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Bill v. Brewer cert petition 720

Bill v. Brewer cert petition 720

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No. The
Supreme Court the United States
DANIEL BILL, BRYAN HANANIA,
AND MICHAEL MALPASS
Petitioners,
WARREN BREWER AND HEATHER POLOMBO,
Respondents. Petition for Writ Certiorari the United
States Court Appeals for the Ninth Circuit
PETITION FOR WRIT CERTIORARI
Paul Orfanedes
Michael Bekesha
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street, S.W., Ste. 800
Washington, 20024
(202) 646-5172
mbekesha@judicialwatch.org
Counsel for Petitioners
QUESTION PRESENTED
Whether under what circumstances the Fourth
Amendment permits the police search
individuals DNA exclude that person the
source unknown DNA found crime scene.
PARTIES THE PROCEEDINGS
Petitioners Daniel Bill, Bryan Hanania, and
Michael Malpass (collectively Plaintiffs) three
officers the Phoenix Police Department (PPD) sued Warren Brewer and Heather Polombo
(collectively Defendants), also officers the PPD,
for violating Plaintiffs Fourth Amendment rights.
111
TABLE CONTENTS
QUESTION PRESENTED .........................................
PARTIES THE PROCEEDINGS ........................
TABLE CONTENTS ........................................... iii
TABLE AUTHORITIES .......................................
PETITION FOR WRIT CERTIORARI .............................................
DECISIONS BELOW ..................................................
JURISDICTION ..........................................................
CONSTITUTIONAL AND
STATUTORY PROVISIONS
INVOLVED .......................................................
STATEMENT THE CASE ....................................
Factual Background ..............................
II.
The Course Proceedings ....................
REASONS FOR GRANTING
THE PETITION .............................................
Defendants did not have
probable cause believe
that Plaintiffs DNA would
meaningfully aid the
investigation the death Sgt. Drenth .......................................
II.
The probable cause standard
required search
individuals DNA
paramount importance ........................
CONCLUSION ..........................................................
APPENDIX ................................................................
Judgment the U.S. Court Appeals for the
Ninth Circuit ........................................
Opinion the U.S. Court Appeals for the
Ninth Circuit ........................................
Judgment Dismissal Civil Case .................................... 17a
Order Memorandum the
U.S. District Court for
Arizona Granting Defendants
Motion Dismiss .............................. 19a
TABLE AUTHORITIES
CASES
Dalia United States,
441 U.S. 238 (1979) ........................................
DAs Office Osborne,
557 U.S. (2009) .................................... 10,
Katz United States,
389 U.S. (1967) ........................................
Maryland King,
133 Ct. 1958 (2013) ............ 11, 12, 17, 18,
Messerschmidt Millender,
132 Ct. 1235 (2012) ....................................
Missouri McNeely,
133 Ct. 1552 ................................................
Warden Hayden,
387 U.S. 294 (1967) .................................. 13,
CONSTITUTIONAL PROVISIONS
AND STATUTES
U.S. CONST. amend .................................. ..... passim U.S.C. 1254(1) .......................................................
MISCELLANEOUS
Suzanna Ryan, Touch DNA Analysis:
Using The Literature Help
Answer Some Common Questions,
Forensic Magazine
(June 18, 2012),
http://www.forensicmag.com/articles
/2012/06/touch-dna -analysis-usinglitera ture-help-answ er-some-common questions .........................................................
PETITION FOR WRIT CERTIORARI
Plaintiffs respectfully petition for writ
certiorari review the judgment the United
States Court Appeals for the Ninth Circuit. This
case raises important federal question:
Whether under what circumstances
the Fourth Amendment permits the
police search individuals DNA
exclude that person the source
unknown DNA found crime scene.
DECISIONS BELOW
The Ninth Circuit affirmed the District Courts
judgment.
The opinion the Ninth Circuit
reported 799 F.3d 1295 and reproduced App.
2a-16a. The unpublished ruling the District Court reproduced App. 19a-49a.
JURISDICTION
The Ninth Circuit issued its opinion August
31, 2015. This Court has jurisdiction under
U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The only relevant constitutional statutory
provision the Fourth Amendment the U.S.
Constitution:
The right the people secure
their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not violated, and warrants shall issue, but upon
probable cause, supported oath
affirmation, and particularly describing
the place searched, and the
persons things seized.
STATEMENT THE CASE
Plaintiffs brought suit for declaratory and
injunctive relief and nominal damages remedy the
violation their rights under the Fourth
Amendment.
More specifically, Plaintiffs alleged
that
Defendants
violated
Plaintiffs
Fourth
Amendment rights when they subjected Plaintiffs
warrantless, suspicionless searches their DNA.
Not only did Defendants fail obtain search
warrants before taking DNA from Plaintiffs, but
Defendants did not have probable cause nor
individualized suspicion any wrongdoing
Plaintiffs. Rather, Defendants justification for the
searches was exclude Plaintiffs the sources
unknown DNA found the scene the death
fellow officer. Although the Ninth Circuit ultimately
found that the orders authorizing Plaintiffs
detentions for purposes obtaining their DNA were
equivalent search warrants, the mere fact that
Plaintiffs responded the scene, but were never
close proximity the locations where the unknown
DNA was found, does not satisfy the Fourth
Amendments probable cause requirement.
Factual Background. October 18, 2010, PPD Sgt. Sean Drenth was
found dead outside his patrol car empty dirt
lot just south the Arizona State Capitol. Appendix
(App.) 4a. Shortly after Sgt. Drenths body was
discovered, over 300 persons including PPD
officers converged the area where Sgt. Drenths
body had been found. Id. Included among them
were Plaintiffs, who responded officer down
emergency radio broadcast. Id.
During the course the investigation, full
unknown male DNA profile was found Sgt.
Drenths patrol car and partial unknown male
DNA profile was found Sgt. Drenths weapons.
Id. 5a. time had Plaintiffs been sufficient
proximity the patrol car weapons have
deposited their DNA the car weapons. Id.
20a-2la. August 2011, Defendants applied judge the Maricopa County Superior Court for orders
detention authorizing the temporary detention
Plaintiffs for purposes taking samples their
DNA. Id. 22a. Defendants applications and
supporting affidavits were completely devoid any
facts establishing individualized suspicion that
Plaintiffs had committed criminal wrongdoing
were otherwise responsible for the death Sgt.
Drenth. Id. The affidavits stated, pertinent part, follows:
Your Affiant, Detective Warren Brewer, Peace Officer for the City Phoenix the State Arizona, being first duly
sworn, upon oath, deposes and says
that: engaged, within the scope his
authority, the investigation
alleged criminal offense punishable least one year the State Prison;
There probable cause believe that about the 18th day October
2010, the County Maricopa, State Arizona, the felony Homicide
violation A.R.S. 13-1105Al was
committed suspect/s unknown;
III
The procurement saliva sample
mouth swab from [names and dates
birth Plaintiffs BILL, HANANIA,
and MALPASS and the other search
team members] may contribute the
identification the individual who
committed the felony offense described
above;
Such evidence cannot obtained
our Affiant from the Law Enforcement
Agency employing his (sic) from the
Criminal Identification Division the
Arizona Department Public Safety.
Your Affiant further deposes and says
that:
October
18th,
2010
approximately 2255 hours, Phoenix
Police Sergeant Sean Drenth was found
deceased from single gunshot wound his chin area. was lying outside
his patrol vehicle, dirt lot 1825 Jackson Street. shotgun was lying his chest, his duty weapon was found the opposite side fence and his
secondary weapon was lying the
ground next his right ankle
[P]artial unknown male DNA found
the weapons, and full unknown male
DNA profile collected from Sergeant
Drenths patrol vehicle indicate this
was homicide ...
Approximately 300 City Phoenix
Police Officers responded the call
Capitol Police regarding injured City Phoenix Officer. Approximately
Phoenix Police Officers entered the
scene where Sergeant Drenth was
found. attempts identify the
unknown DNA profile/s, investigators
have collected buccal swabs from all but
five the Phoenix Police Personnel
that were inside the scene. All Phoenix
Fire Personnel and Capitol Police
Personnel that entered the scene have
voluntarily provided buccal swabs. Five the approximately Phoenix Police
Officers that were inside the scene
refused provide buccal swabs.
All five officers had the potential
inadvertently deposit their DNA the
collected evidence. The five officers
were earlier contacted Investigators
and were asked voluntarily provide
buccal swabs for elimination purposes.
The five officers are Bryan Hanania
#6581, Patrick Clinton #7113, Daniel
Bill #7540, Michael Malpass #6532 and
Brian Milhone #64 ...
This investigation has led investigators believe that least two possible
scenarios could have taken place. The
possible scenarios are the scene was
homicide staged look like suicide suicide staged look like homicide
Your affiant requests the issuance
this court order allow investigators
obtain saliva sample from [name
birth Plaintiffs BILL, HANANIA,
and MALPASS and the other search
team members] analyzed for DNA
and compared other evidence this
investigation.
Id. 22a-24a. The detention orders were issued
later that day. Id. 24a. The detention orders also
were completely devoid any conclusions that
individualized suspicion existed that Plaintiffs
had committed criminal wrongdoing were
otherwise responsible for the death Sgt. Drenth.
Id. 24a-25a. The detention orders stated,
pertinent part, follows: THE
COURT:
FINDING
THIS
That there probable cause believe
that the crime Homicide had been
committed, such offense being felony
punishable more than one year
the state prison;
The procurement saliva sample
mouth swab [names and dates birth Plaintiffs BILL, HANANIA, and
MALPASS and the other search team
members] may contribute the
identification the individual who
committed the offense;
III
That such evidence cannot obtained Detective Warren Brewer #6828
from
either the
Phoenix
Police
Department
the
Criminal
Identification Division the Arizona
Department Public Safety; HEREBY ORDERED:
That [name and badge numbers
Defendants BREWER and POLOMBO],
Detective Darrell Branch #5986,
Detective Brian Hansen #6250 the
City Phoenix Police Department
authorized effectuate this order;
That saliva sample mouth swab
from the person [names and dates
birth Plaintiffs BILL, HANANIA,
and MALPASS and the other search
team members] obtained;
III
That this evidence obtained
connection with the crime homicide;
That this evidence used the
identification exclusion [names
and dates birth Plaintiffs BILL,
HANANIA, and MALPASS and the
other search team members] the
perpetrator the offense listed herein.
