In light of the Ninth Circuit's decision Thursday in Haskell v. Harris, 10-15152, Judge Karlton unsuprisingly denied the defendant's motion for return of a DNA sample taken by the U.S. Marshal's office when he briefly went into custody on an arrest warrant in U.S. v. Tuzman, 2/24/12 order. But Judge Karlton attached as an exhibit to his order his intended 48-page order that would have granted the motion on the ground that the forced taking of a DNA sample from a pretrial arrestee before conviction constitutes an unreasonable, warrantless search in violation of the Fourth Amendment, until Haskell beat him to the punch. Tuzman order exhibit. I'm hoping he's on to something in suggesting that "the Supreme Court's recent ruling in United States v. Jones, 132 S.Ct. 945 (2012), [may] mark a turning point in the depreciation of the Fourth Amendment['s]" warrant requirement. See Exhibit-Order, at 13 n.14.
In any event, the smart money is betting this fight is far from over and Judge Karlton's "exhibit" order will be persuasive authority for the all-but-inevitable en banc litigation in the Ninth Circuit. [I represent the defendant in this one].