FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL BILL; BRYAN HANANIA;

MICHAEL MALPASS,

Plaintiffs-Appellants,

v.

WARREN BREWER; HEATHER 

POLOMBO,

Defendants-Appellees.

No. 13-15844

D.C. No.

2:12-cv-02613-

SRB

OPINION

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted

June 9, 2015—San Francisco, California

Filed August 31, 2015

Before: Barry G. Silverman, Ronald M. Gould,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz
2 BILL V. BREWER

SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal of an 

action brought by three Phoenix police officers who alleged 

that two other officers violated the Fourth and Fourteenth 

Amendments when, pursuant to a state court order, they 

obtained DNA samples from the plaintiffs to exclude them 

as contributors of DNA at a crime scene. 

The panel held that the superior court orders authorizing 

the collection of plaintiffs’ DNA satisfied the Warrant 

Clause of the Fourth Amendment. The panel further held 

that it was not unreasonable, under the circumstances, to ask 

sworn officers to provide saliva samples for the sole purpose 

of demonstrating that the DNA left at a crime scene was not 

the result of inadvertent contamination by on-duty public 

safety personnel.

COUNSEL

Paul J. Orfanedes, Michael Bekesha (argued), Judicial 

Watch, Inc., Washington, D.C., for Plaintiffs-Appellants.

Gary Verburg, City Attorney, Robert A. Hyde (argued), 

Assistant City Attorney, Office of the City Attorney, 

Phoenix, Arizona, for Defendants-Appellees.

 * This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.

 
BILL V. BREWER 3

OPINION

HURWITZ, Circuit Judge:

In this 42 U.S.C. § 1983 action, three Phoenix police 

officers allege that two other officers violated the Fourth and 

Fourteenth Amendments when, pursuant to a state court 

order, they obtained DNA samples from the plaintiffs to 

exclude them as contributors of DNA at a crime scene. The 

district court dismissed the complaint, and we affirm.

I.

A.

On October 18, 2010, Phoenix Police Sergeant Sean 

Drenth died from a gunshot wound to his head. His body 

was found in the northwest corner of an empty lot near the 

Arizona State Capitol; a shotgun was across his chest and a 

second weapon by his ankle. Sergeant Drenth’s patrol car 

was in the center of the lot, and his service weapon was 

found just beyond the south side of the lot. More than 300 

public safety personnel, the chief of police, and the mayor 

quickly converged on the scene. Roughly 100 people 

entered the area where Sergeant Drenth’s body was 

discovered, including the three plaintiffs, who were assigned 

to canine search teams.

The police investigators assigned to the case initially 

attempted to determine whether Sergeant Drenth’s death was 

a homicide staged to look like a suicide or a suicide staged 

to look like a homicide. Detective Warren Brewer led the 

investigation with the assistance of Detective Heather 

Polombo. That investigation revealed unknown male DNA 

profiles on Drenth’s patrol car and weapons. Over the 

ensuing months, Polombo received consent to collect DNA 

samples from more than 100 individuals who had entered the 

crime scene in order to eliminate them as contributors of the 
4 BILL V. BREWER

unknown DNA. Each of the approximately fifty Phoenix 

Police Department officers who entered the crime scene 

consented to give samples, with the exception of the three 

plaintiffs and two others.

Polombo met with the five non-consenting officers in 

April 2011. She told them that they had been excluded as 

suspects in any crime because “their portable radios and the 

mobile digital communicators in their vehicles confirmed 

their locations on the night of” Drenth’s death, and she again 

requested DNA samples to exclude them as contributors of 

the questioned DNA. Polombo provided each officer with a 

police department “DNA Collection Fact Sheet – Drenth 

Investigation” (the “DNA Memo”), explaining that their 

DNA samples would be used only for this limited purpose, 

and would “not be entered into [the Combined DNA Index 

System (“CODIS”)]”1 or used to identify DNA found at 

future crime scenes.

B.