Id.
Between August 15, 2011 and August 17, 2011,
Defendants used buccal swabs take Plaintiffs
DNA and impounded the samples evidence. Id.
24a.
Defendants subsequently had the DNA
analyzed. Id. 25a. They continue maintain
possession both the DNA and the results the
analyses and will continue for long
fifty-five years, until 2066. Id.
II.
The Course Proceedings. response Plaintiffs Complaint, Defendants
moved dismiss under Rule 12(b)(6) the Federal
Rules Civil Procedure. Id. Sa. their motion,
Defendants argued that Plaintiffs Complaint failed state claim for violation the Fourth
Amendment and that Defendants were entitled
qualified immunity. Id. 28a. April 16, 2013, the U.S. District Court for the
District Arizona dismissed Plaintiffs Complaint.
Id. 48a. doing so, the District Court found that
the
warrantless,
suspicionless
searches
Appellants DNA were reasonable under the Fourth
Amendment.
Id.
Because the District Court
determined that the Complaint failed state
claim upon which relief could granted, the
District Court did not decide whether Defendants
were entitled qualified immunity. Id. 28a.
Plaintiffs subsequently appealed. August 31, 2015, panel the U.S. Court
Appeals for the Ninth Circuit affirmed the District
Courts judgment.
However, unlike the District
Court, the Ninth Circuit concluded that the
detention orders authorizing the taking Plaintiffs
DNA satisfied the Warrant Clause the Fourth
Amendment. Id. 14a.
REASONS FOR GRANTING THE PETITION
Every day, the average person sheds roughly
400,000 skin cells. Suzanna Ryan, Touch DNA
Analysis: Using The Literature Help Answer
Some Common Questions, Forensic Magazine (June
18, 2012), http://www.forensicmag.com/articles/2012/
06/touch-dna -analysis-using-literature-help-answersome-common -questions. With five six those
cells, forensic scientist can obtain DNA profile.
Id. person touches object for seconds,
there more than percent chance that that
individual will leave enough skin cells produce
DNA profile. Id. Police therefore find the collection
and analysis DNA extremely helpful
evidentiary tool. See DAs Office Osborne, 557
U.S. 52, (2009). deal with this expanding technology already widespread use throughout the Nation[,], this
Court granted certiorari Maryland King
establish standard for the collection and analysis DNA from individuals charged with serious
crimes. 133 Ct. 1958, 1968 (2013). This case
presents question the Court did not address
King, however: what standard governs the collection
and analysis DNA from individual neither
charged nor even suspected committing serious
crime, but whom police seek exclude the source unknown DNA. Since more likely than not
that person will unknowingly leave DNA home, work, and everywhere else between and
expanding technology enables the police collect
all some that DNA weeks later, the Court
should grant certiorari address whether under
what circumstances the Fourth Amendment permits
police search individuals DNA exclude that
person the source unknown DNA found
crime scene.
Defendants did not have probable cause believe that Plaintiffs DNA would
meaningfully aid the investigation the death Sgt. Drenth.
The taking individuals DNA constitutes
search under the Fourth Amendment. King, 133
Ct. 1968-69. For search comply with the
Fourth Amendment, the police must either first
obtain warrant conduct the search the search
must fall within few specifically established and
well delineated exceptions. Katz United States,
389 U.S. 347, 357 (1967); see also Missouri
McNeely, 133 Ct. 1552, 1558 (2013) ([A]
warrantless search person reasonable only falls within recognized exception.).
That
principle applies search for evidence that will
used criminal investigation. Id.
This
Court has
interpreted the Fourth
Amendment require the following search
warrants:
First, warrants must issued
neutral,
disinterested
magistrates.
Second, those seeking the warrant must
demonstrate the magistrate their
probable cause believe that the
evidence sought will aid particular
apprehension conviction for
particular offense. Finally, warrants
must particularly describe the things seized well the place
searched.
Dalia United States, 441 U.S. 238, 255 (1979)
(internal citations and quotations omitted). issue this case the second prong: whether Defendants
had probable cause believe that Plaintiffs DNA
would aid the investigation Sgt. Drenths death.
Although [t]he Fourth Amendment does not
require probable cause believe evidence will
conclusively establish fact before permitting
search, does require probable cause believe the
evidence sought will
aid particular
apprehension conviction.
Messerschmidt
Millender, 132 Ct. 1235, 1248 (2012). Warden Hayden, the police entered house that they
believed armed bank robber had entered. 387
U.S. 294, 297 (1967). Upon gaining permission
enter the house, they found the suspected robber
well shotgun and pistol flush tank and jacket and trousers the type the fleeing man
was said have worn washing machine. Id.
298. determining whether search warrant was
needed search for and seize the clothing, the
Court examined whether there different analysis
for search for mere evidence instead search
for fruits, instrumentalities contraband. Id.
306-307.
The Court concluded that there
difference. Id. stated:
The requirements the Fourth
Amendment can secure the same
protection privacy whether the
search for mere evidence for
fruits, instrumentalities contraband.
There must, course, nexus -automatically provided the case
fruits, instrumentalities contraband between the item seized and
criminal behavior. Thus the case
mere evidence, probable cause must examined terms cause
believe that the evidence sought will aid particular apprehension
conviction. doing, consideration
police purposes will required. But
such problem presented this case.
The clothes found the washing
machine matched the description
those worn the robber and the police
therefore could reasonably believe that
the items would aid the identification the culprit.
Id. (internal citation omitted). short, the Court
concluded that there must more than
generalized attenuated connection between the
place searched, the item seized, and the
crime that was committed. this case, the connection between the place searched (Plaintiffs mouths), the items
seized (Plaintiffs DNA), and the crime under
investigation (the possible homicide Sgt. Drenth)
was extraordinarily attenuated best. Plaintiffs
were never considered suspects. Plaintiffs also
were never closer than fifteen feet from Sgt. Drenths
body and weapons (thirty feet, the case Plaintiff
Malpass).
They never touched entered Stg.
Drenths patrol car. was highly unlikely that any them could have deposited their DNA either
the patrol car weapons. The only connection
between Plaintiffs DNA and Sgt. Drenths death was
that Plaintiffs showed work that day and
assisted with the investigation.
The DNA left the scene could have been
deposited anyone. could that the killer (if was, fact, homicide). could that any
the approximately PPD officers unidentified
number fire personnel Arizona State Capitol
police who entered the scene, area that was
never defined. could that fellow officer who
used the patrol car received ride from Sgt.
Drenth some point during the six weeks prior
Sgt. Drenths death. could that mechanic
who had serviced the patrol car. Or, could that arrestee who had been placed the back the
patrol car within the previous six weeks. There
any number possible explanations for the
unknown DNA, including contamination. What
known that Plaintiffs were never sufficient
proximity where the unknown DNA was found
make likely that one more them could have
been the source the unknown DNA. result,
searching Plaintiffs mouths for their DNA was
unlikely assist the police investigation any
meaningful
way.
Plaintiffs
privacy
was
compromised for meaningful gain.
Although the Ninth Circuit paid lip service the
principle that probable cause search concerns the
connection the items sought with the crime and
the present location the items (App. 12a), the
court applied this standard only superficially.
Instead conducting searching review for any
connection between the police investigation into Sgt.
Drenths death and Plaintiffs DNA, the Ninth
Circuit concluded that there was probable cause
believe the evidence sought could found the
place searched (inside [P]laintiffs mouths).
Id. course there was probable cause that
Plaintiffs DNA would found Plaintiffs mouths.
The assertion practically tautology.
scientific certainty that individuals mouth
swabbed, that individuals DNA will found. the
police only need show that there probable cause
that individuals DNA will found that
individuals mouth, the Fourth Amendment becomes
meaningless.
That not protection against
invasion privacy; license for it.
The Ninth Circuit also failed undertake any
meaningful analysis how taking Plaintiffs DNA
could have aided the polices investigation.
accepted face value the polices bald assertion that
taking Plaintiffs DNA may contribute the
identification the individual who committed the
offense, and determined, without any explanation,
that doing would plainly aid the conviction eventual criminal defendant, negating any
contention trial that police had contaminated the
relevant evidence. App. 13a. point did the
Ninth Circuit address Plaintiffs precise locations,
distance from where the unknown DNA was found, the substantial unlikelihood that Plaintiffs could
have been the source(s) the unknown DNA. Given
that the undeniable purpose obtaining Plaintiffs
DNA was exclude Plaintiffs the source(s) the
unknown DNA found the scene, the Ninth
Circuits ruling provides limiting principle
whatsoever governing when the police may compel individual provide DNA sample exclude
that person the source unknown DNA. Without
such limiting principle, the Fourth Amendment
provides protection against exclusionary DNA
searches such the searches which Plaintiffs
were subjected.
II.
The probable cause standard required search individuals DNA
paramount importance.
The advent DNA technology one the most
significant scientific advancements our era. The
full potential for use genetic markers medicine
and science still being explored. King, 133 Ct. 1966. While the insertion buccal swab into
persons mouth may seem like relatively
insignificant physical intrusion, the information
obtained the police about person result
this intrusion far from insignificant. DNA reveals
far-reaching and complex characteristics like
genetic traits along with individuals identity.
Id. 1967. The privacy interests information
obtained from DNA samples are significant that
statutes authorizing them frequently contain
substantial privacy protections. The Maryland DNA
Collection Act issue King explicitly
limit[ed] the information added
DNA database and how may used.
Specifically, [o]nly DNA records that
directly relate the identification
individuals shall collected and
stored. 2-505(b)(l). purpose other
than identification permissible:
person may not willfully test DNA
sample for information that does not
relate
the
identification
individuals specified this subtitle.
2-512(c). Tests for familial matches
are also prohibited. See 2-506(d)
person may not perform search the
statewide DNA data base for the
purpose identification offender connection with crime for which the
offender may biological relative
the individual from whom the DNA
sample was acquired).
