to check that all the senators on behalf of mr green are i like to reserve five minutes for rebuttal writers that i think the first question that i'd like to address this morning is the question of what is precisely the presidential didn't supply the final vote to either of the five judge blocks in think kate also pointed out in his johnson concurring opinion that it's up to subsequent panels to decide the presidential value of proceeding panels when there are issues our opinion that they decided not to follow it and its souter's concurrence was that i think is really from our perspective the most important point in nichols said that basically the court was in equitable ways as to the legal issues involved  t as you had to for justice blocks and no one actually resolve the time i think we have the same thing here you've got two five judge blocks that disagree on the totality of circumstances analysis you have one judge who applied the special needs test and then you have five judges who disagreed with the special needs analysis and i think that their position was well taken because the admin and ferguson cases both emphasized that in fact you need individual eyes suspicion when the test is one for ordinary law enforcement purposes which in fact this is what we have here so that you don't have six judges hang back and can you have appeared to have six judges saying baldassarre one ground and one that went the other way and they decided not to accord that presidential status because it didn't actually have any sort of common ground between the two so i think that's really what the issue is whether or not you can find common ground between the plurality and the concurring opinion involved a star you couldn't the supreme court justice in that case and justice souter described as having no presidential value and then in two hundred k you have a situation where there's no common ground between the five scanlan's opinions only joined by if i just total there's a scandals and overrule that faced i think there's a binding precedent that says you need reasonable suspicion for a for a probation type search and if that's the case our supervised release but our position is that that search condition did not require him to provide suspicion less forcible blood samples so that his d n a analysis he could be undertaken and in fact he said there's any consent  at all it was certainly was revoked with respect to the i'd like to if i could that segue into the length claim here is that i think this does provide a statutory way that this court can avoid the constitutional issues and  that could only be read to apply retrospectively it found that there was ambiguous in the statute as to whether or not he reached free and the act meant offenses i think the district court was correct in that assessment you look at the statute it says that probation already got the status of being in pro in prison or on probation or parole or supervised release and then has been could refer to the conviction that got the person in prison or on supervised release or probation or parole but nothing in that language indicates an intention to relate back to offenses that were that were committed prior to the enactment and i think that if i have to know how could i understood his function which i thought was drawn by the district judge but that  the examples i given instincts here at page three nineteen no forty three where this is where congress use language like regardless of when the conviction occurred it also used language such as shall apply to convictions in the census entered before statute extends back in time prior to the enactment and the supreme court been very specific that what we're talking about retroactively that congress needs to be extremely specific that they use language like the language must be so cool or that it sustain only one interpretation here the district court correctly found that this land was not so clear that if you sustain only one interpretation because it could apply to individuals who are currently in prison who are currently on parole supervised release and who get new convictions for qualifying offenses that would suddenly create an obligation on the part of the probation officer or the bureau of prisons to take the sample and i think that's the conclusion that she reached and i think that's a correct the necessary and proper clause and i think that really the analysis still gets down to whether or not there is any commerce clause hook here because the necessary and proper clause and really the correct basis here because that has to be from an enumerated power and our position is there is no a significant fourth amendment intrusion here that is being undertaken that is separate from say the booking procedures that the f b i might employ in there and its process was let's the commerce clause justification for maintaining  fingerprint registry well what we're attacking is not the maintenance of the actual status but the statute that allows for this investigative activity of taking the stand pulls themselves we have a stack you here that allows  forcible intrusion there a lot of the hold them down if necessary to take the system that's what we're challenging not the actual maintenance of a database but the actual permission for the f b i or the guest actually probation officers for the federal fatter federal custody after a prior federal conviction it is very telling me that the federal government is allowed to take fingerprints for example from somebody who happens to be in federal custody that i am and i'm i'm not telling you that what i'm telling you is that this is a procedure that takes place after the person has been convicted of some offense and there is now is a subsequent investigative activity that's being undertaken gathering evidence for use in criminal prosecutions and there is no showing that those criminal prosecutions have any federal nexus this activity is unrelated to the crime that got the person into supervised release or your presence in the first place this is an investigation into other offenses they want to take this person's d n a and run it across the country to see if they've committed other particular crimes but if what if they took a blood sample at the time they think or put the person that the or well i think you know then you're going to have to question a feeler fingerprint before they're convicted so i think that if there was a statute allowed for intrusion that's not part of the normal normal booking process so i think that would make it different because where you needed a specific statutory grant in order to perform this type of intrusion but you don't need that in order to do the fingerprint flows i think it does because the month we were talking about about things that move in the other direction you know from one state to another to another interfering with interst i heard congress created the interstate commerce i think the argument focuses on the actual collection process which is effectively a federal investigation into crimes that are not shown to have been federally undertak and rather than go through the process of getting approval to change address and whatnot the district court entered an order staying his supervised release that we think with he could move to alaska and not comply yet with her order that he give up described where the special need never exists or doesn't exist anymore i'm over here and possibly talk just briefly about the second step of land wrath that i think there's a couple of important who has thank you number one judge good solid as a painting completely misses the aircraft implications of the new misdemeanor offenses available that is a new cause of action that became available after the change in the law which occurred after nards guilty plea so i think that that is a significant retroactive the fact and i think using aircraft effectively requires that this court find that that is a retroactive with the act because there is this new cost action available number two i disagree eleven eight two does not authorize intrusions into the bodies of supervised release seized or prisoners in order to acquire actually supervised release fees in order to acquire their d n a material so the law at the time the before it was only on a discretionary basis for the probation officer now it's mandatory again under states here this is a retroactive with that and then lastly i think that just the stories formulation that talks about the party's liability for past conduct or whose new duties with respect to transactions already completed and the supreme court has made clear that fair notice reasonable reliance and settled expectations offer sound guidance in analyzing  we're talking about here as far as the d n a sample which is another identifying information i mean convicted felons from the very beginning in the process they have to give up their information left and right in your princes as cliff to point out their names are kept in multiple action anyway i agree with you on that you're on and i feel you know i don't think that when i asked a friend of mine who was at congress but said jam for you vote for this bill well what was your because they told congress we don't think we have the authority to take these blood samples so when mr rain are pled guilty he could very reasonably believe that these samples could be taken from him also with respect to the wording of his search condition that's the same wording that this court in google the article health requires a reasonable suspicion standard so the wording of this search condition incorporated reasonable suspicion so he had settled expectation at that point that he wouldn't be searched without reasonable suspicion the search conditions said nothing about taking his private information then storing it forever even after his term of supervised release was over and my reading of the statute says that the only way you can get this is expunged if you can demonstrate your conviction was reversed so i think that's entirely different from the expectation that he actually had and then finally i think when the first words out of this to raise these mouth on the issue of the second step the land route was the quote justice story and again just a story one of the formulations i