The five officers nonetheless continued to refuse to 

provide DNA samples. Brewer and Polombo then sought 

court orders pursuant to Arizona Revised Statutes § 13-

39052 to obtain buccal swabs—a Q-tip swab along the inside 

 1 CODIS is a “centrally-managed database linking DNA profiles culled 

from federal, state, and territorial DNA collection programs, as well as 

profiles drawn from crime-scene evidence, unidentified remains, and 

genetic samples voluntarily provided by relatives of missing persons.” 

United States v. Kincade, 379 F.3d 813, 819 (9th Cir. 2004) (en banc).

 2 Arizona Revised Statutes § 13-3905 provides, in relevant part:

 
BILL V. BREWER 5

A. A peace officer who is engaged, within the scope 

of the officer’s authority, in the investigation of a 

felony may make written application upon oath or 

affirmation to a magistrate for an order authorizing the 

temporary detention, for the purpose of obtaining 

evidence of identifying physical characteristics, of an 

identified or particularly described individual residing 

in or found in the jurisdiction over which the 

magistrate presides. The order shall require the 

presence of the identified or particularly described 

individual at such time and place as the court shall 

direct for obtaining the identifying physical 

characteristic evidence. The magistrate may issue the 

order on a showing of all of the following:

1. Reasonable cause for belief that a felony has been 

committed.

2. Procurement of evidence of identifying physical 

characteristics from an identified or particularly 

described individual may contribute to the 

identification of the individual who committed such 

offense.

3. The evidence cannot otherwise be obtained by the 

investigating officer from either the law enforcement 

agency employing the affiant or the department of 

public safety.

***

G. For the purposes of this section, “identifying 

physical characteristics” includes, but is not limited to, 

the fingerprints, palm prints, footprints, 

measurements, handwriting, handprinting, sound of 

voice, blood samples, urine samples, saliva samples, 

hair samples, comparative personal appearance or 

photographs of an individual.

 
6 BILL V. BREWER

of the five officers’ cheeks—for DNA testing. In support of 

the applications for the orders, Brewer submitted affidavits 

describing the five officers’ presence at the crime scene, 

noting their “potential to [have] inadvertently deposit[ed] 

their DNA on the collected evidence,” and avowing that the 

DNA samples “may contribute to the identification of the 

individual who committed” the homicide.

A superior court judge issued the orders, and buccal 

swabs were taken from the five officers. The samples were 

analyzed and the results included in investigative reports 

along with the results of analysis of swabs taken from others 

at the scene. The swabs are currently impounded by the 

Department pursuant to Arizona Revised Statutes § 13-

4221.3 The Department has repeatedly stated that none of 

the officers is suspected of having committed any crime.

C.

On December 7, 2012, plaintiffs filed this 42 U.S.C.

§ 1983 action, claiming that Brewer and Polombo violated 

the Fourth Amendment by obtaining, analyzing, and 

retaining plaintiffs’ DNA. The complaint sought 

(1) nominal damages of $1.00 for each plaintiff; (2) a 

declaration that the seizure of the DNA was unlawful; and 

 3 Arizona Revised Statutes § 13-4221(A) provides that DNA samples 

collected in connection with a homicide must be retained for “[t]he 

period of time that a person who was convicted” of the offense “remains 

incarcerated for that offense or until the completion of the person’s 

supervised release,” or, for cold cases, “fifty-five years or until a person 

is convicted of the crime and remains incarcerated or under supervised 

release for that offense.” The statute gives government entities 

“discretion concerning the conditions under which biological evidence 

is retained, preserved or transferred among different entities.” Id. § 13-

4221(F).

 
BILL V. BREWER 7

(3) injunctive relief precluding defendants “from continuing 

to maintain possession, custody, or control” of the DNA 

samples and ordering them to destroy “samples and any 

analyses and reports of Plaintiffs’ DNA samples.”