Id.
Similarly, the Maryland DNA Collection Act
mandated procedure which the police took DNA
samples from all arrestees charged with particular
crimes. the Court stated:
The Maryland DNA Collection Act
provides that, order obtain DNA
sample, all arrestees charged with
serious crimes must furnish the sample buccal swab applied, noted,
the inside the cheeks. The arrestee
already valid police custody for
serious offense supported probable
cause.
The DNA collection not
subject the judgment officers ...
Id. 1970. Because these statutory safeguards
and procedures, the Court concluded that searches
under the Maryland DNA Collection Act did not
amount significant invasion privacy that
would render the DNA identification impermissible
under the Fourth Amendment. Id. 1980.
However, few safeguards very specific
circumstances not prevent the police from
invading the privacy individuals all possible
circumstances. this case, the facts are completely
inapposite.
Defendants seized Plaintiffs DNA,
which implicated Plaintiffs significant privacy
interests, without any the statutory safeguards
that existed King. Nor was Plaintiffs DNA taken
pursuant standardized procedure that applies entire class persons, such all persons
arrested for particular offenses. Nothing protects
Defendants from analyzing Plaintiffs DNA any
way Defendants see fit. noted above, the average person sheds roughly
400,000 skin cells every day. The collection only
few those skin cells can used create DNA
profile. addition, DNA unknowingly can left object after seconds contact, and that DNA
could retrievable long six weeks after such
contact occurs. DNA left everyone. can
found everywhere. Because contains the most
private, intimate information individual, the
Fourth Amendment cannot allow the police
haphazardly search individuals DNA simply
because may assist identifying unknown DNA.
CONCLUSION
The Court should grant this petition.
Respectfully submitted,
Paul Orfanedes
Michael Bekesha
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
mbekesha@judicialwatch.org
Counsel for Petitioners THE UNITED STATES COURT
APPEALS FOR THE NINTH CIRCUIT
No. 13-15844
D.C. No. 2:12-cv-02613-SRB
FILED
SEP 2015
U.S. District Court for Arizona,
Phoenix
DANIEL BILL; al.,
Plaintiffs -Appellants,
WARREN BREWER and HEATHER POLOMBO,
Defendants Appellees.
MANDATE
The judgment this Court, entered August
31, 2015, takes effect this date.
This constitutes the formal mandate this
Court issued pursuant Rule 41(a) the Federal
Rules Appellate Procedure.
FOR THE COURT:
Molly Dwyer
Clerk Court
Rhonda Roberts
Deputy Clerk THE UNITED STATES COURT
APPEALS FOR THE NINTH CIRCUIT
No. 13-15844
D.C. No. 2:12-cv-02613-SRB
U.S. District Court for Arizona,
Phoenix
DANIEL BILL; al.,
Plaintiffs -Appellants,
WARREN BREWER and HEATHER POLOMBO,
Defendants Appellees.
OPINION
Appeal from the United States District Court
for the District Arizona
Susan Bolton, District Judge, Presiding
Argued and Submitted
June 2015 San Francisco, California
Filed August 31, 2015
Before: Barry Silverman, Ronald Gould,
and Andrew Hurwitz, Circuit Judges.
Opinion Judge Hurwitz
SUMMARY*
Civil Rights
The panel affirmed the district courts
dismissal action brought three Phoenix
police officers who alleged that two other officers
violated the Fourth and Fourteenth Amendments
when, pursuant state court order, they obtained
DNA samples from the plaintiffs exclude them
contributors DNA crime scene.
The panel held that the superior court orders
authorizing the collection plaintiffs DNA satisfied
the Warrant Clause the Fourth Amendment. The
panel further held that was not unreasonable,
under the circumstances, ask sworn officers
provide saliva samples for the sole purpose
demonstrating that the DNA left crime scene
was not the result inadvertent contamination
on-duty public safety personnel.
COUNSEL
Paul Orfanedes, Michael Bekesha (argued),
Judicial Watch, Inc., Washington, D.C., for
Plaintiffs-Appellants
This summary constitutes part the opinion the
court. has been prepared court staff for the convenience
the reader.
Gary Verburg, City Attorney, Robert Hyde
(argued), Assistant City Attorney, Office the City
Attorney,
Phoenix,
Arizona, for
DefendantsAppellees.
OPINION
HURWITZ, Circuit Judge: this U.S.C. 1983 action, three Phoenix police
officers allege that two other officers violated the
Fourth and
Fourteenth Amendments
when,
pursuant state court order, they obtained DNA
samples from the plaintiffs exclude them
contributors DNA crime scene. The district
court dismissed the complaint, and affirm. October 18, 2010, Phoenix Police Sergeant
Sean Drenth died from gunshot wound his head.
His body was found the northwest corner
empty lot near the Arizona State Capitol; shotgun
was across his chest and second weapon his
ankle. Sergeant Drenths patrol car was the center the lot, and his service weapon was found just
beyond the south side the lot. More than 300
public safety personnel, the chief police, and the
mayor quickly converged the scene. Roughly 100
people entered the area where Sergeant Drenths
body was discovered, including the three plaintiffs,
who were assigned canine search teams.
The police investigators assigned the case
initially attempted determine whether Sergeant
Drenths death was homicide staged look like
suicide suicide staged look like homicide.
Detective Warren Brewer led the investigation with
the assistance Detective Heather Polombo. That
investigation revealed unknown male DNA profiles Drenths patrol car and weapons. Over the
ensuing months, Polombo received consent collect
DNA samples from more than 100 individuals who
had entered the crime scene order eliminate
them contributors the unknown DNA. Each
the approximately fifty Phoenix Police Department
officers who entered the crime scene consented
give samples, with the exception the three
plaintiffs and two others.
Polombo met with the five non-consenting officers April 2011. She told them that they had been
excluded suspects any crime because their
portable
radios
and
the
mobile
digital
communicators their vehicles confirmed their
locations the night Drenths death, and she
again requested DNA samples exclude them
contributors the questioned DNA. Polombo
provided each officer with police department DNA
Collection Fact Sheet Drenth Investigation (the
DNA Memo), explaining that their DNA samples
would used only for this limited purpose, and
would not entered into [the Combined DNA
Index System (CODIS)]l used identify DNA
found future crime scenes. CODIS centrally-managed database linking DNA profiles
culled from federal, state, and territorial DNA collection
The five officers nonetheless continued refuse provide DNA samples. Brewer and Polombo then
sought court orders pursuant Arizona Revised
Statutes 13-390522 obtain buccal swabs-a Q-tip
swab along the inside
programs, well profiles drawn from crime-scene evidence,
unidentified remains, and genetic samples voluntarily provided relatives missing persons. United States Kincade, 379
F.3d 813, 819 (9th Cir. 2004) (en bane).
Arizona Revised Statutes 13-3905 provides, relevant part: peace officer who engaged, within the scope the
officers authority, the investigation felony may make
written application upon oath affirmation magistrate for order authorizing the temporary detention, for the purpose obtaining evidence identifying physical characteristics, identified particularly described individual residing
found the jurisdiction over which the magistrate presides.
The order shall require the presence the identified
particularly described individual such time and place the
court shall direct for obtaining the identifying physical
characteristic evidence. The magistrate may issue the order showing all the following:
Reasonable cause for belief that felony has been
committed.
Procurement evidence identifying physical
characteristics from identified particularly described
individual may contribute the identification the individual
who committed such offense.
The evidence cannot otherwise obtained the
investigating officer from either the law enforcement agency
employing the affiant the department public safety. the five officers cheeks-for DNA testing.
support the applications for the orders, Brewer
submitted affidavits describing the five officers
presence the crime scene, noting their potential [have] inadvertently deposit[ed] their DNA the
collected evidence, and avowing that the DNA
samples may contribute the identification the
individual who committed the homicide. superior
court judge issued the orders, and buccal swabs were
taken from the five officers. The samples were
analyzed and the results included investigative
reports along with the results analysis swabs
taken from others the scene. The swabs are
currently impounded the Department pursuant
Arizona
Revised
Statutes
13-4221.3
The
Department has repeatedly stated that none the
officers suspected having committed any crime.
*** For the purposes this section, identifying physical
characteristics includes, but not limited to, the fingerprints,
palm
prints,
footprints,
measurements,
handwriting,
handprinting, sound voice, blood samples, urine samples,
saliva samples, hair samples, comparative personal appearance photographs individual. Arizona Revised Statutes 13-4221(A) provides that DNA
samples collected connection with homicide must
retained for [t]he period time that person who was
convicted the offense ({remains incarcerated for that offense until the completion the persons supervised release, or,
for cold cases, afifty-five years until person convicted
the crime and remains incarcerated under supervised
release for that offense. The statute gives government entities
({discretion concerning the conditions under which biological
evidence retained, preserved transferred among different
entities. Id. 13-4221(F). December 2012, plaintiffs filed this
U.S.C. 1983 action, claiming that Brewer and
Polombo violated the Fourth Amendment
obtaining, analyzing, and retaining plaintiffs DNA.
The complaint sought (1) nominal damages $1.00
for each plaintiff; (2) declaration that the seizure
the DNA was unlawful; and (3) injunctive relief
precluding defendants from continuing maintain
possession, custody, control the DNA samples
and ordering them destroy samples and any
analyses and reports Plaintiffs DNA samples.
The district court dismissed the complaint for
failure state claim. This appeal timely followed. have jurisdiction under U.S.C. 1291.
review nova the district courts granting
motion dismiss for failure state claim,
Weiland Am. Airlines, Inc., 778 F.3d 1112, 1114
(9th Cir. 2015), and accept true the factual
allegations [the] complaint, Ashcroft al-Kidd,
131 Ct. 2074, 2079 (2011). may affirm the
district court any basis supported the record.
Gonzalez Planned Parenthood L.A., 759 F.3d
1112, 1114 n.1 (9th Cir. 2014).
II.
The Supreme Court has held that using buccal
swab the inner tissues persons cheek
order obtain DNA samples search under the
Fourth Amendment. Maryland King, 133 Ct.
