The case was called en banc, thereby
vacating the panel opinion. On September 19, 2011, before an en banc
panel heard argument, the appeal was dismissed as moot because the
defendant had pleaded guilty. Because the panel opinion was vacated, we
do not rely on Pool’s reasoning.
   The California Court of Appeal, in People v. Buza, 197 Cal. App. 4th
1424 (Ct. App. 2011), held that California’s DNA Act’s requirement for
felony arrestees to provide their DNA under the 2004 Amendment violates
the United States Constitution. We are not bound by Buza for three rea-
sons. First, federal courts are not required to follow state courts’ interpre-
tations of federal law. See Congoleum Corp. v. DLW Aktiengesellschaft,
729 F.2d 1240, 1242 (9th Cir. 1984). Second, Buza relies primarily on
Ninth Circuit dissents, not the controlling, majority opinions. Finally, the
California Supreme Court granted review of Buza on October 19, 2011,
thereby automatically depublishing Buza. Cal. Rules of Court 8.1105(e);
8.1115. “Although we are not precluded from considering unpublished
state court opinions, we are not bound by them either.” Nunez by Nunez
v. City of San Diego, 114 F.3d 935, 943 n.4 (9th Cir. 1997) (internal cita-
tion omitted).
1962                  HASKELL v. HARRIS
Fourth Amendment because of “the reduced expectations of
privacy held by persons convicted of one of the felonies to
which [the statute] applies, the blood extractions’ relatively
minimal intrusion into these persons’ privacy interests, the
public’s incontestable interest in preventing recidivism and
identifying and prosecuting murderers and sexual offenders,
and the likelihood that a DNA data bank will advance this
interest[.]” Id. at 1562.

   In Kincade, we upheld a requirement that people convicted
of certain serious federal felonies provide DNA blood sam-
ples. 379 F.3d at 840. The plurality of the en banc court
applied the totality of the circumstances analysis and con-
cluded that the compelled DNA collection “can only be
described as minimally invasive — both in terms of the bodily
intrusion it occasions, and the information it lawfully pro-
duces.” Id. at 838. On the other side of the balancing test, the
plurality concluded that the DNA collection helps ensure that
a parolee complies with requirements of release, reduces
recidivism, and “helps bring closure to countless victims of
crime who long have languished in the knowledge that perpe-
trators remain at large.” Id. at 839.

   Similarly, in Kriesel, we upheld an amendment to the fed-
eral DNA collection act, which requires DNA collection from
all persons convicted of federal felonies. We held that, under
the totality of the circumstances, the statute is constitutional
“because the government’s significant interests in identifying
supervised releasees, preventing recidivism, and solving past
crimes outweigh the diminished privacy interests that may be
advanced by a convicted felon currently serving a term of
supervised release.” 508 F.3d at 950.

  Most recently, in Hamilton v. Brown, 630 F.3d 889 (9th
Cir. 2011), we held that California’s requirement that prison
inmates must provide blood samples for DNA identification
comports with the Fourth Amendment.
                       HASKELL v. HARRIS                    1963
   Rise, Kincade, Kriesel, and Hamilton involved DNA
searches of people who have been convicted of felonies. We
acknowledge that convicted persons have lesser privacy
expectations than persons who have only been arrested for
felonies. See United States v. Scott, 450 F.3d 863, 873 (9th
Cir. 2006) (holding that a defendant “out on his own recogni-
zance before trial” has privacy interests “far greater than a
probationer’s.”). However, the general principles outlined in
these cases are instructive for our totality of the circumstances
analysis.

III.   Friedman v. Boucher

   Before applying the totality of the circumstances analysis
to the 2004 Amendment, we must address Plaintiffs’ claim
that Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009)
requires us to find, as a matter of law, that the 2004 Amend-
ment is unconstitutional.

   In Friedman, plaintiff Kenneth Friedman pled guilty in
Montana to sexual intercourse without consent, in 1980. Id. at
851. He was released from prison in 2001, at which point he
was not on parole or otherwise under state supervision. Mon-
tana law required Friedman to submit a DNA sample, but he
never did. In March 2003, after he had moved to Las Vegas,
Friedman was incarcerated as a pre-trial detainee on unrelated
charges, and, at the direction of a deputy district attorney, a
police detective forced Friedman to provide DNA via a buccal
swab. Id. No Nevada statute authorized the collection of
DNA, nor were there any limits on the use of the information
derived from Friedman’s DNA. Friedman sued under 42
U.S.C. § 1983, alleging a violation of his Fourth Amendment
rights. The district court found that the defendants had quali-
fied immunity and dismissed the case. Id.

  We found that the Montana statute did not provide Nevada
police with authority to collect Friedman’s DNA sample, nor
did the search constitute a “special need” that is exempt from
1964                  HASKELL v. HARRIS
the Warrant Clause. Id. at 853-54. Although we did not
explicitly apply the totality of the circumstances analysis, we
briefly assessed the “reasonableness” of the Nevada officer’s
actions and distinguished the case from Kincade and Kriesel
because Friedman was not on parole or otherwise under
police supervision. Id. at 857-58. Accordingly, we reversed
the district court, concluding:

    The warrantless, suspicionless, forcible extraction of
    a DNA sample from a private citizen violates the
    Fourth Amendment. The actions of the officers were
    not justified under the ‘special needs’ exception, reli-
    ance on an extraterritorial statute, or on general
    Fourth Amendment principles. The search and sei-
    zure of Friedman’s DNA violated the Constitution.

Id. at 858.

   Although Friedman contains very broad dicta that Plaintiffs
have construed as requiring us to find that all DNA collection
from felony arrestees is per se unconstitutional, its holding is
expressly limited to the unique set of facts in that case. See
Friedman, 580 F.3d at 851 (“Because the forcible taking of
the DNA sample under these circumstances violated Fried-
man’s clearly established Fourth Amendment rights, we
reverse.”) (emphasis added). Thus, Friedman requires us to
find the 2004 Amendment unconstitutional only if we con-
clude that the circumstances of that case are sufficiently simi-
lar to the facts here. We conclude that Friedman differs
significantly from this case for five reasons.

   First, the DNA collection in Friedman was conducted at the
whim of one deputy district attorney, acting without any statu-
tory authority. Although the Las Vegas police attempted to
collect the DNA under the Montana statute, we held that they
were not allowed to do so because the Montana statute did not
apply extraterritorially. See Friedman, 580 F.3d at 854
(“Defendants were Nevada officials searching a Nevada citi-
                       HASKELL v. HARRIS                     1965
zen in the state of Nevada for Nevada law enforcement pur-
poses. They are not entitled to justify their search with a
Montana statute.”) In contrast, the DNA collected in Califor-
nia from the Plaintiffs was approved in a statewide ballot ref-
erendum, which is “a basic instrument of democratic
government[.]” Eastlake v. Forest City Enters, Inc., 426 U.S.
668, 679 (1976); see also Southern Alameda Spanish Speak-
ing Org. v. City of Union City, 424 F.2d 291, 294 (9th Cir.
1970) (describing the referendum as “an exercise by the vot-
ers of their traditional right through direct legislation to over-
ride the views of their elected representatives as to what
serves the public interest.”). Millions of California voters con-
sidered the reasonableness of collecting DNA from arrestees,
in stark contrast to the search in Friedman.

   Second, the police in Friedman singled out one individual
for a search. In contrast, the California DNA Act is program-
matic and applies to all felony arrestees. California police
officers lack any discretion to choose which individuals are
subject to DNA collection. Because officers in California can-
not choose the subjects of DNA collection, there is far less
potential for abuse or arbitrary action. “An essential purpose
of a warrant requirement is to protect privacy interests by
assuring citizens subject to a search or seizure that such intru-
sions are not the random or arbitrary acts of government
agents.” Skinner v. Ry Labor Executives’ Ass’n, 489 U.S. 602,
621-22 (1989). “[S]tandardized criteria . . . or [an] established
routine” can prevent a search from being “a ruse for a general
rummaging in order to discover incriminating evidence.”
Florida v. Wells, 495 U.S. 1, 4 (1990); see also United States
v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007) (“Courts have
acknowledged that the presence of such discretion affects the
balancing of interests[.]”).

   Third, the detective “forced Friedman’s jaw open and
forcefully took a buccal swab from the inside of Friedman’s
mouth.” Friedman, 580 F.3d at 851. This use of force
weighed heavily in our reasonableness analysis. Id. at 856-57.
1966                  HASKELL v. HARRIS
In contrast, California arrestees typically swipe the buccal
swab along their own mouths; thus law enforcement officials
do not usually use force. Although the 2004 Amendment
allows law enforcement officials to compel the taking of
DNA samples, a supervisor must first provide written
approval for the use of force, and the force must “be preceded
by efforts to secure the voluntary compliance with this sec-
tion.” Cal. Penal Code § 298.1(c)(1)(C).

   Fourth, the California DNA Act imposes criminal penalties
on people who misuse DNA information, Cal. Penal Code
§ 299.5(i); Nevada had no such safeguards because no statute
authorized the DNA collection. Friedman’s DNA theoreti-
cally could have been accessed by anyone and used for any
purpose, not just identification. In Rise, the restrictions on
access to DNA information weighed in favor of finding the
statute reasonable. 59 F.3d at 1561.

   Finally, the California DNA Act is clearly intended to
allow law enforcement officials to identify criminal suspects,
a purpose that we expressly approved in Rise. See 59 F.3d at
1560 (“[E]veryday ‘booking’ procedures routinely require
even the merely accused to provide fingerprint identification,
regardless of whether investigation of the crime involves fin-
gerprint evidence.”). It is unclear what purpose the DNA col-
lection in Friedman was intended to serve because it was not
authorized by any Nevada statute or regulation. In a recent en
banc opinion upholding a federal requirement for DNA col-
lection as a condition of pretrial release, the Third Circuit
declined to follow Friedman because it “did not consider the
identification purpose of DNA samples[.]” Mitchell, 652 F.3d
at 413 n.23. We agree with the Third Circuit’s reasoning on
this point.

   Our dissenting colleague claims that Friedman “requires us
to hold that Proposition 69 violates the Fourth Amendment,”
yet he glosses over the significant differences we cite between
that case and this one. The search in Friedman raised far more
                      HASKELL v. HARRIS                   1967
significant Fourth Amendment concerns than does the case
before us because there was no statutory authorization for the
search, authorities singled out one individual, and there were
no restrictions on the access to, or use of, the DNA informa-
tion. Accordingly, the “reasonableness” analysis of Friedman
is inapposite here, its holding does not bind us, and we pro-
ceed to apply a totality of the circumstances test to the spe-
cific facts of this case.