The district court dismissed the complaint for failure to 

state a claim. This appeal timely followed. We have 

jurisdiction under 28 U.S.C. § 1291. “We review de novo

the district court’s granting of a motion to dismiss for failure 

to state a claim,” Weiland v. Am. Airlines, Inc., 778 F.3d 

1112, 1114 (9th Cir. 2015), and “accept as true the factual 

allegations in [the] complaint,” Ashcroft v. al-Kidd, 131 S. 

Ct. 2074, 2079 (2011). “We may affirm the district court on 

any basis supported by the record.” Gonzalez v. Planned

Parenthood of L.A., 759 F.3d 1112, 1114 n.1 (9th Cir. 2014).

II.

The Supreme Court has held that “using a buccal swab 

on the inner tissues of a person’s cheek in order to obtain 

DNA samples is a search” under the Fourth Amendment. 

Maryland v. King, 133 S. Ct. 1958, 1968-69 (2013); see also 

Missouri v. McNeely, 133 S. Ct. 1552, 1565 (2013) (“[A]ny 

compelled intrusion into the human body implicates 

significant, constitutionally protected privacy interests.”). 

Thus, the issue before us is whether the defendants 

“respected relevant Fourth Amendment standards” in 

collecting plaintiffs’ DNA. Schmerber v. California, 384 

U.S. 757, 768 (1966). Plaintiffs’ briefs argue that because 

defendants “fail[ed] to obtain search warrants before taking 

DNA samples” and had no “individualized suspicion that 

Plaintiffs had committed criminal wrongdoing,” collection 

of their DNA violated the Fourth Amendment because it 

does not fall within any of the “established exceptions” to 
8 BILL V. BREWER

the warrant requirement.4 We disagree. The superior court 

orders authorizing the collection of the DNA samples fully 

satisfied the warrant requirement of the Fourth Amendment.

A.

“Ordinarily, the reasonableness of a search depends on 

governmental compliance with the Warrant Clause, which 

requires authorities to demonstrate probable cause to a 

neutral magistrate and thereby convince him to provide 

formal authorization to proceed with a search by issuance of 

a particularized warrant.” United States v. Kincade, 

379 F.3d 813, 822 (9th Cir. 2004) (en banc). The orders 

issued by the superior court pursuant to Arizona Revised 

Statutes § 13-3905 were not formally denominated as search 

warrants. Moreover, the state statute requires a showing of 

only reasonable cause “for belief that a felony has been 

committed” to support a detention order, id., § 13-

3905(A)(1)—something the Arizona Supreme Court has 

defined as “less than probable cause,” State v. Rodriguez, 

921 P.2d 643, 651 (Ariz. 1996)—and specifies no particular 

quantum of suspicion that the evidence sought “may 

contribute to the identification of the individual who 

committed such offense,” § 13-3905(A)(2).

However, when considering Fourth Amendment 

challenges to evidence seized pursuant to § 13-3905 orders, 

the Arizona Supreme Court has described such orders as 

 4 On appeal, plaintiffs have not developed the arguments made below 

that continued possession of their DNA violates the Fourth Amendment 

and that the defendants omitted material information from the 

applications to the superior court. Thus, these arguments are forfeited. 

See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 

(9th Cir. 2008) (declining to address argument because it was not argued 

“with any specificity” on appeal).

 
BILL V. BREWER 9

“warrants.” State v. Jones, 49 P.3d 273, 280 (Ariz. 2002). 

That court has also stated that “probable cause is the standard 

that must be met” for a § 13-3905 order involving a “bodily 

invasion” constituting “a search under the Fourth 

Amendment.” Id. at 281; see also State v. Wedding, 

831 P.2d 398, 404 (Ariz. Ct. App. 1992) (“The affidavit 

[supporting a § 13-3905 order for saliva and blood samples] 

clearly supports the . . . finding that there was probable cause 

to search and seize the defendant at the time of the 

detention.”). Thus, we analyze the § 13-3905 orders in this 

case, notwithstanding the more limited language of the 

statute, for compliance with the Warrant Clause of the 

Fourth Amendment.