1958, 1968-69 (2013); see also Missouri McNeely,
133 Ct. 1552, 1565 (2013) ([A]ny compelled
intrusion into the human body implicates
significant,
constitutionally
protected
privacy
interests.). Thus, the issue before whether the
defendants respected relevant Fourth Amendment
standards collecting plaintiffs DNA. Schmerber California, 384 U.S. 757, 768 (1966). Plaintiffs
briefs argue that because defendants fail[ed]
obtain search warrants before taking DNA samples
and had individualized suspicion that Plaintiffs
had committed criminal wrongdoing, collection
their DNA violated the Fourth Amendment because does not fall within any the established
exceptions the warrant requirement.4 disagree.
The superior court orders
authorizing the collection the DNA samples fully
satisfied the warrant requirement the Fourth
Amendment.
Ordinarily, the reasonableness search
depends governmental compliance with the
Warrant Clause, which requires authorities
demonstrate probable cause neutral magistrate
and thereby convince him provide formal
authorization proceed with search issuance appeal, plaintiffs have not developed the arguments made
below that continued possession their DNA violates the
Fourth Amendment and that the defendants omitted material
information from the applications the superior court. Thus,
these arguments are forfeited. See Carmickle Commr, Soc.
Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining address argument because was not argued awith any
specificity appeal).
lOa particularized warrant. United States Kincade,
379 F.3d 813, 822 (9th Cir. 2004) (en bane). The
orders issued the superior court pursuant
Arizona Revised Statutes 13-3905 were not
formally denominated search warrants. Moreover,
the state statute requires showing only
reasonable cause for belief that felony has been
committed support detention order, id., 133905(A)(l)-something the Arizona Supreme Court
has defined less than probable cause, State
Rodriguez, 921 P.2d 643, 651 (Ariz. 1996)-and
specifies particular quantum suspicion that the
evidence sought may contribute the identification the individual who committed such offense, 133905(A)(2).
However, when considering Fourth Amendment
challenges evidence seized pursuant 13-3905
orders, the Arizona Supreme Court has described
such orders warrants. State Jones, P.3d
273, 280 (Ariz. 2002). That court has also stated that
probable cause the standard that must met
for 13-3905 order involving bodily invasion
constituting
search
under
the
Fourth
Amendment. Id. 281; see also State Wedding,
831 P.2d 398, 404 (Ariz. Ct. App. 1992) (The
affidavit [supporting 13-3905 order for saliva and
blood samples] clearly supports the ... finding that
there was probable cause search and seize the
defendant the time the detention.). Thus,
analyze the 13-3905 orders this case,
notwithstanding the more limited language the
statute, for compliance with the Warrant Clause
the Fourth Amendment.
lla
The precise and clear words the Fourth
Amendment require only three things for valid
search warrant:
First, warrants must issued
neutral, disinterested magistrates.
Second, those seeking the warrant
must demonstrate the magistrate
their probable cause believe that
the evidence sought will aid
particular apprehension conviction
for particular offense. Finally,
warrants must particularly describe
the things seized, well the
place searched.
Dalia United States, 441 U.S. 238, 255 (1979)
(citations and internal quotation marks omitted).
There can contest that the orders here
satisfied the first and third requirements: they were
issued superior court judge and described
saliva sample seized mouth swab from
the person the plaintiffs. Whether the orders
satisfy the Warrant Clause therefore turns
whether the submitted affidavits demonstrated
probable cause believe that the evidence sought
would aid apprehension conviction for
particular offense. sure, the orders here did not seek obtain
evidence that the plaintiffs committed crime. But
contrary plaintiffs intimations, [t]he critical
element reasonable search not that the owner
12a the property, this case the person,
searched suspected crime. Zurcher Stanford
Daily, 436 U.S. 547, 556 (1978). Rather, probable
cause search concerns the connection the
items sought with crime and the present location
the items. United States OConnor, 658 F.2d 688,
693 n.7 (9th Cir. 1981). course, law enforcement
must demonstrate nexus ... between the item seized and criminal behavior. Warden, Md.
Penitentiary Hayden, 387 U.S. 294, 307 (1967).
[I]n the case mere evidence, probable cause for
such nexus must examined terms cause
believe that the evidence sought will aid
particular apprehension conviction. Id.
These constitutional requirements were satisfied
here. The superior court expressly found probable
cause believe that the crime Homicide had been
committed. Plaintiffs wisely not challenge this
finding; indeed, the affidavits detailed the date,
time, victim, and crime scene the highly publicized
death being investigated. The affidavits also
explained that DNA samples were sought from all
public safety personnel who entered the crime scene exclude them depositors the questioned
DNA. cannot meaningfully debated that there
was probable cause believe the evidence sought
could found the place searched (inside
plaintiffs mouths). See Illinois Gates, 462 U.S.
213, 230 (1983) (explaining that probable cause
commonsense, practical question).
Moreover, the affidavits plainly demonstrated
nexus between the crime under investigation and
13a
the evidence sought. Warden, 387 U.S. 307. They
stated that [a]pproximately Phoenix Police
Officers entered the scene, along with numerous
other public safety personnel; that all these public
safety personnel except for plaintiffs and two other
Phoenix police officers (identified name and badge
number) had already provided samples; and that
such samples would analyzed for DNA and
compared other evidence th[e] investigation
[i]n attempts identify the unknown DNA
profile/s found the scene, and thus may
contribute the identification the individual who
committed the felony offense described.
That plaintiffs had themselves already been
excluded suspects does not undermine the nexus
between the evidence desired and the crime
investigated; excluding public safety personnel
the source DNA would plainly aid the
conviction eventual criminal defendant,
negating any contention trial that police had
contaminated the relevant evidence. Messerschmidt Millender, 132 Ct. 1235, 1248 n.7 (2012)
(emphasis and citation omitted); see also
Morgenthau, 457 A.2d 472, 473-76 (N.J. Super. Ct.
App. Div. 1983) (per curiam) (affirming order
compelling collection blood and hair samples and
finger and palm prints from individuals who were
not suspects homicide investigation because
these physical exemplars constituted material
evidence relevant [the suspects] guilt and the
orders, while not denominated warrants,
comport[ed] with all the requisites search
warrant). therefore conclude that the superior
14a
court orders authorizing the collection plaintiffs
DNA satisfied the Warrant Clause the Fourth
Amendment. Given that conclusion, need not
address whether exception the warrant
requirement would have applied the absence
the orders. sure, search could unreasonable,
though conducted pursuant otherwise valid
warrant, intruding personal privacy
extent disproportionate the likely benefits from
obtaining fuller compliance with the law. United
States Torres, 751 F.2d 875, 883 (7th Cir. 1984).
The Fourth Amendment thus also requires
analysis the extent the intrusion [plaintiffs]
privacy interests and the States need for the
evidence. Winston Lee, U.S. 753, 763 (1985);
see also Spencer Roche, 659 F.3d 142, 146 (1st Cir.
2011) (applying reasonableness analysis bodily
search conducted pursuant warrant). Because
intrusions into the human body implicate the
most personal and deep-rooted expectations
privacy, the Fourth Amendment requires
discerning inquiry into the facts and circumstances determine whether the intrusion was justifiable.
Winston, 470 U.S. 760 (quoting Schmerber, 384
U.S. 767-68).
But undue intrusion occurred here. The
Supreme Court has expressly held that buccal swabs
are brief and minimal physical intrusions
involv[ing] virtually risk, trauma, pain.
15a
King, 133 Ct. 1979 (quoting Schmerber, 384
U.S. 771). buccal swab, like breathalyzer test,
does not require piercing the skin and may
conducted safely outside hospital environment and
with
m1n1mum
inconvenience
embarrassment. Skinner Ry. Labor Execs. Assn,
489 U.S. 602, 625 (1989).
Moreover, the reasonableness particular
search must considered the context the
persons legitimate expectations privacy. King,
133 Ct. 1978. Although policemen not
abandon their constitutional rights upon induction
into the department, L.A. Police Protective League
Gates, 907 F.2d 879, 886 (9th Cir. 1990) (citation and
internal quotation marks omitted), the governments
interest the integrity its police force may
justify some intrusions the privacy police
officers which the fourth amendment would not
otherwise tolerate, Kirkpatrick City Los
Angeles, 803 F.2d 485, 489 (9th Cir. 1986); see also
Biehunik Felicetta, 441 F.2d 228, 231 (2d Cir.
1971) (The policemans employment relationship
its nature implies that certain aspects his
affairs, does not have the full privacy and liberty
from police officials that would otherwise enjoy.). was hardly unreasonable here ask sworn
officers provide saliva samples for the sole
purpose demonstrating that DNA left crime
scene was
not the
result inadvertent
contamination on-duty public safety personnel.
And, although share plaintiffs concerns over
potential misuse DNA samples reveal private
lGa
information about contributors, see King, 133 Ct. 1979-80, such danger realistically posed
here. The DNA Memo expressly guarantees
plaintiffs DNA samples will used for comparison evidence this report only and will not used
for any research type testing, including race,
ethnicity health, provided any outside
organization for those purposes, entered into the
employee database, entered into CODIS. The
plaintiffs have not alleged any plausible reason
believe that the Phoenix Police Department will not
abide these limitations, and the district court did
not err declining speculate about possible
future abuse.
III. AFFIRM the judgment the district court.
Because the complaint quoted extensively from the DNA
Memo, was incorporated reference and may ({assume
that its contents are true for purposes motion dismiss
under Rule 12(b)(6). United States Ritchie, 342 F.3d 903,
908 (9th Cir. 2003).
17a
UNITED STATES DISTRICT COURT
DISTRICT ARIZONA 12-2613-PHX-SRB
Daniel Bill, Bryan Hanania, and Michael
Malpass,
Plaintiffs,
Warren Brewer, Heather Polombo, John
Does I-V, and Jane Does I-V,
Defendant(s).
JUDGMENT DISMISSAL CIVIL CASE
Jury Verdict. This action came before the
Court for trial jury. The issues have been
tried and the jury has rendered its verdict.
