04 16 13 Order Phoenix PPD DNA
Number of Pages:20
Date Created:April 16, 2013
Date Uploaded to the Library:February 20, 2014
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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT ARIZONA Daniel Bill, Bryan Hanania, and Michael Malpass, Plaintiffs, Warren Brewer, Heather Polombo, John Does I-V, and Jane Does I-V, Defendants. No. CV-12-02613-PHX-SRB 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 300 persons who converged the area where Sergeant Sean Drenth was found dead October 18, 2010. (Id. 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. 10, 17-18.) Plaintiffs never touched entered Sergeant Drenths patrol car. (Id. 17-18.) Reports detailing Plaintiffs actions and locations were available PPD detectives Defendants Brewer and Polombo all relevant times. (Id. 6-7, 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. 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 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 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. 36-37.) 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 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 to 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. 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 on 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. (Id. 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 be 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. 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 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. 52-53.) 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. 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. 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 retaining the samples DNA, well analyses and reports these samples, which were derived from unlawful searches and seizures. (Id. 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 a 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 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] well-pleaded 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 non-conclusory 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 to raise reasonable expectation that discovery will reveal evidence the claim. Twombly, 550 U.S. 556. 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. 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. 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, andeffects, 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 thepersons things seized. U.S. Const. amend. IV. Plaintiffs not allege that Defendants violated A.R.S. 133905, 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. 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, 470 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 a variety conditions under which law enforcement may execute search without first complying with [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 a 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 suspicion, 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 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 Line-Ups 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, 547 U.S. 843, 847-48 (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 banc 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, 946-47 (9th Cir. 2007) (determining that the court should apply the totality 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 is 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. 11819).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, 621F.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 v.Houghton, 526 U.S. 295, 297-300, 303-06 (1999) (in determining whether particular governmental action violates the Fourth Amendment, courts inquire first whether theaction was regarded unlawful search seizure under the common law when theAmendment was framed and where that inquiry yields answer, [they] must evaluatethe search seizure under traditional standards reasonableness) (applying balancing 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 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 fingerprintdetention employed repeatedly harass any individual, since the police need only one set each persons prints. Finally, because there 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 crime being investigated, which the Supreme Court has suggested takes this caseoutside the realm not only the special-needs and administrative-search cases, but also cases such City Indianapolis Edmond, where the Court suggested that thebalancing 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). danger destruction fingerprints, the limited detention need not comeunexpectedly a[t] inconvenient time. For this same reason, the general requirement that the authorization judicial officer obtained inadvance 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 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] 112 n.130 (4th ed. 2007) (Scientific Evidence); see also A.R.S. 13-3905.2 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] 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 A.R.S. 13-3905 provides that officer investigating 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 and that the magistrate may issue the order showing all the following: Reasonable cause for belief that felony has been committed. 2.Procurement evidence identifying physical characteristics from anidentified particularly described individual may contribute theidentification 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 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. Id. 13-3905(G). Arizonas statute that Plaintiffs buccal swabs DNA were obtained this case. (See Compl. 37-39, 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 be employed repeatedly, they constitute an inherently more reliable and effective crime-solving 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 also Nontestimonial Identification Order, 762 A.2d 1246-47 (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); cf. 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 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 1247 ([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.); cf. 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 mitigated privacy protections. See Kriesel, 508 F.3d 947-48 (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 Plaintiffsand Plaintiffs not allege that any these statements are falsethat their DNA samples would be 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 Court considers Plaintiffs argument that conducting warrantless, 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 committed3 and reasonable cause believe that connection exists between the person detained and the crime being investigated, which form individualized suspicion. See A.R.S. 133905(A)(1); 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. Here, Judge Rayes found that there was probable cause believe that ahomicide had been committed. (Compl. 44.) 2082 n.2 (rejecting the dissents suggestion that individualized suspicion necessarily means that the person suspected wrongdoing and noting that common make statements such I 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 namely, that Plaintiffs responded the officer down broadcast and were present the crime scene. (See Compl. 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. 14-15, 17-18); cf. 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. 13-3905(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); cf. 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 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 of 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 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.).4 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 thatan order compelling hair and blood samples and finger and palm prints is not denied the basis that was directed nonculpable third party and finding that the Plaintiffs Claim That Defendants Omitted Material Information When They Sought the Orders Detention Plaintiffs argue the alternative that if 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.) 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 trial judge balanced the privacy interest the appellants and the effect the minimal invasion that privacy against the societal interest adequate prosecution formultiple serious criminal acts and correctly concluded that the societal interest should prevail); Paul Giannelli, ABA Standards DNA Evidence, 24-SPG Crim. Just. 24,30 (Spring 2009) (explaining that the ABA Standards DNA Evidence permit collecting biological samples from nonsuspects and would permit the issuance court order nonsuspect there probable cause believe that serious crime has been committed, and a 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). 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 they were among those who went the scene. (See Compl. 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. 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 to 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 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.