IV.   Totality of the circumstances

   In assessing the totality of the circumstances, we balance
the individual’s privacy interests against the Government’s
interests in prison administration and law enforcement. Sam-
son, 547 U.S. at 848.

A.    Felony arrestees’ privacy interests

   The 2004 Amendment does not provide the Government
carte blanche to take buccal swabs from anyone and every-
one. It applies only to persons arrested on suspicion of having
committed a felony. Before individuals can be required to
give a buccal swab DNA sample under the 2004 Amendment,
a law enforcement officer must determine that there is proba-
ble cause to suspect that person of having committed a felony.

   Even critics of mandatory DNA sampling concede that a
felony arrestee has a significantly diminished expectation of
privacy. See Kincade, 379 F.3d at 864 (Reinhardt, J., dissent-
ing) (“Arrestees’ privacy interests, too, appear to be signifi-
cantly reduced.”). Upon arrest, individuals are often booked
and placed in a jail cell pending arraignment or bail, and at
that point they are typically subjected to numerous degrading
physical and emotional intrusions. They may be subjected to
visual body cavity searches, Bell, 441 U.S. at 558 & n.39
(upholding searches where male inmates “must lift [their]
genitals and bend over to spread [their] buttocks for visual
inspection” and “[t]he vaginal and anal cavities of female
1968                       HASKELL v. HARRIS
inmates also are visually inspected”); Bull v. City & Cnty. of
San Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010) (en
banc) (same); be monitored by guards of the opposite sex
while they shower and use the toilet, Johnson v. Phelan, 69
F.3d 144, 145 (7th Cir.1995); be restrained and pepper-
sprayed, Garrett v. Athens-Clarke Cnty., Ga., 378 F. 3d 1274,
1278 (11th Cir. 2004); have their telephone access restricted,
Valdez v. Rosenbaum, 302 F.3d 1039, 1048-49 (9th Cir.
2002); occasionally be housed with violent detainees who
leave them “with facial injuries that require[ ] surgery, Sch-
oelch v. Mitchell, 625 F.3d 1041, 1043 (8th Cir. 2010); and
be “in lockdown for as much as 23½ hours a day, always
shackled in chains, even when taking a shower or making a
phone call, and rarely being allowed to see daylight and
breathe fresh air.” Jeff German, Conditions at jail ‘harsh’ but
court can’t change them, Las Vegas Sun (Oct. 28, 2008). The
dissent suggests, without any authority for his claim, that
security interests and other exigent circumstances allow these
privacy intrusions, but not DNA sampling. Just as such intru-
sive jail-related conditions could not lawfully be imposed on
ordinary citizens, neither does the 2004 Amendment impose
the taking of buccal DNA swabs from ordinary citizens.3

   We evaluate Plaintiffs’ allegations that the 2004 Amend-
ment is unreasonable against this backdrop of diminished pri-
vacy rights. We evaluate two distinct claims of privacy
intrusion: the physical collection of the DNA, and the analysis
of the information contained in that sample.
  3
    Plaintiffs contend that, because approximately one-third of arrestees
are never convicted, the 2004 Amendment results in the Government’s
maintaining a database of DNA profiles of innocent citizens. This argu-
ment ignores the fact that an arrestee who is not convicted may ask the
trial court to expunge the DNA profile from the database. Cal. Penal Code
§ 299(b). This process effectively addresses Plaintiffs’ concerns that Cali-
fornia will build a database of DNA profiles of people who are ultimately
found innocent.
                          HASKELL v. HARRIS                        1969
  1.   The physical intrusiveness of the search

   [4] Nearly half a century ago, the Supreme Court upheld
as “reasonable” a hospital’s extraction of a blood sample,
which was done “[a]t the direction of a police officer” who
was investigating a person suspected of driving under the
influence. Schmerber v. California, 384 U.S. 757, 758, 771
(1966). See also Skinner, 489 U.S. at 616 (“[I]t is obvious that
this physical intrusion, penetrating beneath the skin, infringes
an expectation of privacy that society is prepared to recognize
as reasonable.”) . Like the Plaintiffs in this case, the suspect
in Schmerber had not yet been convicted of a crime.

   [5] The typical modern DNA collection procedure—the
buccal swab—is far less invasive than the blood test approved
in Schmerber. In the buccal swab DNA sampling, a cotton
swab is briefly inserted into the person’s mouth; in the typical
blood extraction (such as the one addressed in Schmerber), a
needle must be inserted into a blood vessel for a perceptible
amount of time. The buccal swab cannot seriously be viewed
as an unacceptable violation of a person’s bodily integrity.4
See United States v. Amerson, 483 F.3d 73, 84 n.11 (2d Cir.
2007) (“[A] cheek swab can be taken in seconds without any
discomfort.”); Jules Epstein, “Genetic Surveillance” — The
Bogeyman Response to Familial DNA Investigations, 2009 U.
Ill. J.L. TECH & POL’Y 141, 152 (2009) (“The taking of bodily
material for DNA testing is perhaps the least intrusive of all
seizures — it involves no penetration of the skin, pain, or sub-
stantial inconvenience.”). Moreover, California law enforce-
ment officers typically allow arrestees to perform the buccal
swab collection on themselves, further minimizing the physi-
cal privacy intrusion.
  4
   As in Schmerber, the parties in this case are not among “the few who
on grounds of fear, concern for health, or religious scruple might prefer
some other means of testing. . . . We need not decide whether such wishes
would have to be respected.” 384 U.S. at 771.
1970                  HASKELL v. HARRIS
   [6] In short, the physical extraction of DNA using a buccal
swab collection technique is little more than a minor inconve-
nience to felony arrestees, who have diminished expectations
of privacy. Moreover, it is substantially less intrusive, both
physically and emotionally, than many of the other types of
approved intrusions that are routinely visited upon arrestees,
see supra at 1967-68.

  2.   The Government’s use and retention of DNA
       information

  Plaintiffs challenge not only the physical intrusion of the
buccal swab, but the collection and use of the information
contained in the DNA sample.

   [7] Although Plaintiffs use the phrase “DNA profile” to
evoke images of an oppressive “Big Brother” cataloguing our
most intimate traits, the reality is far less troubling. A DNA
profile contains only thirteen “junk DNA” markers that are
not linked to any genetic or physical trait. They are used only
to identify the individual. See Cal. Penal Code § 295.1(a)
(“The Department of Justice shall perform DNA analysis . . .
pursuant to this chapter only for identification purposes.”);
Kincade, 379 F.3d at 837 (“[T]he DNA profile derived from
the defendant’s blood sample establishes only a record of the
defendant’s identity — otherwise personal information in
which the qualified offender can claim no right of privacy
once lawfully convicted of a qualifying offense (indeed, once
lawfully arrested and booked into state custody).”); Amerson,
483 F.3d at 85 (“[A]t least in the current state of scientific
knowledge, the DNA profile derived from the offender’s
blood sample establishes only a record of the offender’s iden-
tity.”).

  [8] Given the minimal amount of information contained in
a DNA profile, we are persuaded that DNA, as collected and
used under the 2004 Amendment, is substantially indistin-
guishable from traditional fingerprinting as a means of identi-
                       HASKELL v. HARRIS                    1971
fying arrestees and, incidentally, tying arrestees to criminal
investigations. See Rise, 59 F.3d at 1559 (“The information
derived from the blood sample is substantially the same as
that derived from fingerprinting - an identifying marker
unique to the individual from whom the information is
derived.”); Mitchell, 652 F.3d at 412 (“[B]ecause DNA pro-
files developed pursuant to the DNA Act function as ‘genetic
fingerprints’ used only for identification purposes, arrestees
and pretrial detainees have reduced privacy interests in the
information derived from a DNA sample.”).

   Although there are some distinctions between DNA and
fingerprints, these distinctions do not implicate serious pri-
vacy concerns. These differences include, among others:
DNA identification is more robust and reliable than finger-
print identification, see Dist. Attorney’s Office for Third Judi-
cial Dist. v. Osborne, 129 S. Ct. 2308, 2316 (2009) (“Modern
DNA testing can provide powerful new evidence unlike any-
thing known before.”); DNA is more often left at crime
scenes than fingerprints, thus enhancing DNA’s investigative
efficacy; and, as emphasized by Plaintiffs, DNA contains a
much broader range of identifying information than finger-
prints and is more susceptible to misuse. Nevertheless, the rel-
ative reliability and greater availability of DNA do not affect
any cognizable privacy interests (as individuals do not have
a “privacy interest” per se in the efficiency of law enforce-
ment operations), and the wider potential usage of DNA data
(and accompanying potential for abuse) is carefully restricted
by the strict limitations established in the DNA Act.

   [9] Fingerprinting has been consistently upheld as constitu-
tional. Hayes v. Florida, 470 U.S. 811, 813-18 (1985);
Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965)
(“Taking of fingerprints . . . is universally standard procedure,
and no violation of constitutional rights.”); United States v.
Iacullo, 226 F.2d 788, 793 (7th Cir. 1955) (“[Defendant’s]
constitutional rights were not violated when his fingerprints
were taken and at the trial used as a basis for comparison with
1972                       HASKELL v. HARRIS
fingerprints found on newspapers used to wrap narcotics.”);
United States v. Kelly, 55 F.2d 67, 68-69 (2d Cir. 1932).
Indeed, at oral argument, Plaintiffs’ counsel conceded that
fingerprinting does not violate the Fourth Amendment. Given
the certain constitutionality of fingerprinting and the clear
analogy between fingerprinting and DNA identification under
the DNA Act, as amended, privacy concerns here are dimin-
ished substantially. We agree with the dissent’s concession
that “fingerprints and DNA are similar.” We also generally
have no quarrel with the dissent’s statement that the Supreme
Court has “held that fingerprints may not be taken unless
there is consent, a warrant, or probable cause.”5

   The dissent’s key argument collapses, however, because he
completely ignores the fact that the California DNA Act
clearly requires that law enforcement officers may only com-
pel DNA collection upon a finding of probable cause that the
individual has committed a felony. Moreover, each of the four
cases on which the dissent relies for some of his remarkable
theories— Hayes; Davis v. Mississippi, 394 U.S. 721 (1969);
United States v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir.
2005); and United States v. Garcia-Beltran, 389 F.3d 864 (9th
Cir. 2004), involved the compelled taking of fingerprints of
people who had been arrested without probable cause.6 This
  5
     However, we disagree with our colleague’s dismissal as “dictum” of
the Supreme Court’s clear statement that “[t]here is thus support in our
cases for the view that the Fourth Amendment would permit seizures for
the purpose of fingerprinting, if there is reasonable suspicion that the sus-
pect has committed a criminal act, [and] if there is a reasonable basis for
believing that fingerprinting will establish or negate the suspect’s connec-
tion with that crime.” Hayes, 470 U.S. at 816-17 (1985).
   6
     See Hayes, 470 U.S. at 813-14 (“[T]here was no probable cause to
arrest, no consent to the journey to the police station, and no judicial
authorization for such a detention for fingerprinting purposes.”); Davis,
394 U.S. at 725 (“[T]he State conceded that the arrest on December 12
and the ensuing detention through December 14 were based on neither a
warrant nor probable cause”); Ortiz-Hernandez, 427 F.3d at 575 (“[W]e
cannot say that the district court clearly erred when it ruled that consider-
                         HASKELL v. HARRIS                        1973
distinction completely undermines our dissenting colleague’s
novel interpretation of the Fourth Amendment, and his reli-
ance on the four cited cases. We agree that the California
DNA Act would be unconstitutional if it allowed police offi-
cers to collect DNA samples from random citizens on the
street without any probable cause to believe that they commit-
ted a crime. In reality, however, the police cannot collect
DNA without first determining that there is probable cause
that the individual committed a felony.