_x_ Decision Court. This action came for
consideration before the Court. The issues
have been considered and decision has been
rendered. ORDERED AND ADJUDGED that pursuant the Courts order dated April 16, 2013, judgment entered favor Defendants and against
Plaintiffs. Plaintiffs take nothing, and complaint
and action are dismissed.
18a
BRIAND. KARTH
District Court
Executive/Clerk
April 16, 2013
s/Kathy Gerchar
By: Deputy Clerk
cc: (all counsel)
19a
UNITED STATES DISTRICT COURT
DISTRICT ARIZONA 12-02613-PHX-SRB
Daniel Bill, Bryan Hanania, and Michael
Malpass,
Plaintiffs,
Warren Brewer, Heather Polombo, John
Does I-V, and Jane Does I-V,
Defendants.
ORDER issue Defendants Warren Brewer and
Heather Polombos Motion Dismiss (MTD) (Doc.
12). The Court held oral argument Defendants
Motion March 18, 2013. (See Doc. 25, Min. Entry.) BACKGROUND
Pursuant U.S.C. 1983, Plaintiffs Daniel
Bill, Bryan Hanania, and Michael Malpass have
brought suit against Defendants for violation their
Fourth and Fourteenth Amendment rights under the
United States Constitution and are seeking
declaratory and injunctive relief, well nominal
damages. (Doc. Compl. 1.) Plaintiffs are all
police officers the City Phoenix Police
Department (PPD) who were among over
20a
300 persons who converged the area where
Sergeant Sean Drenth was found dead October
18, 2010. (Id. 1!11 3-5, 11-15.) Plaintiffs Bill and
Hanania were never closer than fifteen feet from
Sergeant Drenths body and the weapons found
nearby, and Plaintiff Malpass was never closer than
thirty feet from the weapons found with Sergeant
Drenths body. (Id. 1!11 10, 17-18.) Plaintiffs never
touched entered Sergeant Drenths patrol car. (Id.
1!11 17-18.) Reports detailing Plaintiffs actions and
locations were available PPD detectives
Defendants Brewer and Polombo all relevant
times. (Id. 1!116-7, 21-24.)
During the course the PPDs homicide
investigation into the death Sergeant Drenth,
full unknown male DNA profile was found
Sergeant Drenths patrol vehicle, and partial
unknown male DNA profile was found Sergeant
Drenths weapons. (Id. 1!11 25-26.) Beginning
December 27, 2010, and continuing over the next
several months, Defendant Polombo communicated
with Plaintiffs and other members their search
teams about obtaining DNA samples for what
Defendant Polombo said were exclusionary purposes.
(Id. 29.) Plaintiffs agreed principle provide
the samples the condition that they receive
satisfactory assurances about the use and
disposition the samples and any subsequent
analysis the samples. (Id. During their
communications Plaintiffs informed Defendant
Polombo their specific locations and activities
October 18, 2010, knew had substantial
reason know that they could not have been the
2la
source any DNA found Sergeant Drenths
patrol vehicle and weapons. (Id. 30.) Plaintiffs
allege information and belief that Defendant
Polombo shared this information with Defendant
Brewer and others. (Id.) April 18, 2011, Defendant Polombo met
with Plaintiffs and provided them with
memorandum entitled DNA Collection Fact Sheet Drenth Investigation, which stated that DNA
samples had been recovered from the scene that had
not been identified, that DNA samples from all
known people the scene [we]re needed
eliminate them contributors, that recipients
the memorandum were being requested provide
samples DNA based information indicating
they were the scene, that DNA samples would
obtained buccal swabs and retained
laboratory accordance with Arizona Revised
Statutes (A.R.S.) 13-4221, and that the results
the DNA testing would documented report
and would discoverable accordance with
Arizona law. (Id. 33.) During the April 18, 2011,
meeting, Defendant Polombo told Plaintiffs that she
knew they were not involved Sergeant Drenths
death because the locators their portable radios
and the mobile digital communicators their
vehicles confirmed their locations the night
October 18, 2010. (Id. 35.)
After this meeting Plaintiffs retained counsel attempt negotiate compromise with the
PPD, and while these negotiations were continuing,
Defendants Brewer and Polombo were instructed
22a
apply the Maricopa County Superior Court for
detention orders pursuant A.R.S. 13-3905,
authorizing the temporary detention Plaintiffs for
purposes taking samples their DNA. (Id. 1!11 3637.) August 2011, Defendant Brewer applied
the Maricopa County Superior Court for detention
orders for Plaintiffs, and support these
applications executed affidavits stating that there
was probable cause believe that the felony
homicide was committed unknown suspect
October 18, 2010, that the procurement saliva
sample mouth swab from Plaintiffs may
contribute the identification the individual who
committed the felony offense, and that such
evidence could not obtained from the law
enforcement agency employing him from the
criminal identification division the Arizona
Department Public Safety. (Id. 39.)
The
affidavits
also
described
the
circumstances under which Sergeant Drenths body
was found and explained that partial unknown male
DNA was found the weapons his body and
full unknown male profile was collected from his
vehicle, indicating that this was homicide. (Id.)
The affidavits stated that investigators believed two
possible scenarios could have taken place: that the
scene was homicide staged look like suicide suicide staged look like homicide. (Id.) The
affidavits also stated that October 18, 2010,
approximately 300 PPD officers responded the call
regarding injured officer and that approximately PPD officers entered the scene where Sergeant
Drenth was found. (Id.) The affidavits affirmed that
23a
investigators had collected buccal swabs from all but
five the PPD personnel that were inside the scene
and stated that [a]ll five officers had the potential
inadvertently deposit their DNA the collected
evidence. (Id.) The affidavits listed Plaintiffs
three these five officers and requested that the
court issue order allow investigators obtain saliva sample from Plaintiffs analyzed for
DNA and compared other evidence this
investigation. (Id.)
Plaintiffs allege that Defendant Polombo
assisted the preparation the applications for the
detention orders, including the affidavits, and that the time that Defendants Brewer and Polombo
prepared and submitted the affidavits, they knew
had substantial reason know that the following
statements contained the affidavits were false: (1)
that the procurement saliva sample from
Plaintiffs may contribute the identification the
individual who committed the felony, (2) that
approximately fifty PPD officers entered the scene
where Sergeant Drenth was found, and (3) that [a]ll
five officers had the potential inadvertently
deposit their DNA the collected evidence. (Id. 1!11
40, 42.) Plaintiffs allege that the applications and
affidavits were completely devoid any fact
establishing individualized suspicion that Plaintiffs had committed criminal wrongdoing were
otherwise responsible for the death Sergeant
Drenth and that Defendants Brewer and Polombo
omitted facts well known them establishing the
locations and activities Plaintiffs the night
October 18, 2010, including the fact that none the
24a
officers were sufficient proximity Sergeant
Drenths body his patrol vehicle weapons
have deposited their DNA either the vehicle
any the weapons. (Id. 1!11 41, 43.) August 2011, the Honorable Douglas
Rayes the Maricopa County Superior Court issued
the detention orders requested, finding that there
was probable cause believe that homicide had
been committed, that the procurement saliva
sample from Plaintiffs may contribute the
identification the individual who committed the
offense, and that Detective Brewer could not obtain
such evidence from the PPD the criminal
identification division the Arizona Department
Public Safety. (Id. 44.) Judge Rayes ordered that
saliva sample mouth swab obtained from
Plaintiffs and that this evidence used the
identification exclusion [Plaintiffs] ... the
perpetrator the offense. (Id.) August and
17, 2011, Defendants Brewer and Polombo served
Plaintiffs with the detention orders and obtained
buccal swabs from them, which were subsequently
provided the PPDs Laboratory Services Bureau
for processing and analysis; point did Plaintiffs
consent the taking and subsequent processing
and analysis their DNA. (Id. 1!11 45-47, 49.) least two occasions the PPD denied that
the detention orders served Plaintiffs were search
warrants that Plaintiffs were suspects Sergeant
Drenths death. (Id. 51.) The PPD specifically
stated August 21, 2011, that [t]hese are not
search warrants and not require the same level
25a
cause, and August 22, 2011, the PPD issued
notice again denying that the court orders were
search warrants and stating that [t]hese court
orders are based reasonable cause. (Id. 1!11 5253.) The PPD explained, Members some media
and other outlets may make claims these employees
are considered suspects. This not true. These
employees were determined within critical
area within the scene and their DNA was collected
strictly for comparative analysis. (Id. 53.) The
PPD recognized that Plaintiffs were among certain
employees who exercised their constitutional right
and refused provide their DNA, necessitating
court order. (Id.)
The PPDs Laboratory Services Bureau
processed the buccal swabs taken from Plaintiffs and
prepared reports; Defendants Brewer and Polombo
continue maintain control over these reports
well the impounded buccal swabs. (Id. 1!11 54-57.)
The DNA samples will retained the PPD for
long fifty-five years, until 2066, pursuant
A.R.S. 13-4221. (Id. 58.)
Plaintiffs allege that the act taking buccal
swab was unconstitutional search under the
Fourth and Fourteenth Amendments the United
States Constitution, was done without search
warrant, without probable cause, and without
having non-law enforcement special need. (Id. 1!11
60-62.) Plaintiffs also allege that Defendants Brewer
and Polombo omitted material information when
seeking the orders detention and that they
continue violate Plaintiffs constitutional rights
26a
retaining the samples DNA, well analyses
and reports these samples, which were derived
from unlawful searches and seizures. (Id. 1!11 63-64.)
Plaintiffs seek declaration that the searches and
seizures their DNA were unlawful; injunction
enjoining Defendants from continuing maintain
possession, custody, control Plaintiffs DNA
samples; order that Defendants expunge
destroy the buccal swabs ... and any analyses and
reports Plaintiffs DNA samples; nominal
damages the amount one dollar each; and
reasonable attorneys fees and costs. (Id., Prayer for
Relief.)
II.
