U.S. v. Comprehensive Drug Testing, Inc., No. 05-10067 (9-13-10)(en banc)(per curiam opinion with a concurrences by Kozinski, partial concurrences and dissents by Bea, Callahan, and a dissent by Ikuta). This en banc decision regards the seizure by warrant of the drug testing records in a highly publicized baseball steroid case and the district courts' suppression/return decisions. The problem with electronic seizures, as the per curiam opinions states, is that there is no way to be sure exactly what an electronic file contains without somehow examining its contents. The government's efforts to locate particular files will require examining other files. The solution, under an updating of Tamura, is for the government to foreswear the plain view doctrine, and other possible exceptions, in their digging around electronic data authorized by a warrant. Kozinski, concurring, lays out his detailed test for how a magistrate should proceed with a search warrant (13966). Bea's concurrence and dissent goes to his disagreement with the finding that the government disregarded the terms of the search warrant. Bea also thinks the Kozinski concurrence is unnecessary. Callahan is troubled by Kozinski's "guidelines" and bright-line foreswearing of plain view. Callahan would go with a case by case approach. She would also reverse the district courts' orders. Ikuta's dissent joins Callahan's and deals with the decision to return data under Rule 41(g).

U.S. v. Pool, No. 09-10303 (9-14-10) (Callahan with Lucero concurring; Schroeder dissenting). A person is arrested on a felony. For his pretrial release, the government demands that he gives a DNA sample for "identification." The person objects that it is an unconstitutional search. That's the situation here. The 9th has now held that such a demand can be granted because when a court has determined that there is probable cause to believe the defendant committed a felony, the defendant has forfeited his right to his identity. The government's interest is to prove true identity. If he is acquitted or the charge is dismissed, the sample can be purged. As the court held:

If not at the time that a person is arrested, certainly once there has been a determination of probable cause to believe that an individual has committed a federal felony, the individual no longer has any "right" or legitimate expectation of keeping his or her identity from the government. Kincade , 379 F.3d at 837. In light of the government’s legitimate interests in determining the true identity of the person, the balance between those rights and the individual’s rights favors the government, at least where, as here, the purpose and the effect of requiring DNA are only to provide the government with the person’s true identity.

Id. at 14034.

The concurrence by a Tenth Circuit judge agrees this is a difficult case, and writes because the government has a program to only use the DNA for identification and not for other mischief. Schroeder, dissenting, stresses that there is no conviction. The majority misconstrues precedent, and goes further down a path that eviscertes the Fourth Amendment. The seizure of DNA is not under a search warrant, but only for pretrial release. She points out that no other circuit has so held.