   The other fatal flaw in the dissent’s novel construction of
the Fourth Amendment is his entirely unsupported assumption
that the information derived from compelled fingerprinting
and DNA collection may only be used in connection with the
crime for which probable cause was found. The dissent cites
absolutely no authority for this unprecedented and misguided
reading of the Fourth Amendment. Were he correct, our entire
criminal justice system would be upended because law
enforcement officers would be prevented from using basic
investigative tools. For example, under our dissenting col-
league’s theory, the police could never be allowed to match
crime scene fingerprints to databases of prints collected from
past arrestees.

   Like the dissent, Plaintiffs rely on slippery-slope arguments
by challenging not only what California actually does with the
DNA samples, but what it could do with the information.
Their opposition rests on hypothetical scenarios in which the
Government uses the DNA sample to do more than merely
identify individuals. Plaintiffs suggest that the Government
could test the DNA for diseases such as cystic fibrosis and

ing the totality of evidence upon which Detective Anderson relied when
he placed Ortiz-Hernandez under formal arrest, the evidence was insuffi-
cient to establish probable cause.”); Garcia-Beltran, 389 F.3d at 865
(“[T]he government conceded that the police did not have probable cause
to arrest Garcia-Beltran”).
1974                  HASKELL v. HARRIS
Alzheimer’s disease. This line of reasoning—framed in bleak
Orwellian terms by the California Court of Appeal in Buza,
197 Cal. App. 4th at 1443-44—ignores the clear statutory lim-
itations drawn by the Legislature, and the fact that there is no
evidence in the record of a single case of DNA misuse in Cali-
fornia. If we were addressing a legislative scheme in which
the Government could freely use a person’s DNA sample in
any manner and for any purpose, serious privacy interests
could be at stake. But we are not presented with an open-
ended legislative scheme in which citizens’ entire genomes
are placed on file with the Government. The DNA Act, as
amended by the 2004 Amendment, sharply limits the range of
permissible uses of the DNA information obtained and
imposes significant criminal penalties upon those who violate
such limitations. See Cal. Penal Code §§ 295.1, 299.5(f),
299.5(i). See, e.g., Weikert, 504 F.3d at 13 (“[T]he [federal]
DNA Act offers a substantial deterrent to such hypothetical
abuse by imposing a criminal penalty for misuse of DNA
samples.”).

   Plaintiffs argue that California’s limits on access and use
are ineffective because California data is shared with law
enforcement agencies nationwide via CODIS. This argument
also fails because federal law imposes similar penalties for
unauthorized use of CODIS. See 42 U.S.C. § 14133(c),
14135e(c). Moreover, even if an unauthorized person were to
access California’s DNA database, the only information avail-
able would be junk DNA that identifies felony arrestees. And
if the junk DNA could reveal other traits, misuse of that infor-
mation would likewise be barred by federal law. For example,
the Genetic Information Nondiscrimination Act of 2008, Pub.
L. 110-233, 122 Stat. 881, prohibits health insurers and
employers from discriminating against people based on their
genetic information.

  While it is hypothetically possible that, at some future time,
rogue Government employees may record and analyze more
extensive DNA information, see Kincade, 379 F.3d at 847
                      HASKELL v. HARRIS                   1975
(Reinhardt, J., dissenting), or that the California Legislature
might expand the permissible scope and uses of the DNA
data, see id. at 845-46, we cannot legitimately weigh the con-
stitutionality of the current legal regime by arguing about
hypothetical and highly speculative actions that would unde-
niably violate the DNA Act, as amended by the 2004 Amend-
ment, as now in effect. “[O]ur job is limited to resolving the
constitutionality of the program before us, as it is designed
and as it has been implemented,” and we must “base decisions
not on dramatic Hollywood fantasies . . . but on concretely
particularized facts developed in the cauldron of the adversary
process and reduced to an accessible record.” Kincade, 379
F.3d at 838; see also Mitchell, 652 F.3d at 408 (“While we
acknowledge the seriousness of [defendant’s] concerns about
the possible misuse and future use of DNA samples, we con-
clude that these hypothetical possibilities are unsupported by
the record before us and thus do not have any substantial
weight in our totality of the circumstances analysis.”); Wei-
kert, 504 F.3d at 14 (noting absence of evidence in the record
showing misuse of DNA information stored in CODIS);
Amerson, 483 F.3d at 87 (same). If and when such changes
occur, future courts will be available to consider actual facts
and applications, and determine whether the law, as then con-
stituted, violates the Constitution.

   [10] Setting aside Plaintiffs’ parade of horribles, Califor-
nia’s limited use of the DNA and the complete absence of any
evidence of abuse lead us to conclude that the collection of
information from “junk DNA” markers does not significantly
intrude upon felony arrestees’ privacy.

B.   The Government’s interests in prison administration
     and law enforcement

   [11] The Government has four key interests we weigh on
the other side of the balance: identifying arrestees, solving
past crimes, preventing future crimes, and exonerating the
innocent.
1976                  HASKELL v. HARRIS
  1.   Identification of arrestees

   The amended DNA Act’s primary purpose is to identify
arrestees. See Cal. Penal Code § 295.1(a) (“The Department
of Justice shall perform DNA analysis . . . pursuant to this
chapter only for identification purposes”). This interest is
longstanding and unobjectionable. “[W]hen a suspect is
arrested upon probable cause, his identification becomes a
matter of legitimate state interest.” Jones v. Murray, 962 F.2d
302, 306 (4th Cir. 1992); see also Kriesel, 508 F.3d at 947
(“[T]racking . . . identity is the primary consequence of DNA
collection”).

   “Identification” encompasses not merely a person’s name,
but also other crimes to which the individual is linked.
“Knowledge of identity may inform an officer that a suspect
is wanted for another offense, or has a record of violence or
mental disorder.” Hiibel v. Sixth Judicial Dist. Court of
Nevada, Humboldt Cnty., 542 U.S. 177, 186 (2004).
“Whether an arrestee is possibly implicated in other crimes is
critical to the determination of whether or not to order deten-
tion pending trial.” Mitchell, 652 F.3d at 414; see also
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1123
(2002) (broadly defining “identity” as “the condition of being
the same with something described, claimed, or asserted or of
possessing a character claimed”). The collection and use of
DNA for identification purposes is substantially identical to a
law enforcement officer obtaining an arrestee’s fingerprints to
determine whether he is implicated in another crime. See
Johnson v. Quander, 440 F.3d 489, 498 (D.C. Cir. 2006)
(“[T]he process of matching one piece of personal informa-
tion against government records does not implicate the Fourth
Amendment.”).

  Plaintiffs contend that DNA profiling is unnecessary
because law enforcement officers already identify arrestees
using traditional fingerprinting. However, this argument
ignores the significant advantages of DNA profiling over fin-
                      HASKELL v. HARRIS                    1977
gerprinting. Criminals can easily hide their fingerprints by
wearing gloves, but they cannot mask their DNA. See Mitch-
ell, 652 F.3d at 414. DNA testing provides “the capacity to
identify or to exclude individuals, quickly, accurately, and at
reasonable expense.” Amerson, 483 F.3d at 89. “[F]or pur-
poses of identifying a particular person as the defendant, a
DNA profile is arguably the most discrete, exclusive means
of personal identification possible.” People v. Robinson, 47
Cal. 4th 1104, 1134 (2010) (internal quotation marks omit-
ted). Nothing in the Constitution compels us to adopt a Ludd-
ite approach that would prevent the Government from using
this new and highly effective tool to replace (or supplement)
older ones.

   Plaintiffs also assert that the Government takes “months” to
analyze DNA samples, the effect of which is to show that
DNA analysis does not advance the Government’s interest in
identifying arrestees. This argument exaggerates the facts: on
average, Government analysis of DNA takes 31 days, but
some samples have been processed in as few as five days.
Although only of persuasive value, Plaintiffs also ignore the
high likelihood that DNA technology will improve and sub-
stantially reduce processing times. Moreover, even at current
processing rates, DNA analysis can be highly effective. For
example, California’s Criminal Justice Realignment legisla-
tion, Assembly Bill 109, Stats. 2011, Ch. 15, which went into
effect on October 1, 2011, requires the transfer of many State
prisoners to county jails. To reduce overcrowding in county
jails, the statute allows prisoners to be released on their own
recognizance sixty days after their arrest, subject to a discre-
tionary review by the county. Collecting DNA at the time of
arrest will help the county determine whether a prisoner is
linked to other crimes before deciding whether to release the
prisoner. Because release cannot occur before sixty days after
arrest, the 31-day average processing time will give counties
adequate time to compare arrestees’ DNA with current and
past crime data before they are released.
1978                   HASKELL v. HARRIS
  2.   Solving past crimes

   DNA’s remarkable ability to accurately identify arrestees is
a sufficiently compelling interest to justify the 2004 Amend-
ment. However, the DNA database also serves other impor-
tant law enforcement purposes. By accurately identifying
arrestees, the DNA database also helps solve past crimes.
Solving crimes is a legitimate factor in our totality of the cir-
cumstances analysis because it “helps bring closure to count-
less victims of crime who long have languished in the
knowledge that perpetrators remain at large.” Kincade, 379
F.3d at 839; see also Mitchell, 652 F.3d at 414-415
(“Collecting DNA samples from arrestees can speed both the
investigation of the crime of arrest and the solution of any
past crime for which there is a match in CODIS.”).

   Law enforcement officials already have used California’s
expanded database to solve numerous past crimes. As of
October 31, 2009 — ten months after Proposition 69 took
effect — felony arrestee DNA samples had aided California
police in 291 database hits. Matches from offender DNA pro-
files to crime scene profiles increased by approximately 50
percent between 2008 and 2009, when Proposition 69 took
effect.