The “precise and clear” words of the Fourth Amendment 

“require only three things” for a valid search warrant:

First, warrants must be issued by neutral, 

disinterested magistrates. Second, those 

seeking the warrant must demonstrate to the 

magistrate their probable cause to believe 

that the evidence sought will aid in a 

particular apprehension or conviction for a 

particular offense. Finally, warrants must 

particularly describe the things to be seized, 

as well as the place to be searched.

Dalia v. United States, 441 U.S. 238, 255 (1979) (citations 

and internal quotation marks omitted). There can be no 

contest that the orders here satisfied the first and third 

requirements: they were issued by a superior court judge and 

described a “saliva sample” to be seized “by mouth swab” 

from the person of the plaintiffs. Whether the orders satisfy 

the Warrant Clause therefore turns on whether the submitted 

affidavits demonstrated probable cause to believe that the 
10 BILL V. BREWER

evidence sought would aid in an apprehension or conviction 

for a particular offense.

To be sure, the orders here did not seek to obtain 

evidence that the plaintiffs committed a crime. But contrary 

to plaintiffs’ intimations, “[t]he critical element in a 

reasonable search is not that the owner of the property,” or 

in this case the person, to be searched “is suspected of 

crime.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 

(1978). Rather, “probable cause to search . . . concerns the 

connection of the items sought with crime and the present 

location of the items.” United States v. O’Connor, 658 F.2d 

688, 693 n.7 (9th Cir. 1981). Of course, law enforcement 

must demonstrate “a nexus . . . between the item to be seized 

and criminal behavior.” Warden, Md. Penitentiary v. 

Hayden, 387 U.S. 294, 307 (1967). “[I]n the case of ‘mere 

evidence,’ probable cause” for such a nexus “must be 

examined in terms of cause to believe that the evidence 

sought will aid in a particular apprehension or conviction.” 

Id.

These constitutional requirements were satisfied here. 

The superior court expressly found “probable cause to 

believe that the crime of Homicide had been committed.” 

Plaintiffs wisely do not challenge this finding; indeed, the 

affidavits detailed the date, time, victim, and crime scene of 

the highly publicized death being investigated. The 

affidavits also explained that DNA samples were sought 

from all public safety personnel who entered the crime scene 

to exclude them as depositors of the questioned DNA. It 

cannot be meaningfully debated that there was probable 

cause to believe the evidence sought could be found in the 

place to be searched (inside of plaintiffs’ mouths). See 

Illinois v. Gates, 462 U.S. 213, 230 (1983) (explaining that 

probable cause is a “commonsense, practical question”).
BILL V. BREWER 11

Moreover, the affidavits plainly demonstrated “a nexus” 

between the crime under investigation and the evidence 

sought. Warden, 387 U.S. at 307. They stated that 

“[a]pproximately 50 Phoenix Police Officers entered the 

scene,” along with numerous other public safety personnel; 

that all of these public safety personnel except for plaintiffs 

and two other Phoenix police officers (identified by name 

and badge number) had already provided samples; and that 

such samples would be “analyzed for DNA and compared to 

other evidence in th[e] investigation” “[i]n attempts to 

identify the unknown DNA profile/s” found at the scene, and 

thus “may contribute to the identification of the individual 

who committed the felony offense described.”

That plaintiffs had themselves already been excluded as 

suspects does not undermine the nexus between the evidence 

desired and the crime investigated; excluding public safety 

personnel as the source of DNA would plainly “aid in” the 

conviction of an eventual criminal defendant, by negating 

any contention at trial that police had contaminated the 

relevant evidence. Messerschmidt v. Millender, 132 S. Ct. 

1235, 1248 n.7 (2012) (emphasis and citation omitted); see 

also In re Morgenthau, 457 A.2d 472, 473-76 (N.J. Super. 