LEGAL STANDARDS AND ANALYSIS
Standard Review
The Federal Rules Civil Procedure require
only short and plain statement the claim
showing that the pleader entitled relief,
order give the defendant fair notice what the claim and the grounds upon which rests. Bell
Atl. Corp. Twombly, 550 U.S. 544, 555 (2007)
(quoting Fed. Civ. 8(a)(2); Conley Gibson, 355
U.S. 41, (1957)). Thus, dismissal for insufficiency complaint proper the complaint fails state claim its face. Lucas Bechtel Corp., 633 F.2d
757, 759 (9th Cir. 1980). While complaint attacked Rule 12(b)(6) motion does not need detailed
factual allegations, plaintiffs obligation provide
the grounds his entitle[ment] relief requires
more than labels and conclusions, and formulaic
27a
recitation the elements cause action will not
do. Twombly, 550 U.S. 555 (citations omitted). Rule 12(b)(6) dismissal for failure state
claim can based either (1) the lack
cognizable legal theory (2) insufficient facts
support cognizable legal claim. Conservation Force Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011), cert.
denied, Blasquez Salazar, 132 Ct. 1762 (2012). determining whether asserted claim can
sustained, [a]ll the facts alleged the complaint
are presumed true, and the pleadings are construed the light most favorable the nonmoving party.
Bates Mortg. Elec. Registration Sys., Inc., 694 F.3d
1076, 1080 (9th Cir. 2012). [A] wellpleaded
complaint may proceed even strikes savvy
judge that actual proof those facts improbable,
and that recovery very remote and unlikely.
Twombly, 550 U.S. 556 (quoting Scheuer
Rhodes, 416 U.S. 232, 236 (1974)). However, for
complaint survive motion dismiss, the nonconclusory
factual content,
and reasonable
inferences from that content, must plausibly
suggestive claim entitling the plaintiff relief.
Moss U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
2009) (quoting Ashcroft Iqbal, 556 U.S. 662, 678
(2009)). other words, the complaint must contain
enough factual content raise reasonable
expectation that discovery will reveal evidence
the claim. Twombly, 550 U.S. 556.
28a
Analysis
Defendants argue that Plaintiffs Complaint
should dismissed because Plaintiffs not state valid claim for constitutional violation and
Defendants are entitled qualified immunity.
(MTD 1.) Because Plaintiffs are seeking
declaratory and injunctive relief addition
nominal damages, qualified immunity would
defense only their claim for nominal damages. See
Am. Fire, Theft Collision Managers, Inc.
Gillespie, 932 F.2d 816, 818 (9th Cir. 1991)
(Qualified immunity affirmative defense
damage liability; does not bar actions for
declaratory injunctive relief. (quoting The
Presbyterian Church (U.S.A.) United States, 870
F.2d 518, 527 (9th Cir. 1989))). The relevant
question this Court must address for Plaintiffs
claims both equitable and monetary relief
whether they have adequately stated claim for
violation their constitutional rights under the
Fourth and Fourteenth Amendments. See Pearson
Callahan, 555 U.S. 223, 232 (2009) (in order for the
defense qualified immunity fail, plaintiff must
allege facts mak[ing] out violation
constitutional right and show that this right was
clearly established the time defendants alleged
misconduct (quotation omitted)). Because the Court
determines that Plaintiffs have not stated claim for constitutional violation, need not address
whether any alleged right was clearly established.
29a
Plaintiffs Claim That
They Were Subjected
Unjustified Warrantless,
Suspicionless Searches
Plaintiffs bring single count pursuant
U.S.C. 1983 for violation their Fourth
Amendment right secure their persons
against unreasonable searches and seizures, (see
Compl. 1!11 59-66), which made applicable the
States the Due Process Clause the Fourteenth
Amendment. See City Ontario, Cal. Quon, 130 Ct. 2619, 2624 (2010). The Fourth Amendment
provides that
The right the people secure
their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not violated, and Warrants shall issue, but upon
probable cause, supported Oath
affirmation,
and
particularly
describing the place searched,
and the persons things seized.
U.S. Const. amend. IV. Plaintiffs not allege that
Defendants violated A.R.S. 13-3905, nor they
allege that they were unlawfully detained seized.
(See generally Compl.) Rather, they allege that
Defendants violated their rights under the U.S.
Constitution subjecting them buccal swabs for
purposes DNA analysis without obtaining search
warrants, without probable cause, and without
having non-law enforcement special need. (Compl.
30a 62; see also Doc. 20, Pls. Mem. Oppn MTD
(Resp.) (Plaintiffs not claim that they were
unlawfully detained; they claim that they were
unlawfully searched.).) clearly established that taking buccal
swab extract DNA constitute[s] search under
the Fourth Amendment. Friedman Boucher, 580
F.3d 847, 852 (9th Cir. 2009); see also Kohler
Englade, F.3d 1104, 1109 n.4 (5th Cir. 2006) (It undisputed that the collection saliva sample
for DNA analysis search implicating the Fourth
Amendment.). also generally true that [a]
warrantless search unconstitutional unless the
government demonstrates that falls within certain
established and well-defined exceptions the
warrant clause. Friedman, 580 F.3d 853 (internal
quotation marks and citation omitted; alteration
incorporated). Plaintiffs point out three categories searches that the Ninth Circuit Court Appeals
has characterized help [ing] organize the
jurisprudence, and argue that because the searches
here did not occur exempted area such
border, airport, prison; were clearly not
administrative; and did not encompass non-law
enforcement special need, they are unconstitutional.
(See Resp. 5-7 (quoting United States Kincade,
379 F.3d 813, 822-23 (9th Cir. 2004)).) The Court
agrees with Plaintiffs that the searches here not
fall within any these particular exceptions the
warrant clause, but these categories are not
necessarily mutually-exclusive, and there are
variety conditions under which law enforcement
may execute search without first complying with
31a
[the] dictates [of the Warrant Clause]. See Kincade,
379 F.3d 822; see also, e.g., United States
Knights, 534 U.S. 112, 121 (2001) (Although the
Fourth Amendment ordinarily requires the degree
probability embodied the term probable cause,
lesser degree satisfies the Constitution [and the
warrant requirement rendered unnecessary] when
the balance governmental and private interests
makes such standard reasonable.); Terry Ohio,
392 U.S. 27-31 (1968) (holding constitutional
reasonable search for weapons for the protection
[a] police officer, where has reason believe that dealing with armed and dangerous
individual, regardless whether has probable
cause arrest the individual for crime).
Regardless whether they fall into one the
three categories described Kincade, Terry and
other cases stand for the proposition that some
cases warrantless searches even the body are
reasonable and thus permissible. See, e.g., United
States Cameron, 538 F.2d 254, 258 (9th Cir. 1976)
(The law this circuit ... that there per
requirement for warrant conduct body search border crossing cases.); see also Natl Treasury
Emps. Union Von Raab, 489 U.S. 656, 665 (1989)
(affirming the longstanding principle that neither
warrant nor probable cause, nor, indeed, any
measure individualized susp1c10n,
indispensable component reasonableness every
circumstance). Instead concluding that the
searches here are per unconstitutional because
they were executed without search warrant and
not fall within one the three exceptions the
32a
warrant requirement discussed Kincade, the
Court concludes that should apply the totality
circumstances test for determining whether the
searches here were reasonable. See Pennsylvania
Mimms, 434 U.S. 106, 108-09 (1977) (The
touchstone our analysis under the Fourth
Amendment always the reasonableness all the
circumstances the particular governmental
invasion citizens personal security. (quoting
Terry, 392 U.S. 19)); Angus Dodson, DNA LineUps Based Reasonable Suspicion Standard, Colo. Rev. 221, 231-32 (Winter 2000)
([A]lthough the Fourth Amendment protects people
from unreasonable search and seizure, the
Amendment does not per preclude reasonable
searches and seizures, regardless whether they
are conducted with probable cause search
warrant.); see also Samson California, U.S.
843, 7-48
(2006)
(applying
totality
circumstances test determine whether
suspicionless search parolee violated the
Fourth Amendment); Knights, 534 U.S. 118-19,
122 (applying totality circumstances test
finding that warrantless search probationer
was reasonable where was supported
reasonable suspicion and authorized condition probation); Haskell Harris, 669 F.3d 1049,
1053-54 (9th Cir. 2012), rehg bane granted, 669
F.3d 1049 (We apply the totality the
circumstances balancing test determine whether warrantless search reasonable.); United States Kriesel, 508 F.3d 941, 942, 946-4 (9th Cir. 2007)
(determining that the court should apply the totality
33a circumstances test evaluating constitutionality DNA Act requiring the DNA sample convicted
felon supervised release); Kincade, 379 F.3d
830-32 (determining that the court should apply the
totality circumstances test decide the
constitutionality suspicionless searches
conditional releasees
conducted for law
enforcement purposes). Under this test, [w]hether search reasonable determined assessing, the one hand, the degree which intrudes
upon individuals privacy and, the other, the
degree which needed for the promotion
legitimate governmental interests. Samson, 547
U.S. 848 (quoting Knights, 534 U.S. 118-19).1 The Court rejects Plaintiffs argument that there
may prerequisite the application this test: there must some legitimate reason for the individual having less than
the full rights citizen. (Resp. (quoting United States Pool, 621 F.3d 1213, 1219 (9th Cir. 2010), vacated moot,
659 F.3d 761 (2011)).) the absence any controlling
authority that the Court should not apply what the Supreme
Court has termed the ({(general Fourth Amendment approach,
the Court will apply here. See Samson, 547 U.S. 848
(quoting Knights, 534 U.S. 118); see also Wyoming
Houghton, 526 U.S. 295, 297-300, 303-06 (1999) (in
determining whether particular governmental action violates
the Fourth Amendment, courts ({inquire first whether the
action was regarded unlawful search seizure under the
common law when the Amendment was framed and where
that inquiry yields answer, [they] must evaluate the search seizure under traditional standards reasonableness)
(applying balancing test search passengers belongings
car). addition, while the detention orders issued here were
concededly not search warrants the typical sense, they were
prior judicial authorizations based individual suspicion that
Plaintiffs had evidence relevant the cnme being
investigated, which the Supreme Court has suggested takes
34a
Turning the governmental interest issue
here, [c]ertainly the interest society the
investigation felonies very high, especially
when the felony homicide. See State Grijalva,
533 P.2d 533, 535-37 (Ariz. 1975) (upholding
constitutionality A.R.S. 13-3905 and applying
balancing test conclude that the interest felony
investigation very high, while the degree
intrusion into the persons privacy relatively
slight); see also Washington Glucksberg, 521 U.S.