   For example, in March 2009, police collected Donald Car-
ter’s DNA when he was arrested in Sacramento for possession
of a controlled substance. Three months later, the police,
using the DNA database, linked his profile to DNA collected
from a 1989 murder of an 80-year-old woman. Similarly,
Rene Hernandez, who had no prior felony convictions, was
arrested on August 16, 2009 for felony assault in Santa Cruz
County, and his DNA was collected at that time. In October
2009, the DNA database matched his profile to DNA that was
collected from the victim of a February 2009 sexual assault
and robbery.
                      HASKELL v. HARRIS                  1979
  As California continues to add felony arrestees’ DNA to its
database, law enforcement officers will undoubtedly solve
even more past crimes.

  3.   Preventing future crimes

  DNA analysis not only solves past crimes, but it helps
police prevent crimes from occurring in the future. By imple-
menting the 2004 Amendment, law enforcement officials will
have a catalogue of arrestees’ DNA, a tool that will undoubt-
edly help solve and prevent future crimes.

   The mere existence of the DNA database creates a strong
deterrent effect. As discussed supra, it is much easier for a
criminal to cover his fingerprints than it is to prevent any
DNA from being left at a crime scene. A felony arrestee is
less likely to commit another crime in the future if he knows
that his DNA is catalogued in the State database. See, e.g.,
Kincade, 379 F.3d at 839 (stating that mandatory DNA pro-
files of convicted felons “fosters society’s enormous interest
in reducing recidivism”); Jones, 962 F.2d at 311 (“[T]he
Commonwealth’s interest in combatting and deterring felony
recidivism justifies the involuntary taking of the sample and
the creation of the DNA data bank as reasonable in the con-
text of the Fourth Amendment.”).

  4.   Exonerating innocent suspects

   By helping identify the actual perpetrators of crimes, the
DNA database also allows law enforcement officers to elimi-
nate innocent persons from suspect lists. See Kincade, 379
F.3d at 839 n.38 (DNA fingerprinting “promptly clears thou-
sands of potential suspects”); United States v. Sczubelek, 402
F.3d 175, 185 (3d Cir. 2005) (“[T]he DNA samples will help
to exculpate individuals who are serving sentences of impris-
onment for crimes they did not commit and will help to elimi-
nate individuals from suspect lists when crimes occur.”).
1980                  HASKELL v. HARRIS
   DNA databases have proven remarkably effective in exon-
erating the innocent. According to the Innocence Project,
there have been 273 post-conviction DNA exonerations in the
United States since 1989. In 123 of the cases, the true sus-
pects or perpetrators were also identified.

   The case of David Allen Jones is a powerful illustration of
the benefits of arrestee DNA sampling. Jones, a mentally dis-
abled janitor, was wrongly convicted in 1995 for three mur-
ders in the Los Angeles area. See Andrew Blankstein, et al.,
DNA Analysis Links Inmate to 12 Slayings, L.A. Times, Oct.
23, 2004, at A1. Jones spent nearly nine years in prison. He
was released in 2004, after DNA collected at two of the mur-
der scenes was linked to the DNA profile of Chester Dwayne
Turner. Although Turner had been arrested 20 times between
1987 and 2002, his DNA sample was not collected until after
he was convicted of rape in 2002. Id. Had the 2004 Amend-
ment been in effect in 1995, it is likely that Jones never would
have been imprisoned because police would have had access
to Turner’s DNA profile.

  There are few greater injustices than the wrongful impris-
onment of an innocent person. The privacy intrusion caused
by a buccal swab of a felony arrestee is minor compared to
society’s compelling goal of ensuring that innocent people are
exonerated.

C.     Balancing

   [12] Given the arrestee’s diminished privacy interests; the
de minimis nature of the physical intrusion entailed in the tak-
ing of a buccal swab; the carefully circumscribed scope of the
DNA information being extracted; the stringent limits on the
manner in which that information may be used; and the well-
established law enforcement interest in obtaining arrestees’
identifying information, and further, to deter future criminal
acts and to exculpate innocent arrestees—the balance of inter-
                       HASKELL v. HARRIS                     1981
ests tilts strongly in favor of upholding the constitutionality of
the 2004 Amendment.

   We emphasize that our decision deals solely with DNA
extraction, processing, and analysis as it presently exists, and
is enforced. We acknowledge that future developments in the
law could alter the constitutionality of the DNA Act, as
amended. See Kincade, 379 F.3d at 842 n.3 (Gould, J., con-
curring in the judgment). But we cannot test the amended
DNA Act’s current legality in light of uncertain future
amendments to the law, which themselves would likely vio-
late the DNA Act, as amended by the 2004 Amendment.

                        CONCLUSION

   [13] Because the 2004 Amendment does not violate the
Fourth Amendment as applied to the Plaintiffs, the facial chal-
lenge also fails because Plaintiffs cannot “establish that no set
of circumstances exists under which the Act would be valid.”
Salerno, 481 U.S. at 745. Accordingly, we hold that the dis-
trict court did not err in determining that Plaintiffs did not
establish a likelihood of success on the merits, and we affirm
its denial of the preliminary injunction.

  AFFIRMED.



W. FLETCHER, Circuit Judge, dissenting:

  I respectfully dissent.

  In Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), we
held that the taking of a DNA sample without a warrant, and
without suspicion of a crime that the DNA sample would help
solve, violated the plaintiff’s clearly established Fourth
Amendment rights. Proposition 69 requires that DNA samples
be taken from all felony arrestees, with or without their con-
1982                  HASKELL v. HARRIS
sent, upon their arrest. There is no need for a warrant, and
there is no need for suspicion of a crime that the DNA sample
would help solve. Our decision in Friedman requires us to
hold that Proposition 69 violates the Fourth Amendment.

   Even if Friedman were not on the books, I would conclude
that Proposition 69 is unconstitutional. My reasoning is
straightforward. Fingerprints may be taken from an arrestee in
order to identify him—that is, to determine whether he is who
he claims to be. But fingerprints may not be taken from an
arrestee solely for an investigative purpose, absent a warrant
or reasonable suspicion that the fingerprints would help solve
the crime for which he was taken into custody. Hayes v. Flor-
ida, 470 U.S. 811, 814 -15 (1985); Davis v. Mississippi, 394
U.S. 721, 727 -28 (1969); United States v. Ortiz-Hernandez,
427 F.3d 567, 576 (9th Cir. 2005); United States v. Gar-
cia-Beltran, 389 F.3d 864, 865 (9th Cir. 2004). DNA samples
are not taken from felony arrestees under Proposition 69 in
order to identify them. Rather, they are taken solely for an
investigative purpose, without a warrant or reasonable suspi-
cion. The taking of DNA samples from arrestees solely for
that purpose is invalid under Hayes, Davis, Ortiz-Hernandez,
and Garcia-Beltran.

                      I.   Background

   The four named plaintiffs were arrested for felonies in
2009. They were compelled under Proposition 69 to provide
DNA samples immediately after their arrests. Two of the
plaintiffs were never charged with crimes. The other two
plaintiffs were charged with felonies, but the charges were
dismissed. No warrants authorized taking any of the DNA
samples. Nor was there a suspicion of any crime that the DNA
samples would help solve.

   Elizabeth Haskell was arrested on March 21, 2009, for
allegedly trying to take a person from police custody during
a San Francisco peace demonstration. She was taken to the
                       HASKELL v. HARRIS                    1983
San Francisco County jail, where she was ordered to provide
a DNA sample. She was told that she would be charged with
a misdemeanor if she refused to comply immediately. She
provided a sample but states she would have refused if she
had not been threatened. Haskell was never charged with a
crime. She states, “I now live with the fear that my DNA
might be falsely matched to a sample obtained from a crime
scene, even if I remain completely law abiding. As a political
activist, I also recognize the taking of DNA from those
arrested during political activities as an intimidation tactic,
increasing the cost of voicing any freedom of expression.”

   Reginald Ento was arrested in early 2009 on suspicion of
possessing stolen property. He was taken to the Sacramento
County jail, where a sheriff’s deputy collected a DNA sample
without his consent. Ento states that the deputy told him that
the DNA could be taken by force if necessary. He states, “Not
long after my DNA sample was collected, the charges against
me were dropped and I was released from custody. At no time
during my contact with law enforcement officials was I ever
informed that I could seek to have my DNA sample destroyed
and information regarding my DNA removed from any law
enforcement databases, based on the fact that the charges
against me [were] dropped.”

   Jeffrey Lyons Jr. was arrested on March 16, 2009, for
allegedly trying to take a person from police custody during
a demonstration outside the Israeli consulate. He was taken to
the San Francisco County jail, where he was ordered to pro-
vide a DNA sample. He complied with the order. Lyons was
charged with a felony, but the charge was dismissed. He states
that after the charge was dismissed, “I called the San Fran-
cisco District Attorney’s office . . . to ask for help in getting
my DNA sample expunged. . . . The woman at the District
Attorney’s office said that I would have to file a motion and
that I should talk to my lawyer. I then said that because my
lawyer had been paid by the court I didn’t know whether I
would have to pay him to do this; she said she didn’t know
1984                   HASKELL v. HARRIS
and suggested that I call the public defender’s office and that
maybe they would help me.”

   Aakash Desai is a graduate student at the University of Cal-
ifornia, Berkeley. He participated in a demonstration in
Wheeler Hall on the Berkeley campus on November 20, 2009,
protesting tuition increases as well as custodial furloughs and
layoffs. Campus police arrested Desai and took him to the
Berkeley city jail. Desai was told at the jail that he was being
charged with felony burglary. He was told that if he refused
to provide a DNA sample he would be charged with a misde-
meanor and his bail would be increased. Desai then provided
a DNA sample. He states, “When I went to court on the fol-
lowing Monday for my arraignment, I learned that no charges
had been filed.”

   In 1998, the California legislature passed the DNA Act,
which created a program of warrantless DNA testing of indi-
viduals convicted of certain violent crimes. See 1998 Cal.
Stat. ch. 696, § 2. In November 2004, California voters passed
Proposition 69. Proposition 69 requires that DNA be taken
from all individuals convicted of felonies. Cal. Penal Code
§ 296(a)(1). It also provides, effective January 1, 2009, for
expansion of the DNA program to felony arrestees. Cal. Penal
Code § 296(a)(2)(A)-(C).

   Plaintiffs challenge the expansion to arrestees. Approxi-
mately 300,000 individuals are arrested for felonies in Cali-
fornia each year. About a third of them are never convicted
of the felonies for which they are arrested. Many, including
two of the plaintiffs, are never even charged with felonies.

