The Ninth Circuit Court of Appeals ruled yesterday that the warrantless, forced taking of a DNA sample from a pretrial incarcerated individual who is not on probation or parole is a violation of the Fourth Amendment where the taking of the sample is unrelated to the pending charges.

Kenneth A. Friedman sued Dolphus Boucher and Elissa Luzaich for violating his civil rights. Boucher is a Las Vegas police officer. He wanted to take a DNA sample from Friedman who was charged with exposing himself and lewd behavior. Friedman had a history of sex crimes in Montana and Ohio but at the time of his arrest he lived in Las Vegas and he had completed his most recent parole in Montana. Friedman refused to give Boucher a sample. Boucher then went to Assistant District Attorney Elissa Luzaich and obtained permission to take a sample by force.

When Friedman again refused to give Boucher a sample and asked to talk to his lawyer. Boucher refused. Another officer threatened to hurt him if he did not comply. They also threatened to have other officers beat him up. At this point he was sitting on a bench in chains and shackles, chained to a metal bar on the bench.

Boucher then forced Friedman’s mouth open and took a buccal swab.

Friedman filed suit. The District Court granted a motion for summary judgment after the defendants claimed partial immunity. The Ninth Circuit ruled that since Friedman’s Fourth Amendment rights were violated and since the rule was well known at the time of the violation Boucher and Luzaich’s claim of immunity should have been denied.

Boucher and Luzaich alleged the existence of three exceptions to the Fourth Amendment’s warrant requirement but the court refused to accept them. First they claimed a “special needs” exception. But that only applies for non-law enforcement reasons and the defendant’s claim that they they were going to use it to find cold cases was a law enforcement purpose. Second they said that they were complying with a Montana law requiring the taking of a DNA sample from convicted sex offense felons. But the law appears to apply to only those who are on probation or parole and Boucher did not comply with the requirement that the sample be turned over to Montana authorities. Finally they claimed that since Friedman was incarcerated he had only limited privacy rights and they did not apply to the taking of a DNA sample which could be used for identity. But it was not being used to test his identity or for anything connected to the pending charges. Nor was it being used for a legitimate custodial purpose.

The Ninth Circuit reversed the grant of summary judgment and sent the case back to the District Court for trial.