702, 728-729 (1997) (recognizing that state homicide
laws
advance states commitment their
unqualified interest the preservation human
life (quotation omitted)). Indeed, the importance
the governmental interest solving crimes was one the animating reasons behind the Supreme
Courts dictum Davis Mississippi that
detentions for the sole purpose obtaining
fingerprints
might, under narrowly defined
circumstances, found comply with the Fourth
Amendment even though there probable cause the traditional sense. See 394 U.S. 721, 727
(1969) (noting that fingerprinting inherently
this case outside the realm not only the special-needs and
administrative-search cases, but also cases such City
Indianapolis Edmond, where the Court suggested that the
balancing approach should not applied suspicionless
searches seizures conducted for general law enforcement
purposes. See Ashcroft al-Kidd, 131 Ct. 2074, 2082 (2011)
(The existence judicial warrant based individualized
suspicion takes this case outside the domain not only our
special-needs and administrative-search cases, but Edmond well.); see also City Indianapolis Edmond, 531 U.S. 32,
37-38, 40-43, (2000).
35a
more reliable and effective crime-solving tool than
eyewitness identifications confessions and not
subject such abuses the improper line-up and
the third degree).
The Supreme Courts elaboration why
probable cause may unnecessary certain
circumstances relevant the case hand:
Detention for fingerprinting may
constitute
much less serious
intrusion upon personal security than
other types police searches and
detentions. Fingerprinting involves
none the probing into
individuals private life and thoughts
that marks interrogation search.
Nor can fingerprint detention
employed repeatedly harass any
individual, since the police need only
one set each persons prints
Finally, because there danger
destruction fingerprints, the limited
detention need not come unexpectedly a[t] inconvenient time. For this
same reason, the general requirement
that the authorization judicial
officer obtained advance
detention would seem not admit
any exception the fingerprinting
context.
Id. 727-728; see also Hayes Florida, 470 U.S.
811, 816-817 (1985) (We also not abandon the
36a
suggestion ... that under circumscribed procedures,
the Fourth Amendment might permit the judiciary authorize the seizure person less than
probable cause and his removal the police station
for the purpose fingerprinting.). response Davis, nine states, including
Arizona,
enacted
procedures
for
judicially
authorizing detentions obtain evidence
identifying physical characteristics. See
Nontestimonial Identification Order Directed R.H.,
762 A.2d 1239, 1245-46 n.3 (Vt. 2000); Paul
Giannelli Edward Imwinkelried, Jr., Scientific
Evidence 2.04[a][2] 112 n.130 (4th ed. 2007)
(Scientific Evidence); see also A.R.S. 13-3905.2 A.R.S. 13-3905 provides that officer investigating felony amay make written application upon oath
affirmation magistrate for order authorizing the
temporary detention, for the purpose obtaining evidence
identifying physical characteristics, identified
particularly described individual and that the
magistrate may issue the order showing all the following: Reasonable cause for
belief that felony has been committed.
Procurement evidence identifying
physical characteristics from identified
particularly
described
individual
may
contribute the identification the
individual who committed such offense. The
evidence cannot otherwise obtained the
investigating officer from either the law
enforcement agency employing the affiant
the department public safety.
A.R.S. 13-3905(A). Identifying physical characteristics
include, but are anot limited to, the fingerprints, palm prints,
37a
These
statutes
have
generally
been
held
constitutional state courts, even when they allow
for detentions and obtaining physical evidence
less than probable cause. See Scientific Evidence
2.04[a][2] 112-16 nn.142-45; see also Grijalva,
533 P.2d 535-36 (upholding constitutionality
Arizona statute and ruling that the issuing judge
must have reasonable cause believe that
nexus between the person detained and the
crime being investigated exists). was
pursuant Arizonas statute that Plaintiffs buccal
swabs DNA were obtained this case. (See
Compl. 1!1137-39, 44-47.)
Despite the fact that DNA buccal swabs have
been denominated searches within the meaning
the Fourth Amendment, the Court finds that they
have all the characteristics fingerprinting that the
Supreme Court indicated could justify requiring less
than probable cause: they constitute much less
serious intrusion upon personal security than other
types police searches and detentions, they involve
none the probing into individuals private life
and thoughts that marks interrogation, they
need not employed repeatedly, they constitute inherently more reliable and effective crimesolving tool than eyewitness identifications
confessions, and they need not nor are they
alleged have come unexpectedly a[t]
inconvenient time. See Davis, 394 U.S. 727; see
footprints, measurements, handwriting, handprinting, sound
voice, blood samples, urine samples, saliva samples, hair
samples, comparative personal appearance photographs individual. Id. 13-3905(G).
38a
also Nontestimonial Identification Order, 762
A.2d 1246-4 (upholding Vermont rule allowing
saliva sampling for DNA based showing only
reasonable suspicion and concluding that the basic
elements saliva sampling for DNA are similar
the characteristics fingerprinting described
Davis); Dodson, supra 254 (DNA profiling
closely analogous fingerprinting, and the Fourth
Amendment supports limited application DNA
line-ups under the Davis Mississippi theory.).
Here, there was even the authorization judicial
officer obtained advance that the Supreme
Court deemed important. See Davis, 394 U.S.
728. The Court finds that the fact that DNA buccal
swab constitutes search not dispositive
whether may carried out reasonable
suspicion, opposed probable cause, pursuant Davis-contemplated procedure. See Terry, 392 U.S. (articulating reasonable suspicion standard
(though not using those words) search case);
Kincade, 379 F.3d 821 n.15 ([T]he fact that
DNA] extraction constitutes search hardly
dispositive [of its constitutionality], the Fourth
Amendment does not proscribe all searches and
seizures .... (quoting Skinner Ry. Labor Execs.
Assn, 489 U.S. 602, 619 (1989))).
Indeed, the Fourth Amendments proper
function constrain, not against all [compelled
intrusions into the body] such, but against
intrusions which are not justified
the
circumstances, which are made improper
manner. Schmerber California, 384 U.S. 757, 768
(1966). The Court has already found that the PPDs
39a
interest investigating homicide was great.
considering Plaintiffs privacy interests, this Court
joins with other courts and commentators finding
that the intrusion upon Plaintiffs privacy and bodily
integrity caused the buccal swabs the searches issue here was minimal. See, e.g., Haskell, 669
F.3d 1059 (The buccal swab cannot seriously
viewed unacceptable violation persons
bodily integrity.); United States Amerson, 483
F.3d 73, n.11 (2d Cir. 2007) (finding that
intrusion occasioned taking DNA blood sample
was minimal and noting that [i]f instead, the DNA
were collected cheek swab, there would
lesser invasion privacy because cheek swab can taken seconds without any discomfort);
Nontestimonial Identification Order, 762 A.2d
124 ([W]e not believe saliva procedure
involves serious intrusion upon personal security.
(quoting Davis, 394 U.S. 727)); Jules Epstein,
Genetic Surveillance The Bogeyman Response
Familial DNA Investigations, 2009 Ill. J.L. Tech. Poly 141, 152 (Spring 2009) (The taking bodily
material for DNA testing perhaps the least
intrusive all seizures--it involves penetration
the skin, pain, substantial inconvenience.);
Skinner, 489 U.S. 625 ([B]lood tests not
constitute unduly extensive imposition
individuals privacy and bodily integrity. (quotation
omitted)).
While the Ninth Circuit Court Appeals has
noted assessing the nature the privacy
intrusion that DNA often reveals more than
identity, has also found that such concerns are
40a
mitigated privacy protections. See Kriesel,
508 F.3d 7-48 (noting DNA Acts criminal
penalties for the unauthorized use DNA
samples). Here, Plaintiffs quoted extensively from
Fact Sheet they were given Defendant Polombo,
and thus the Court may consider this document
incorporated reference Plaintiffs Complaint.
(See Compl. 33); see also United States Ritchie,
342 F.3d 903, 908 (9th Cir. 2003) (Even
document not attached complaint, may
incorporated reference into complaint the
plaintiff refers extensively the document the
document forms the basis the plaintiffs claim.).
The fact sheet attached Defendants Motion
reveals that Defendants told Plaintiffs-and
Plaintiffs not allege that any these statements
are false-that their DNA samples would used
for comparison evidence this report only,
would not entered into CODIS, would not
entered into the employee database without
Plaintiffs permission, and would not used for
any research type testing, including race, ethnicity health nor will the sample[s] provided any
outside organization for those purposes. (MTD,
Appx Fact Sheet.) light these protections,
the Court finds that any concerns about DNA
samples being used beyond identification purposes are mitigated, see Kriesel, 508 F.3d 948, and
that, balance, the invasion Plaintiffs privacy
interests was slight comparison the important
governmental interest investigating homicides.
Finally, the
argument
that
Court considers Plaintiffs
conducting
warrantless,
41a
suspicionless, exclusionary searches persons,
including police officers, part ongoing
criminal investigation, can never reasonable
under the Fourth Amendment. (Resp. 11.) While undisputed that Plaintiffs were not suspects
Sergeant Drenths death, this does not mean that
the searches Plaintiffs DNA were suspicionless the traditional sense. Rather, A.R.S. 13-3905
and Arizona courts make clear, there must
[r]easonable cause for belief that felony has been
committed and reasonable cause believe that
connection exists between the person detained and
the crime being investigated, which form
individualized suspicion. See A.R.S. 13-3905(A)(l);
Grijalva, 533 P.2d 536; see also State Via, 704
P.2d 238, 243-44 (Ariz. 1985); State Wedding, 831
P.2d 398, 402 (Ariz. Ct. App. 1992) (In Grijalva, the
Arizona Supreme Court held that under the statute,
probable cause believe that the suspect committed
the crime not necessary requirement for the
temporary detention person obtain evidence
physical characteristics.); see also al-Kidd, 131
Ct. 2082 n.2 (rejecting the dissents suggestion
that individualized suspicion necessarily means that
the person suspected wrongdoing and noting
that common make statements such
have suspicion knows something about the
crime). Here, based the facts alleged
Plaintiffs, the Court concludes that there was
reasonable cause believe that there was nexus
between Plaintiffs and the crime being investigated Here, Judge Rayes found that there was probable
cause believe that homicide had been committed. (Comp!.