Ct. App. Div. 1983) (per curiam) (affirming order 

compelling collection of “blood and hair samples and finger 

and palm prints” from individuals who were “not suspects” 

in a homicide investigation because these “physical 

exemplars constituted material evidence relevant to [the 

suspect’s] guilt” and the orders, while not denominated as 

warrants, “comport[ed] with all the requisites of a search 

warrant”). We therefore conclude that the superior court 

orders authorizing the collection of plaintiffs’ DNA satisfied 

the Warrant Clause of the Fourth Amendment. Given that 

conclusion, we need not address whether an exception to the 

warrant requirement would have applied in the absence of 

the orders.
12 BILL V. BREWER

B.

To be sure, “a search could be unreasonable, though 

conducted pursuant to an otherwise valid warrant, by 

intruding on personal privacy to an extent disproportionate 

to the likely benefits from obtaining fuller compliance with 

the law.” United States v. Torres, 751 F.2d 875, 883 (7th 

Cir. 1984). The Fourth Amendment thus also requires an 

analysis of “the extent of the intrusion on [plaintiffs’] 

privacy interests and on the State’s need for the evidence.” 

Winston v. Lee, 470 U.S. 753, 763 (1985); see also Spencer 

v. Roche, 659 F.3d 142, 146 (1st Cir. 2011) (applying 

reasonableness analysis to bodily search conducted pursuant 

to warrant). Because “‘intrusions into the human body’” 

implicate the “most personal and deep-rooted expectations 

of privacy,” the Fourth Amendment requires “a discerning 

inquiry into the facts and circumstances to determine 

whether the intrusion was justifiable.” Winston, 470 U.S. at 

760 (quoting Schmerber, 384 U.S. at 767-68).

But no undue intrusion occurred here. The Supreme 

Court has expressly held that buccal swabs are “brief and . . . 

minimal” physical intrusions “‘involv[ing] virtually no risk, 

trauma, or pain.’” King, 133 S. Ct. at 1979 (quoting 

Schmerber, 384 U.S. at 771). A buccal swab, like a 

breathalyzer test, does “not require piercing the skin and may 

be conducted safely outside a hospital environment and with 

a minimum of inconvenience or embarrassment.” Skinner v. 

Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 625 (1989).

Moreover, the reasonableness of a particular search 

“must be considered in the context of the person’s legitimate 

expectations of privacy.” King, 133 S. Ct. at 1978. 

Although “policemen do not abandon their constitutional 

rights upon induction into the department,” L.A. Police 

Protective League v. Gates, 907 F.2d 879, 886 (9th Cir. 
BILL V. BREWER 13

1990) (citation and internal quotation marks omitted), the 

government’s interest in the integrity of its police force “may 

justify some intrusions on the privacy of police officers 

which the fourth amendment would not otherwise tolerate,” 

Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 489 (9th 

Cir. 1986); see also Biehunik v. Felicetta, 441 F.2d 228, 231 

(2d Cir. 1971) (“The policeman’s employment relationship 

by its nature implies that in certain aspects of his affairs, he 

does not have the full privacy and liberty from police 

officials that he would otherwise enjoy.”). It was hardly 

unreasonable here to ask sworn officers to provide saliva 

samples for the sole purpose of demonstrating that DNA left 

at a crime scene was not the result of inadvertent 

contamination by on-duty public safety personnel.

And, although we share plaintiffs’ concerns over 

potential misuse of DNA samples to reveal private 

information about contributors, see King, 133 S. Ct. at 

1979-80, no such danger is realistically posed here. The 

DNA Memo expressly guarantees plaintiffs’ DNA samples 

“will be used for comparison to evidence in this report only” 

and “will not be used for any research type testing, including 

race, ethnicity or health,” “provided to any outside 

organization for those purposes,” “entered into the employee 

database,” or “entered into CODIS.”5 The plaintiffs have 

not alleged any plausible reason to believe that the Phoenix 

Police Department will not abide by these limitations, and 

the district court did not err in declining to speculate about 

possible future abuse.

 5 Because the complaint quoted extensively from the DNA Memo, it 

was incorporated by reference and we may “assume that its contents are 

true for purposes of a motion to dismiss under Rule 12(b)(6).” United 

States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

 
14 BILL V. BREWER

III.

We AFFIRM the judgment of the district court.