   The arrestee is photographed and fingerprinted during the
booking process. See Cal. Penal Code § 7(21). The arrestee’s
fingerprints are used to ascertain or verify his or her identity.
Police officials then use the arrestee’s identity, thus ascer-
tained or verified, to determine if he or she has already pro-
vided a DNA sample. If the arrestee has not already provided
                       HASKELL v. HARRIS                    1985
a DNA sample, officials compel the arrestee to provide one.
Arrestees are told that they will not be released from jail until
they provide a DNA sample and that they can be charged with
a misdemeanor for refusing to provide one. Arrestees may be
told that force can be used to obtain a DNA sample. See Cal.
Penal Code § 298.1(a)-(b).

   A judicial determination of probable cause for the arrest is
not required, either before arrest or before a DNA sample is
taken. As a practical matter, Proposition 69 precludes a judi-
cial determination of probable cause after the arrest, for it
requires that the sample be taken “immediately following an
arrest, or during the booking . . . process or as soon as admin-
istratively practicable after arrest.” Cal. Penal Code
§ 296.1(a)(1)(A). Proposition 69 nowhere mentions the desir-
ability, or even the possibility, of a judicial determination of
probable cause prior to taking the DNA sample.

    After the arrestee has been identified and the DNA sample
has been collected, the sample is sent to a laboratory where
it is analyzed to create a DNA profile. The analysis occurs on
average approximately one month after collection of the sam-
ple. California retains the sample after the analysis. See Cal.
Penal Code § 295.1(c).

   Once the arrestee’s DNA sample is analyzed, the arrestee’s
DNA profile is entered into the Combined DNA Index Sys-
tem (“CODIS”). CODIS is a system of federal, state, and
local DNA databases operated by the National DNA Index
System (“NDIS”). CODIS stores DNA records in a number of
different indexes, including an Arrestee Index and a Convict
Index. California arrestees’ DNA profiles are entered into the
Arrestee Index.

  All fifty states and the federal government participate in
CODIS. Forty-seven states and the federal government collect
DNA from all convicted felony offenders. Twenty-two states
and the federal government collect DNA from some or all
1986                  HASKELL v. HARRIS
arrestees. Law enforcement agencies around the country can
access the DNA profiles contained in CODIS.

   CODIS uses 13 genetic markers—in technical terms, short
tandem repeat polymorphisms (“STRPs”)—to create DNA
profiles. The 13 genetic markers used by CODIS “ ‘were pur-
posely selected because they are not associated with any
known physical or medical characteristics.’ ” United States v.
Kincade, 379 F.3d 813, 818-19 (9th Cir. 2004) (en banc) (plu-
rality) (quoting H.R. Rep. No. 106-900, pt. 1 at 36 (2000)).
These markers are sometimes called “junk DNA.” Dr. Robert
Nussbaum, Chief of Medical Genetics at the University of
California, San Francisco, Department of Medicine, states,
“There is currently no evidence that specific variants at any
of the 13 core CODIS STRPs are themselves associated with
traits of functional or medical significance.” Dr. Nussbaum
states that in some cases the information associated with these
STRPs “might allow one to infer functional or other medical
information.” It is possible that “junk DNA” may be discov-
ered, at some future time, to be directly associated with traits
of functional or medical significance. See Kincade, 379 F.3d
at 818 n.6; see also, e.g., Gina Kolata, Reanimated ‘Junk’
DNA Is Found to Cause Disease, N.Y. Times, Aug. 20, 2010
at A1.

   Once entered into CODIS, a DNA profile may be compared
to the hundreds of thousands of crime-scene DNA profiles
already entered into CODIS. A DNA profile provides an
extremely accurate means of distinguishing one individual
from another and a powerful tool to link particular individuals
to DNA traces left at crime scenes. See Kincade, 379 F.3d at
818-19 (9th Cir. 2004). A comparison between DNA profiles
and crime-scene DNA samples is performed each week by
CODIS. If there is a match between a crime-scene sample and
a DNA profile (a “hit”), NDIS notifies the submitting labora-
tory, which then forwards the match information to the rele-
vant law enforcement agency. Fingerprints linked to the DNA
                       HASKELL v. HARRIS                     1987
profile are used to identify the individual whose DNA profile
matched a crime-scene DNA sample.

   California conducts “familial searching” using DNA pro-
files in CODIS. A familial search identifies DNA profiles that
are not a precise match to the crime-scene DNA sample, but
are a close enough match to suggest that the individual whose
DNA profile is in CODIS may be related to an individual who
left DNA at the crime scene. Defendants state that, as a matter
of policy, California does not now conduct familial searching
using DNA profiles in the Arrestee Index (as distinct from the
Convict Index). Plaintiffs contend, however, that the State
will likely conduct familial searching of the Arrestee Index in
the future. This is so, they contend, because a supervisor of
the California DNA program has stated that all California
DNA profiles are now entered into the Arrestee Index rather
than the Convict Index, and that California cannot easily
transfer those profiles from the Arrestee Index to the Convict
Index after a conviction has been obtained.

   The DNA samples and profiles taken from arrestees are
retained unless an arrestee successfully applies for expunge-
ment. Expungement is a lengthy, uncertain, and expensive
process. If no charges are filed, an individual must wait until
the relevant felony’s statute of limitations has run before
applying for expungement. See Cal. Penal Code § 299(b)(1).
Depending on the felony for which the individual was
arrested, the statute of limitations is three years or longer. See
Cal. Penal Code §§ 799-801. If charges are filed, an arrestee
often need not wait until the expiration of the statute of limita-
tions. Expungement may be sought after the charges are dis-
missed by a trier of fact before adjudication; after a conviction
has been reversed and the case dismissed; after the arrestee
has been found factually innocent; or after the arrestee has
been acquitted of the charged offense. Cal. Penal Code
§ 299(b)(1)-(4). Arrestees seeking expungement must pay
their own expenses and attorney’s fees. Unlawfulness of an
arrest is not a ground for expungement.
1988                   HASKELL v. HARRIS
   After requesting expungement, an arrestee must wait a
minimum of 180 days before a court can act. See Cal. Penal
Code § 299(c)(2)(D). The court has discretion to grant or
deny the request for expungement. The denial of a request for
expungement is a nonappealable order and cannot be
reviewed by petition for writ. Cal. Penal Code § 299(c)(1).
The prosecuting attorney can prevent expungement by mak-
ing an objection. See Cal. Penal Code § 299(c)(2)(D). The
State reports that California has expunged more than 900 con-
victed felon profiles and denied eight requests for expunge-
ment. It does not report expungement of any arrestee profiles.

   California law provides some protection for individuals
who have submitted DNA. DNA samples may be tested only
to create the DNA profile. The DNA Act prohibits use of indi-
vidual samples or profiles for purposes other than law-
enforcement-related matching. See Cal. Penal Code
§ 299.5(f)(I). However, California law does permit statistical
studies using anonymous DNA profiles. Individuals who
misuse DNA profiles in violation of California law are subject
to imprisonment for up to a year and a fine of up to $50,000.
See Cal. Penal Code § 299.5(I). The district court found that
there have been no reported instances of misuse.

                 II.   Friedman v. Boucher

   In Friedman, we addressed the taking of DNA testing from
an arrestee without a warrant and without suspicion of a crime
that the DNA might help to solve. Friedman was a pre-trial
detainee in the Clark County, Nevada, jail, pending prosecu-
tion on criminal charges. Friedman v. Boucher, 580 F.3d 847,
851 (9th Cir. 2009). Our opinion does not state whether the
charges were felony or misdemeanor. A Las Vegas police
officer forcefully took a DNA sample from Friedman at the
direction of a county Deputy District Attorney who wanted
the DNA for inclusion in the Nevada cold case data bank. Id.
at 851. Friedman brought a § 1983 damages action against the
police officer who took the sample and the district attorney
                       HASKELL v. HARRIS                     1989
who asked for it. We held that the defendants had violated
Friedman’s clearly established Fourth Amendment right to be
free from an unreasonable search. Id. at 858.

   We had previously upheld the compelled taking of DNA
samples from convicted felons. See United States v. Kriesel,
508 F.3d 941, 942 (9th Cir. 2007); United States v. Kincade,
379 F.3d 813, 832 (9th Cir. 2004) (en banc); Rise v. Oregon,
59 F.3d 1556, 1562 (9th Cir. 1995). However, we refused to
extend these cases to a warrantless, suspicionless, compelled
taking of DNA from a pre-trial detainee. Friedman, 580 F.3d
at 856-58. We wrote that government interests justifying the
unconsented taking of DNA from convicted felons in our ear-
lier cases were not present: “The Nevada authorities extracted
DNA from Friedman not because they suspected he had com-
mitted a crime, nor to aid in his reintegration into society, nor
as a matter of his continuing supervision. Their purpose was
simply to gather human tissue for a law enforcement data-
bank, an objective that does not cleanse an otherwise uncon-
stitutional search.” Id. at 858.

   The majority gives five reasons why it believes our deci-
sion in Friedman does not control this case. None of the rea-
sons is sufficient to distinguish Friedman.

   First, the majority states, “[T]he DNA collection . . . was
conducted at the whim of deputy district attorney, acting with-
out any statutory authority. . . . In contrast, the DNA collected
in California from the Plaintiffs was approved in a statewide
ballot referendum, which is a ‘basic instrument of democratic
government[.]’ ” Maj. Op. at 1965. We made clear in Fried-
man that absence of an authorizing statute was not determina-
tive of the appellant’s Fourth Amendment claim. We wrote
that “adherence to a state statute does not guarantee compli-
ance with the Fourth Amendment.” Id. at 853 (citing Virginia
v. Moore, 553 U.S. 164, 171 (2008)). Further, if the action of
a state or local official is taken pursuant to an unconstitutional
1990                   HASKELL v. HARRIS
state law, it does not matter whether that law was enacted by
the legislature or approved directly by the voters.

   Second, the majority states, “[T]he police in Friedman sin-
gled out one individual for a search. In contrast, the California
DNA Act is programmatic, and applies to all felony
arrestees.” Maj. Op. at 1965. That a search is of a single per-
son, at the discretion of an individual official, or of a group
of people, mandated by a general rule, has never been a
touchstone of Fourth Amendment analysis. Our opinion in
Friedman did not rely on the fact that the search in that case
was of a single individual. In rejecting the government’s argu-
ments, we noted that “the government’s position . . . would
endorse routine, forcible DNA extraction.” 580 F.3d at 857
(emphasis added). We held such routine searches could not be
justified by “ ‘the mere chance that desired evidence might be
obtained.’ ” Id. (quoting Schmerber v. California, 384 U.S.
757, 769-70 (1966)). In holding the plaintiff’s Fourth Amend-
ment right to be clearly established, we wrote that our prece-
dent “precluded the interpretation that the government could
forcibly extract DNA from all pre-trial detainees as a matter
of routine, unrelated to facility security considerations.” Id. at
859 (emphasis added).