44.)
42a namely, that Plaintiffs responded the officer
down broadcast and were present the crime
scene. (See Compl. 1!11 12-15.) Plaintiffs were not
random persons pulled off the street with
connection whatsoever Sergeant Drenths death;
rather, while alleging they were never closer than
fifteen feet from Sergeant Drenths body and
weapons, they admit that they were the crime
scene, which sufficient establish the requisite
nexus between them and the crime being
investigated and allow Defendants infer that
their DNA could have been present. (See id. 1!11 1415, 17-18); Via, 704 P.2d 244 (determining that
requisite nexus existed between defendant and crime forgery where police reasonably inferred that the
victims encounters with the defendant and another
individuals reportedly suspicious encounters with
defendant were part common scheme).
Furthermore, the Court not convinced that
under either the Arizona statute the Fourth
Amendment the United States Constitution,
Plaintiffs had suspected committing the
crime order searched. See A.R.S. 133905(A)(2) (magistrate may issue order upon
showing that [p]rocurement evidence
identifying physical
characteristics
from
identified particularly described individual may
contribute the identification the individual who
committed such offense) (emphasis added);
Zurcher Stanford Daily, 436 U.S. 547, 556 (1978)
(The critical element reasonable search not
that the owner the property suspected crime
but that there reasonable cause believe that the
43a
specific things searched for and seized are
located the property which entry sought.);
Wayne LaFave, Search Seizure: Treatise
the Fourth Amendment 5.4(d) n.131 (5th ed. 2012)
([P]robable cause search has only with the
probability finding evidence the place searched,
and ... there need show probable cause
the person connected with that place.). Indeed, the
Supreme Court has found that the States interest enforcing the criminal law and recovering
evidence the same whether the third party
culpable not. Zurcher, 436 U.S. 555. While
Zurcher admittedly did not deal with the search
person, but rather persons premises, the Court
finds that its reasoning applicable here: whether
the third-party occupant suspect not, the States
interest enforcing the criminal law and recovering
the evidence remains the same and the seeming
innocence Plaintiffs does not foreclose the [right] search. See id. 560.
Plaintiffs undisputedly did not engage any
wrongdoing through which they sacrificed their right privacy. Nevertheless, given that there was
probable cause for belief that homicide had been
committed, the PPDs great interest investigating
the homicide, reasonable cause for belief that there
was nexus between Plaintiffs and the crime,
prior
judicial
determination
that
procuring
Plaintiffs DNA may contribute the identification the individual who committed such offense,
(Compl. 44), and the minimal intrusion upon
Plaintiffs privacy and bodily integrity, the Court
finds that Plaintiffs have not stated claim for
44a
violation their constitutional right free from
unreasonable searches. See Skinner, 489 U.S. 619
([T]he Fourth Amendment does not proscribe all
searches and seizures, but only those that are
unreasonable.); Schmerber, 384 U.S. 768 ([T]he
Fourth Amendments proper function constrain,
not against all [bodily] intrusions such, but
against intrusions which are not justified the
circumstances, which are made improper
manner
Other courts, commentators, and lawmakers
considering the issue have reached similar conclusions that
DNA other bodily samples can obtained for exclusionary
purposes some circumstances without violating the Fourth
Amendment. See, e.g., Ind. Code 35-38-7-15(b) (providing that
court may require DNA elimination samples from third party
where the petitioner has been excluded the perpetrator
accomplice DNA testing where ({extraordinary
circumstances are shown); Commonwealth Draheim, 849
N.E .2d 823, 829 (Mass. 2006) ([W]here the third parties are
not suspects, order respect the third parties constitutional
rights, the Commonwealth must show probable cause believe crime was committed, and that the [saliva] sample will
probably provide evidence relevant the question the
defendants guilt.); Matter Morgenthau, 457 A.2d 472, 473,
475-76 (N.J. Super. Ct. App. Div. 1983) (holding that order
compelling hair and blood samples and finger and palm prints
ais not denied the basis that was directed
nonculpable third party and finding that the trial judge
balanced the privacy interest the appellants and the effect the minimal invasion that privacy against the societal
interest adequate prosecution for multiple serious
criminal acts and correctly concluded athat the societal
interest should prevaiY); Paul Giannelli, ABA Standards
DNA Evidence, 24-SPG Crim. Just. 24, (Spring 2009)
(explaining that the ABA Standards DNA Evidence permit
({collecting biological samples from nonsuspects and awould
permit the issuance court order nonsuspect there
45a
Plaintiffs Claim That
Defendants Omitted
Material Information
When They Sought the
Orders Detention
Plaintiffs argue the alternative that the
Court were determine that the orders detention
permitted Defendants obtain samples Plaintiffs
DNA, then Defendants subsequent searches
Plaintiffs DNA were nonetheless unlawful under the
Fourth Amendment because the affidavits submitted Defendants obtaining the orders omitted
material information. (Resp. 14.) Specifically,
Plaintiffs allege that Defendants Brewer and
Polombo omitted from the applications and affidavits
facts well known them establishing the locations
and activities Plaintiffs ... the night October
18, 2010, including the fact that none the officers
were sufficient proximity Sergeant Drenths
body his patrol vehicle weapons have
deposited their DNA either the vehicle any the weapons. (Compl. 43; see also Resp. 14.)
probable cause believe that serious crime has been
committed, and sample necessary establish eliminate
that person contributor source the DNA evidence
otherwise establishes the profile person who may have
committed the crime (citation omitted)); see also Zurcher, 436
U.S. 556-57 n.6, 559 (finding support American Law
Institute Model Code and commentators the Fourth
Amendment for its holding that the critical element
reasonable search not that the owner the property
suspected crime but that there reasonable cause believe
that the specific things searched for and seized are
located the property).
46a
Ordinarily, for claim invalid search
warrant, the plaintiff must adequately allege (1)
that
the
warrant
affidavit
contained
misrepresentations omissions material the
finding probable cause, and (2) that the
misrepresentations omissions
were made
intentionally with reckless disregard for the
truth. See Bravo City Santa Maria, 665 F.3d
1076, 1083 (9th Cir. 2011); see also United States
Rettig, 589 F.2d 418, 422 (9th Cir. 1978).
reviewing the sufficiency affidavit,
magistrates determination probable cause should paid great deference, and courts should not
invalidate warrants interpreting affidavits
hypertechnical, rather than commonsense,
manner. Illinois Gates, 462 U.S. 213, 236 (1983)
(internal quotation marks and citations omitted;
alterations incorporated). The mere fact that the
affiant did not list every conceivable conclusion does
not taint the validity the affidavit. United States Burnes, 816 F.2d 1354, 1358 (9th Cir. 1987).
The Court agrees with Defendants that
Plaintiffs incorrectly contend fact the allegation
that Plaintiffs were never sufficient proximity
Sgt. Drenths patrol vehicle weapons have
deposited their DNA either the vehicle the
weapons. (Doc. 22, Defs. Reply MTD (Reply) (quoting Resp. 14).) Plaintiffs allege that was false statement the affidavits that they had the
potential inadvertently deposit their DNA the
collected evidence, but they also allege that over
300 persons converged the area where
Sergeant Drenths body had been found and that
47a
they were among those who went the scene. (See
Compl. 1!11 11, 14-15, 42.) The Court finds that was
reasonable for Judge Rayes determine based
these facts that Plaintiffs DNA could have
contaminated the crime scene and that saliva
samples from them could contribute the
identification the individual who committed the
offense helping establish whether the unknown
DNA profiles Sergeant Drenths weapons and
patrol car were from potential killer from crime
scene contamination. (See id. 44.) While Plaintiffs
allege that Plaintiff Malpass was never closer than
thirty feet from the weapons found with Sergeant
Drenths body and that never touched entered
Sergeant Drenths patrol car, and likewise that
Plaintiffs Bill and Hanania were never closer than
fifteen feet from Sergeant Drenths body weapons
and never touched entered his patrol car, the
Court finds that any omission these facts was not
material Judge Rayes determination that the
taking Plaintiffs DNA was warranted. (See id. 1!11
17-18). Notably, Plaintiffs not allege that the
affidavits falsely represented that Plaintiffs were
suspects; rather, the affidavits clearly stated that
Plaintiffs were asked voluntarily provide buccal
swabs for elimination purposes and that the PPD
wanted compare Plaintiffs DNA other
evidence this investigation. (See id. 39.)
require Defendants have included the exact
whereabouts Plaintiffs and the fact that they were
never within fifteen thirty feet Sergeant
Drenths body weapons would impose
hypertechnical requirement that the Court
confident was not material Judge Rayes
48a
determination that obtaining Plaintiffs DNA could
contribute the identity the killer. See Gates, 462
U.S. 236 (quotation omitted); see also United
States Ventresca, 380 U.S. 102, 108 (1965)
([A]ffidavits for search warrants ... must tested
and interpreted ... courts commonsense and
realistic fashion. .Technical requirements
elaborate specificity ... have proper place this
area.). The Court finds that any omission from
Defendant Brewers affidavits was not material and
that Plaintiffs have failed state claim upon
which relief can granted.
III.
CONCLUSION
Taking all Plaintiffs allegations true, the
Court finds that there was nothing unreasonable
about Defendants search Plaintiffs DNA the
manner which was conducted, nor did
Defendants omit any material information from
their affidavits. The Court accordingly grants
Defendants Motion Dismiss Plaintiffs Complaint.
ORDERED
granting Defendants
Motion Dismiss (Doc. 12) and instructing the
Clerk enter judgment favor Defendants.
Dated this 16th day April, 2013.
/s/ Susan Bolton
Susan Bolton
United States District Judge