   Third, the majority states, “[T]he detective ‘forced Fried-
man’s jaw open and forcefully took a buccal swab from the
inside of Friedman’s mouth.’ . . . In contrast, California
arrestees typically swipe the buccal swab along their own
mouths; thus law enforcement officials do not usually use
force.” Maj. Op. at 1966. California law expressly permits the
use of force (as well as the use of criminal misdemeanor
charges) if an arrestee refuses to provide a DNA sample. See
Cal. Penal Code § 296.1(a). Indeed, Reginald Ento, one of the
plaintiffs in this case stated that he was threatened with force
when he declined to provide a sample. Our opinion in Fried-
man describes the physical compulsion used to take the DNA,
but our holding does not turn on the use of physical force. We
held the compelled search unconstitutional because it could
                      HASKELL v. HARRIS                    1991
not be justified by a permissible law enforcement objective.
Friedman, 580 F.3d at 853-858 (rejecting all three of the
State’s claims that an exception to the warrant requirement
applied).

   Fourth, the majority states, “[T]he California DNA Act
imposes criminal penalties on people who misuse DNA infor-
mation . . . ; Nevada had no such safeguards because no stat-
ute authorized the DNA collection.” Maj. Op. at 1966. In
Friedman, we expressed no concern that the officer might
“misuse” the arrestee’s DNA sample in the sense of using it
for purposes other than placement in the State’s cold case
database. Friedman, 580 F.3d at 858. Rather, we held that the
compelled taking of Friedman’s DNA and its placement in the
database for investigative purposes was, in and of itself, a
misuse. Whether a coerced DNA sample would be used, or
misused, in other ways is irrelevant under Friedman.

   Fifth, the majority states, “[T]he California DNA Act is
clearly intended to allow law enforcement officials to identify
criminal suspects, a purpose that we expressly approved in
Rise [v. Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995)]. . . . It
is unclear what purpose the DNA collection in Friedman was
intended to serve because it was not authorized by any
Nevada statute or regulation.” Maj. Op. at 1966. The majority
is wrong in stating that the purpose of Proposition 69 is to
identify the felony arrestees who are compelled to provide
DNA samples. Rather, as I discuss below, its sole purpose is
to assist in criminal investigations. The majority is also wrong
in stating that the purpose of the DNA collection in Friedman
was unclear. We wrote that “the deputy district attorney
wanted to put Friedman’s DNA sample in a cold case data
bank.” Friedman, 580 F.3d at 851. We wrote, further, that the
deputy district attorney “represented to a Nevada Justice
Court that she had ordered the search to use Friedman’s DNA
in the investigation of cold cases,” and that the police officer
“wanted the sample as an aid to solve cold cases.” Id.
1992                     HASKELL v. HARRIS
  Unlike the majority, I conclude that our decision in Fried-
man controls this case. We are bound by Friedman unless we
go en banc to overturn it.

                  III.    Fourth Amendment

   Even if Friedman were not controlling, I would conclude
that Proposition 69 violates the Fourth Amendment.

   The majority emphasizes the similarity between finger-
prints and DNA. See, e.g., Maj. Op. at 1971-72 (“Given the
certain constitutionality of fingerprinting and the clear anal-
ogy between fingerprinting and DNA identification under the
DNA Act, as amended, privacy concerns here are diminished
substantially.”). I agree that fingerprints and DNA are similar.
Precisely because of that similarity, Proposition 69 is uncon-
stitutional.

   Fingerprints and DNA are both valuable law enforcement
tools. In United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), an
early appellate decision upholding fingerprinting, the court
held fingerprinting was a permissible tool of identification, as
“an extension of methods of identification long used in deal-
ing with persons under arrest for real or supposed violations
of the criminal laws.” Id. at 69. Subsequent court decisions
have upheld the use of fingerprints for identification purposes.
See, e.g., Napolitano v. United States, 340 F.2d 313, 314 (1st
Cir. 1965) (“Taking of fingerprints [of those released on bail]
is universally standard procedure, and no violation of consti-
tutional rights.”).

   But there are limits on the purpose for which fingerprints
may be taken. The Supreme Court has twice held that finger-
prints may not be taken unless there is consent, a warrant, or
probable cause. In Davis v. Mississippi, 394 U.S. 721, 722
(1969), police in Meridian, Mississippi, arrested and took the
fingerprints of “at least 24 Negro youths,” including Davis, as
part of a rape investigation. The police were required to have
                       HASKELL v. HARRIS                    1993
probable cause in order to arrest Davis. See, e.g., Draper v.
United States, 358 US. 307, 310 (1959) (“The crucial question
. . . is whether [the arresting officer had] ‘probable cause’
within the meaning of the Fourth Amendment . . . to believe
that petitioner had committed or was committing a violation
of the narcotic laws.” (footnote and internal citations omit-
ted)).

   Davis’s fingerprints, taken by the police, matched finger-
prints found on a windowsill of the victim’s home. Based in
part on that match, Davis was convicted and sentenced to life
in prison. The Court held that the fingerprint evidence should
have been suppressed because it had been taken in violation
of the Fourth Amendment. The Court noted that the state had
conceded that Davis had been arrested without probable
cause. Davis, 94 U.S. at 723. The Court rejected two reasons
argued in support of taking Davis’s fingerprints—that the fin-
gerprints had been taken as part of an investigation into a
crime and that fingerprints are a particularly reliable kind of
evidence. The Court wrote, “[T]o argue that the Fourth
Amendment does not apply to the investigatory stage is fun-
damentally to misconceive the purposes of the Fourth Amend-
ment.” Id. at 726. It wrote, further, “[W]e find no merit in the
suggestion . . . that fingerprint evidence, because of its trust-
worthiness, is not subject to the proscriptions of the Fourth
and Fourteenth Amendments. Our decisions recognize no
exception to the rule that illegally seized evidence is inadmis-
sible at trial, however relevant and trustworthy the seized evi-
dence may be as an item of proof.” Id. at 723-24.

   In Hayes v. Florida, 470 U.S. 811, 812 (1985), police in
Punta Gorda, Florida, were investigating a series of burglary-
rapes. After interviewing over thirty men who generally fit the
description of the assailant, “investigators came to consider
[Hayes] a principal suspect.” Id. Police went to Hayes’s
house. They told him that he could either come to the police
station voluntarily to be fingerprinted or that he would be
arrested. Police then arrested Hayes and took him to the sta-
1994                   HASKELL v. HARRIS
tion, where they took his fingerprints. The police were
required to have probable cause in order to arrest Hayes.

    Hayes’s fingerprints matched those left at the scene of one
of the crimes. Id. at 813. Based in part on the match, Hayes
was convicted of burglary and sexual battery. The Court held
that Davis required suppression of the fingerprints. It wrote
that there had been, in fact, no probable cause. It wrote,
“Here, as in Davis, there was no probable cause to arrest, no
consent to the journey to the police station, and no judicial
authorization for such a detention for fingerprinting purposes.
. . . None of our later cases have undercut the holding in Davis
that transportation to and investigative detention at the station
house without probable cause or judicial authorization
together violate the Fourth Amendment.” Id. at 814-15.

   The Court in Hayes wrote in dictum that in some circum-
stances fingerprints could possibly be taken without probable
cause. It wrote:

       None of the foregoing implies that a brief deten-
    tion in the field for the purpose of fingerprinting,
    where there is only reasonable suspicion not amount-
    ing to probable cause, is necessarily impermissible
    under the Fourth Amendment. There is thus support
    in our cases for the view that the Fourth Amendment
    would permit seizures for the purpose of fingerprint-
    ing, if there is reasonable suspicion that the suspect
    has committed a criminal act, [and] if there is a rea-
    sonable basis for believing that fingerprinting will
    establish or negate the suspect’s connection with that
    crime . . . .

Id. at 816-7 (internal citations omitted).

  Relying on Davis and Hayes, we have distinguished
between fingerprint evidence taken for identification and for
investigative purposes. In United States v. Garcia-Beltran,
                      HASKELL v. HARRIS                    1995
389 F.3d 864, 865 (9th Cir. 2004), the government conceded
that arresting officers lacked probable cause for the arrest of
the defendant. It nonetheless argued for the use of his finger-
prints, on the ground that they had been taken merely as evi-
dence of his identity. We held that fingerprints could be taken
for identification purposes, but could not be taken solely for
investigative purposes. We remanded to the district court for
a determination of the purpose for which the fingerprints had
been taken. Id. at 86-68. We held the same thing a year later
in United States v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir.
2005). We wrote, “It is established law under Hayes and
Davis that if fingerprints are taken for investigatory purposes,
they must be suppressed in a criminal trial.” Id. at 576; see
also United States v. Olivares-Rangel, 458 F.3d 1104,
1115-16 (10th Cir. 2006) (“[I]n determining whether the fin-
gerprint evidence in this case should be suppressed, we must
determine the original purpose for arresting and later finger-
printing Defendant; that is, was Defendant fingerprinted
merely as part of a routine booking or processing procedure
or was the illegal arrest in part for the purpose of obtaining
unauthorized fingerprints so Defendant could be connected to
additional alleged illegal activity.”); United States v.
Guevara-Martinez, 262 F.3d 751, 755-56 (8th Cir. 2001)
(suppressing fingerprints taken for investigatory purposes
after an arrest without probable cause).

  I would apply to DNA the law that we already apply to fin-
gerprints. Under that law, if DNA is taken from arrestees
under Proposition 69 for purposes of identification, that tak-
ing is permissible. However, if it is taken solely for purposes
of investigation, that taking is a seizure in violation of the
Fourth Amendment.

   The meaning of “identification,” as used in our caselaw, is
the conventional meaning of the term. Identification is a
determination of who someone is—his or her name, along
with identifying information such as date of birth, address,
and the like. In Garcia-Beltran, we contrasted investigation,
1996                   HASKELL v. HARRIS
which was an attempt “to connect [the defendant] to alleged
criminal activity,” to identification, which was an attempt to
determine if he was “really who he says he is.” Garcia-
Beltran, 389 F.3d at 865, 867. Similarly, in Rise, we drew a
“constitutionally significant distinction between the gathering
of fingerprints from free persons to determine their guilt of an
unsolved criminal offense and the gathering of fingerprints for
identification purposes from persons within the lawful cus-
tody of the state.” United States v. Rise, 59 F.3d 1556, 1560,
overruled on other grounds by City of Indianapolis v.
Edmond, 531 U.S. 32 (2000) and Ferguson v. City of Charles-
ton, 532 U.S. 67 (2001).

   The majority in this case employs an idiosyncratic, expan-
sive definition of “identification,” including investigation
within that definition. The majority writes, “ ‘Identification’
encompasses not merely a person’s name, but also other
crimes to which the individual is linked.” Maj. Op. at 1976.
“The collection and use of DNA for identification purposes is
substantially identical to a law enforcement officer obtaining
an arrestee’s fingerprints to determine whether he is impli-
cated in another crime.” Id. at 1976. The majority writes, fur-
ther,

    Plaintiffs contend that DNA profiling is unnecessary
    because law enforcement officers already identify
    arrestees using traditional fingerprinting. However,
    this argument ignores the significant advantages of
    DNA profiling over fingerprinting. Criminals can
    easily hide their fingerprints by wearing gloves, but
    they cannot mask their DNA.

Id. (emphasis added). The majority’s statement that criminals
“can easily hide their fingerprints by wearing gloves” makes
clear, if it was not clear already, that it includes investigation
in its definition of identification. Under our caselaw’s defini-
tion of identification, it makes no sense to say that a criminal
can hide his identity by wearing gloves. A criminal wears
                      HASKELL v. HARRIS                    1997
gloves while he is committing a crime, not while police are
identifying him at the police station.

   Proposition 69 employs the same idiosyncratic, expansive
definition of “identification.” California’s DNA Act, which
includes Proposition 69, provides that the California Depart-
ment of Justice “shall perform DNA analysis and other foren-
sic identification analysis . . . only for identification
purposes.” Cal. Penal Code § 295.1(a). Yet it is clear that
DNA samples taken under Proposition 69 are used solely for
investigative purposes. The text of Proposition 69 makes clear
that its objective is solving crime. The phrases “solve crime”
or “crime solving” are used five times in the text of the propo-
sition. See, e.g., Cal. Prop. 69, § II(d)(1)-(d)(2) (2004)
(“Expanding the statewide DNA Database and Data Bank
Program is [t]he most reasonable and certain means to accom-
plish effective crime solving in California” and is “[t]he most
reasonable and certain means to solve crime as effectively as
other states . . . .”); id. at § II(c) (“Law enforcement should
be able to use the DNA Database . . . to substantially reduce
the number of unsolved crimes [and] to help stop serial crime
by quickly comparing DNA profiles of qualifying persons and
evidence samples with as many investigations and cases as
necessary to solve crime and apprehend perpetrators . . . .”).

   The ballot argument in favor of Proposition 69, contained
in the official voters’ pamphlet, focused on the crime-solving
potential of DNA. The ballot argument began, “In California,
the remains of a boy missing for two decades are finally iden-
tified. Two cold murders are solved in Kansas. And in Texas,
a serial sexual predator is captured. The cases are cracked
thanks to technology police are calling the fingerprints of the
21st century.” Ballot Pamp., Gen. Elec. (Nov. 2, 2004), argu-
ment in favor of Prop. 69 (emphasis removed) (internal
citations    and     quotations    omitted),    available    at
http://vote2004.sos.ca.gov/voterguide/propositions/prop69-
arguments.htm. The ballot argument continued, stating that
taking a DNA sample from an arrestee “is more efficient and
1998                      HASKELL v. HARRIS
helps police conduct accurate investigations. No wasting time
chasing false leads[.]” Id.; see also People v. Buza, 129 Cal.
Rptr. 3d 753, 774-75 (Cal. Ct. App. 2011) (listing additional
examples).1

   The protocol for taking DNA samples from arrestees under
Proposition 69 also makes clear that the samples are taken
from arrestees not for identification, but rather for investiga-
tion. As described above, the first step at booking is to take
the arrestee’s fingerprints, which are then used to identify
him. Once police have identified the arrestee, they check to
determine whether he has already given a DNA sample. If he
has, no additional sample is taken. If he has not, a sample is
taken. After analysis of the sample, the arrestee’s DNA pro-
file is sent to CODIS. It takes a month, on average, for the
DNA analysis to be performed. By that time, the arrestee has
long since been identified. Indeed, the arrestee must be identi-
fied before his DNA sample can be taken.

   Even under the Supreme Court’s dictum in Hayes, Proposi-
tion 69 violates the Fourth Amendment. Under the Hayes dic-
tum, DNA may not be taken from an unconsenting arrestee
unless there is “reasonable suspicion” that the arrestee has
committed a criminal act and there is a “reasonable basis” to
believe that the arrestee’s DNA will “establish or negate the
suspect’s connection with that crime.” Hayes, 470 U.S. at 817
(emphasis added). A DNA sample is not taken under Proposi-
tion 69 because there is reasonable suspicion that the arrestee
has committed a criminal act and that the DNA will help
solve “that crime.” Rather a DNA sample is taken because a
person has been arrested for a felony. The DNA is taken from
the arrestee as a matter of course, without the need for any
suspicion that he has committed any crime that the DNA will
help solve. The DNA is taken because there is a possibility
  1
    The California Supreme Court has granted California’s petition for
review in People v. Buza. 262 P.3d 854 (Cal. 2011). As a result, the appel-
late court’s opinion has been withdrawn.
                      HASKELL v. HARRIS                     1999
that the DNA may help solve some other crime—a crime
about which the police taking the DNA have no knowledge,
indeed a crime that may not even exist.

   The majority makes two objections to this analysis. First,
the majority writes:

       The dissent’s key argument collapses, however,
    because he completely ignores the fact that the Cali-
    fornia DNA Act clearly requires that law enforce-
    ment officers may only compel DNA collection
    upon a finding of probable cause that the individual
    has committed a felony. Moreover, each of the four
    cases on which the dissent relies for some of his
    remarkable theories—Hayes, Davis [ ], Ortiz-
    Hernandez [ ], and Garcia-Beltran [ ]— involved the
    compelled taking of fingerprints without probable
    cause. This distinction completely undermines our
    dissenting colleague’s novel interpretation of the
    Fourth Amendment, and his reliance on the four
    cited cases.

Maj. Op. at 1972-73 (citations and emphasis omitted).

   The majority misreads these cases. In all four cases, there
had indeed been a determination of probable cause for the
arrest. That determination had been made by the police, as a
necessary precondition for making the arrests, just as it must
be made by the police under Proposition 69. The Supreme
Court in Hayes and Davis, and our court in Ortiz-Hernandez
and Garcia-Beltran, stated that there had not, in fact, been
probable cause. But police in all four cases believed there had
been probable cause, as a necessary precondition of the
arrests.

   More important, the issue in all four cases was whether
there was probable cause for the crime for which the defen-
dants had been arrested. There is no such probable cause here.
2000                  HASKELL v. HARRIS
Under Proposition 69, the arrest is made for a felony, but the
DNA sample is not taken to investigate that felony. It is taken
to investigate another crime for which there is no probable
cause. It is uncontested that the law enforcement officials who
take the samples have no probable cause (or even reasonable
suspicion) that the arrestee has committed another crime.
Indeed, there may not even be another crime.

  Second, the majority writes:

    The other fatal flaw in the dissent’s novel construc-
    tion of the Fourth Amendment is his entirely unsup-
    ported assumption that the information derived from
    compelled fingerprinting and DNA collection may
    only be used in connection with the crime for which
    probable cause was found.

Maj. Op. at 1973. I make no such assumption. It is established
law that if fingerprints are lawfully taken—for example, for
identification purposes—they may be used for later investiga-
tive purposes. Ortiz-Hernandez, 427 F.3d at 577; Garcia-
Beltran, 389 F.3d at 868. I assume that this law applies
equally to DNA samples. That is, if a DNA sample is lawfully
taken, it may be used thereafter for investigative purposes.
The problem under Proposition 69 is that the samples are not
lawfully taken.

   I conclude, based on Hayes, Davis, Ortiz-Hernandez, and
Garcia-Beltran, that taking DNA samples from felony
arrestees under Proposition 69, without consent, without a
warrant, and without suspicion of any crime committed by the
arrestee that the DNA will help solve, violates the Fourth
Amendment.

             IV.   Totality of the Circumstances

  The unconstitutionality of Proposition 69 is clear under
Hayes, Davis, Ortiz-Hernandez, and Garcia-Beltran. The
                          HASKELL v. HARRIS                 2001
totality of the circumstances test applied by the majority is
therefore irrelevant. I nonetheless address the majority’s
application of the test to show that the majority has overstated
the strength of the State’s interests in taking DNA samples
from arrestees and has understated the strength of the plain-
tiffs’ privacy interests.

                     A.   Interests of the State

 The majority relies on four “key interests” of the State.
Maj. Op. at 1975. I take them in turn.

                1.    Identification of Arrestees

   The majority relies on California’s interest in the “identifi-
cation of arrestees,” stating that this is the “primary purpose”
of Proposition 69. Id. As I have just shown, the DNA taken
from arrestees under Proposition 69 is not used to identify
them. Rather, it is used solely to investigate.

                     2.   Solving Past Crimes

   The majority relies on the State’s interest in solving crimes,
stating that inclusion of arrestees’ DNA profiles in the CODIS
database “helps solve past crimes.” Id. at 1978. As noted
above, DNA is taken from all felony arrestees almost immedi-
ately after their arrest. About one-third of the arrestees are
never convicted of the felony for which they are arrested.
About two-thirds of them are. The DNA of two-thirds of the
felony arrestees would therefore be placed in the CODIS upon
conviction even without Proposition 69. The State’s interest
is thus served by Proposition 69 only to the extent that the
DNA of arrestees who are never convicted of a felony is use-
ful in solving crime, and to the extent that the DNA taken
from those who are convicted is useful before the date of their
conviction.

  The majority states that ten months after Proposition 69
took effect “felony arrestee DNA samples had aided Califor-
2002                   HASKELL v. HARRIS
nia police in 291 database hits.” Id. The basis for this state-
ment is a declaration of Kenneth Konziak, a Laboratory
Director and Technical Manager/Leader for the State of Cali-
fornia DNA Data Bank Program. Mr. Konziak states that as
of October 31, 2009, “CAL-DNA, used as an investigative
tool, has recorded 10,664 hits . . . . Of these 10,664 hits, so
far 291 have involved arrestee submissions.”

   However, the “arrestee submissions” to which Mr. Konziak
refers in his declaration are submissions from all felony
arrestees, including the submissions from the two-thirds of the
arrestees who will be convicted. Without more, we have no
way of knowing how many of the 291 “hits” were for
arrestees who were later convicted. The hits for later-
convicted arrestees should be excluded from the analysis,
except to the extent that the hits were made because their
DNA samples were analyzed earlier than they otherwise
would have been.

   The majority also provides examples of two crimes, com-
mitted by Donald Carter and Rene Hernandez, that have been
solved through the use of DNA in the arrestee database. Maj.
Op. at 1978. These are two of six examples given in the
amicus brief filed in this court by the California District
Attorneys Association. None of these six examples was pro-
vided to the district court. In none of them are we told that the
DNA samples were provided by never-convicted arrestees. In
five of the six examples, the brief states that the criminal
charges were still pending; in the sixth, the brief is silent.
Given the brief’s description of the circumstances of the
crimes that were charged in these six cases, it seems probable
that all of the six will be, or by now have been, convicted of
the felonies for which they were arrested.

  It is likely that the inclusion of the DNA profiles of never-
convicted California felony arrestees in the CODIS database
under Proposition 69 will help solve some crimes, but based
                         HASKELL v. HARRIS                    2003
on the evidence presented to the district court we do not know
how likely.

                   3.   Preventing Future Crimes

   The district court was presented with evidence purporting
to show the effectiveness of Proposition 69 in preventing
future crime, but the court gave it “little weight.” Haskell v.
Brown, 677 F. Supp. 2d 1187, 1201 (N.D. 2009). The court
wrote, “Though the government might be able to introduce
more reliable evidence about the efficacy of arrestee DNA in
preventing future crimes, it has not done so convincingly at
this stage of the litigation.” Id.

   Despite the district court’s statement, the majority writes,
“DNA not only solves past crimes, but it helps police prevent
crimes from occurring in the future.” Maj. Op. at 1979.

              4.    Exonerating Innocent Suspects

   The district court gave little weight to the State’s interest in
exonerating the innocent served by Proposition 69. It wrote,
“At this stage of the litigation, this interest is not very strong.
Though convicting the right person can theoretically serve to
exonerate (or obviate the risk of investigating and prosecut-
ing) the wrong person, the government has not yet introduced
any evidence that the taking of arrestees’ DNA has led to
either an increase in exonerations or a decrease in false
accusations/convictions.” 677 F. Supp. 2d at 1201 n.12.

   Despite the district court’s statement, the majority writes
that “the DNA database also allows law enforcement officers
to eliminate innocent persons from suspect lists” and, in some
cases, to free those who have been wrongly convicted. Maj.
Op. at 1979. “There are few greater injustices than the wrong-
ful imprisonment of an innocent person.” Id. at 1980.

  The majority uses the famous Chester Turner case to sup-
port its argument that DNA testing of never-convicted
2004                   HASKELL v. HARRIS
arrestees serves to exonerate the innocent. David Jones was
convicted in 1995 for three murders he did not commit. Tur-
ner was convicted of rape in 2002 and a DNA sample was
then taken. Turner’s DNA profile matched DNA collected at
two of the three murder scenes, and Jones was released from
prison in 2004. If Turner’s DNA had been available in 1995,
it likely would have prevented Jones’s wrongful conviction.
But Proposition 69 was not necessary for this purpose. Turner
had been convicted of a felony before 1995. If Turner’s DNA
had been taken when he was convicted of that felony, as it
could have been even without Proposition 69’s authorization
of DNA collection from arrestees, it would have been avail-
able to exonerate Jones during the investigation of the mur-
ders.

               B.   Plaintiff’s Privacy Interests

   Our cases upholding mandatory DNA testing have started
from the assumption of “ ‘severely diminished expectations of
privacy’ ” for those who have been convicted of crimes. See
Kriesel, 508 F.3d at 941 (quoting Samson, 547 US. at 882).
In those cases, we have found that felony parolees and those
on supervised release are “ ‘not entitled to the full panoply of
rights and protections possessed by the general public.’ ”
Kriesel, 508 F.3d at 947 (quoting Kincade, 379 F.3d at 833).

   This case, however, concerns arrestees. All four of the
plaintiffs were arrested for felonies, but no plaintiff was con-
victed of the felonies for which he or she was arrested. Two
of them were not even charged.

   An arrestee does not have the same privacy interest as a
person in the general population. See Rise, 59 F.3d at 1559-60
(holding those booking procedures requiring fingerprint iden-
tification of arrestees would be unlawful as applied to “free
persons”). But we have repeatedly recognized that an arrestee
has greater privacy interests than someone who has been con-
victed. See, e.g., United States v. Scott, 450 F.3d 863, 873 (9th
                       HASKELL v. HARRIS                     2005
Cir. 2006) (holding that a “defendant out on his own recogni-
zance before trial” possessed “privacy . . . interests far greater
than a probationer’s”).

   The majority recites “numerous degrading physical and
emotional intrusions” to which imprisoned arrestees are sub-
ject, Majority Op. at 1967, but it misunderstands the nature of
the privacy interests and does not take into account the justifi-
cations for impinging on those interests. The invasive search
procedures upheld in Bell v. Wolfish, 441 U.S. 520, 558 &
n.39 (1979) and Bull v. City & Cnty. of San Francisco, 595
F.3d 964, 971-73 (9th Cir. 2010), were justified by the need
for “security and order” in jails. Bell, 441 U.S. at 561. The
same is true of the opposite-sex monitoring of prisoners while
in the shower and bathroom upheld by the Seventh Circuit.
Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995) (noting
the need for such monitoring because “inter-prisoner violence
is endemic”).

   The other intrusions cited by the majority have only been
upheld in exigent or specialized situations. For example, the
Eleventh Circuit has upheld the restraint and pepper-spray of
an arrestee, but in that case, the arrestee “repeatedly placed
officers’ lives and innocents’ lives in danger by engaging the
police in a multi-county vehicle chase that did not end until
[he] had crashed twice.” Garrett v. Athens-Clarke Cnty., Ga.,
378 F.3d 1274, 1280 (11th Cir. 2004). In Valdez v. Rosen-
baum, we upheld a four-and-one-half month telephone-access
restriction imposed on a pre-trial detainee. 302 F.3d 1039,
1048 (9th Cir. 2002). That restriction was imposed at the
request of prosecutors “to prevent Valdez from tipping off his
co-conspirators about the recently-issued indictments and,
thereby, to ensure their capture with minimal danger to the
arresting officers.” Id. at 1046.

   Finally, the majority cites a case described in a newspaper
article for the proposition that pretrial detainees can be “in
lockdown for as much as 23½ hours a day, always shackled
2006                   HASKELL v. HARRIS
in chains, even when taking a shower or making a phone call,
and rarely being allowed to see daylight and breathe fresh
air.” Maj. Op. at 1968. The majority misunderstands what
happened in that case. The court did not find these conditions
constitutional. Instead, the court held that the criminal defen-
dant could not challenge them as a part of his criminal trial.
The court denied the defendant’s motion “without prejudice
to his right to file a separate civil action.” Order at 14, United
States v. Morgan, No. 2:07-cr-00145-KDJ-PAL (D. Nev. Oct.
23, 2008), ECF 399.

   The majority’s assessment of plaintiffs’ privacy interest
turns on the analogy between fingerprints and DNA. We once
observed that “information derived from the [DNA] sample is
substantially the same as that derived from fingerprinting.”
Rise, 59 F.3d at 1559-60. Our sister circuits have made simi-
lar observations. See United States. v. Mitchell, 652 F.3d 387,
410 (3rd. Cir. 2011) (en banc) (“Given the record in front of
us today, we conclude that a DNA profile is used solely as an
accurate, unique, identifying marker—in other words, as fin-
gerprints for the twenty-first century.”); Boroian v. Mueller,
616 F.3d 60, 67 (1st Cir. 2010) (“Given the DNA Act’s strin-
gent limitations on the creation and use of DNA profiles,
CODIS currently functions much like a traditional fingerprint
database, permitting law enforcement to match one identifica-
tion record against others contained in the database.”); Banks
v. United States, 490 F.3d 1178, 1192 (10th Cir. 2007)
(“These restrictions allow the Government to use an offend-
er’s DNA profile in substantially the same way that the Gov-
ernment uses fingerprint and photographic evidence—to
identify offenders, to solve past and future crimes, and to
combat recidivism.”).

   But our more recent decisions have explicitly recognized
that DNA testing constitutes a greater infringement on privacy
than fingerprinting. In Kriesel, we noted that “concerns about
DNA samples being used beyond identification purposes are
real and legitimate.” 508 F.3d at 947-48. In Kincade, a major-
                      HASKELL v. HARRIS                   2007
ity of the en banc court found that DNA testing represents a
significantly greater infringement on privacy than fingerprint-
ing. Judge Gould, concurring, wrote that “unlike fingerprints,
DNA stores and reveals massive amounts of personal, private
data about [an] individual.” 379 F.3d at 842 n.3. “[U]nlike
DNA, a fingerprint says nothing about the person’s health,
their propensity for particular disease, their race and gender
characteristics, and perhaps even their propensity for certain
conduct.” Kriesel, 508 F.3d at 948 (quoting Kincade, 379
F.3d at 842 n.3 (Gould, J., concurring)).

   The majority stresses the limited subset of genetic informa-
tion used by law enforcement to establish a DNA profile, so-
called “junk DNA.” Maj. Op. at 1970. However, “studies
have begun to question the notion that junk DNA does not
contain useful genetic programming material.” Kincade, 379
F.3d at 818 n.6 (citation omitted). “[W]ith advances in tech-
nology, junk DNA may reveal far more extensive genetic
information.” Kriesel, 508 F.3d at 947.

   Even with today’s technology, however, junk DNA reveals
more information than a fingerprint. Unlike fingerprint pat-
terns, which do not appear to be hereditary, DNA sampling
reveals information about familial relationships. Identical
twins do not have the same fingerprints, but they do have the
same DNA. Siblings, parents, and children, who do not have
similar fingerprints, have similar DNAs. Because of this simi-
larity, DNA has been used for “familial searching,” in which
law enforcement officials look for partial DNA matches
between crime scene DNA samples and DNA profiles in
CODIS. Defendants claim that California does not currently
conduct such familial searches on arrestee DNA profiles, but
the possibility—even likelihood—that California will begin
conducting such searches in the future remains. But see
Mitchell, 652 F.3d at 409 n.19 (finding privacy concerns
based on familial searching “speculative”).
2008                  HASKELL v. HARRIS
                            Conclusion

   We have never allowed the compulsory taking of DNA
samples from mere arrestees. We should not begin now. Prop-
osition 69 does not authorize the taking of DNA samples from
felony arrestees for identification purposes. Rather, it autho-
rizes the taking of DNA samples for solely investigative pur-
poses. Such takings are unconstitutional under the Supreme
Court’s decisions in Davis and Hayes, and under our deci-
sions in Ortiz-Hernandez and Garcia-Beltran.

   Because the unconstitutionality of Proposition 69 is clear
under these cases, the totality of the circumstances test that
we have applied in cases involving convicted felons is irrele-
vant. However, if I were to apply the test, I would find the
State interests served by taking DNA samples from felony
arrestees who will never be convicted of the felony for which
they are arrested, and from arrestees before they are convicted
of that felony, much weaker than the majority finds them. I
would find the strength of plaintiffs’ privacy interests much
stronger.

  I respectfully dissent.
