Involuntary Drug Testing, Trials, and Screening Programs as Violations of the Fourth Amendment, 93 MINN. L. REV. 1201, 1203–05 (2018) [hereinafter Doe & Brown]. In recent years, the topic has also increasingly been the subject of scholarly commentary, as the Supreme Court’s decision in Chandler v. Miller indicates. See Chandler, 520 U.S. 305 (1997). As we approach this evolving field, our consideration starts with a key case that the State of Tennessee frequently cites in its appellate briefing and oral argument—the Supreme Court’s opinion in Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989). The decision in Skinner has particular salience for the case before us, as the court’s reasoning in that case is instructive for resolving this appeal and its many variants. The court began with the premise that all people have “an expectation of privacy in information relating to [their] physical . . . condition[s]—amounting to a ‘right of privacy.’” Id. at 617 (quoting Whalen v. Roe, 429 U.S. 589, 599–600 (1977)) (alterations in original). But the court then acknowledged that this privacy interest may be “subject to some minor intrusions.” Id. at 620. “A State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” Id. at 619 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). And “[p]robation officers are not like common policemen; they are functionaries of the courts who may lend their authority to the service of legitimate ends.” Id. at 622 (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)). This court, too, has recognized that probationers, unlike other citizens, are subject to a state-sponsored deprivation of their liberty. See Cantrell v. Kearney, 151 F. App’x 446, 450 (6th Cir. 2005) (noting that persons under a state-imposed disability of probation can have restrictions placed on their “freedom and liberty” (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987))). Under these circumstances, the Supreme Court in Skinner ultimately decided that the collection of a DNA sample from persons convicted of felonies and serving an institution-supervised term of probation did not violate the Fourth Amendment’s No. 14-5997 Kriesel v. Holder, et al. Page 7 prohibition on unreasonable searches and seizures because, according to the Court, the privacy invasion was “a minimal one” and the “State’s interests are substantial.” 489 U.S. at 624–25. The court also concluded that the intrusions imposed by the state were “reasonable in light of the legitimate non-punitive governmental interests served by the State’s program.” Id. at 632. While recognizing that probationers’ loss of privacy entailed a significant limitation on privacy, the court held that probationers and parolees were nevertheless “subject to restrictions that would be unacceptable for members of the general public.” Id. at 632. Several years later, the Supreme Court held in Samson v. California that a state program permitting DNA collection from persons arrested on suspicion of committing a felony violates the Fourth Amendment because “[a] non-consensual requirement for [DNA] sampling . . . imposes a significant, additional burden on an individual’s right to respect for his private life.” 547 U.S. 843, 852 (2006). But it is important to note that Samson was decided with little discussion of Skinner and its progeny, and even fewer mention of Skinner’s rationale. Id. at 849–53. Nevertheless, the Court’s opinion in Samson relied on the premise that the privacy intrusion in that case was significantly greater than the intrusion in Skinner, and that the Court’s conclusion in Skinner was therefore inapplicable in that case. Id. We have also recognized the important privacy interests that criminal arrestees and pretrial detainees have in retaining their DNA sample after conviction or acquittal even after an individual’s sentence has expired. See Doe & Brown, supra, at 1205. But, as the Supreme Court has emphasized, different aspects of the Fourth Amendment are implicated based on whether the search is pre- or post-conviction. Indeed, the Court has characterized the intrusion involved in drawing a blood sample or taking a DNA swab as “significantly less intrusive than an incision” or even the removal of a blood sample from a vein. See Skinner, 489 U.S. at 625; see also Skinner, 489 U.S. at 636 (Scalia, J., concurring in part and dissenting in part) (noting that the intrusion at issue in Skinner “is not particularly intrusive”); Bell v. Wolfish, 441 U.S. 520, 560 n.40 (1979) (“The Court in Wolfish recognized that there are cases in which the Fourth Amendment permits a No. 14-5997 Kriesel v. Holder, et al. Page 8 greater intrusion into an individual’s bodily integrity than occurs with other types of searches and seizures.”); Skinner, 489 U.S. at 627 (“[T]he intrusion occasioned by a blood test is significant, but it does not constitute an arrest.”). The Supreme Court has acknowledged the “strong preference” in the case of post-conviction searches for warrants issued by a judge rather than a state police officer and the “traditional presumption of unreasonableness” that attaches to search warrants. McDonald, 561 U.S. at 772. And while the Court has held that an exigent circumstance that is likely to exist in every case does not invalidate a warrantless search, Schmerber v. California, 384 U.S. 757, 770 (1966), it has also noted that “the permissibility of a warrantless search is not necessarily established by the fact that the person in question is lawfully arrested and taken into custody,” id. at 769 (quotation marks omitted). The Court has also recognized that the risk that police will use evidence obtained pursuant to an invalid warrant to extract blood from an arrestee is sufficiently acute to justify a requirement that law enforcement agencies issue “written policy statements barring such use of compelled blood samples.” Ferguson v. City of Charleston, 532 U.S. 67, 79 (2001). Against this backdrop, in the case at hand, we are faced with a situation in which DNA evidence was collected under a warrant issued by the state court. The fact that a probable cause determination was made by a state judge (rather than a neutral magistrate) is not dispositive of this case because our own precedent recognizes that the use of a warrant, issued by an officer and/or a judge, may implicate constitutional concerns, even if the affidavit used to obtain the warrant supplies sufficient probable cause to satisfy the warrant requirement. See, e.g., United States v. Williams, 612 F.3d 500, 506–09 (6th Cir. 2010). A state court’s warrant is also no exception from the warrant requirement because “the issuance of a warrant for blood sampling in the absence of exigent circumstances violates the Fourth Amendment.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008) (citing Schmerber, 384 U.S. at 771). Because this is a case of first impression in this circuit, and the precise question of whether a state-issued arrest warrant provides the exigent circumstance that justifies warrantless DNA collection has not been addressed in any other circuit, we must make an “Erie-guess” as to how the Fourth Circuit would No. 14-5997 Kriesel v. Holder, et al. Page 9 answer this question. F ED. R. C IV. P. 52(a)(1); Diversey Corp. v. Wieland–Smart, 997 F.2d 62, 64 (4th Cir. 1993). Given the unique nature of DNA collection and the significant privacy intrusion incurred when blood is drawn and a DNA sample is extracted, we are confident in concluding that a state-issued arrest warrant in these circumstances does not authorize a search under the Fourth Amendment. The Supreme Court’s rationale in Skinner, which the parties do not meaningfully dispute, that the government’s interests are substantial when the state is collecting evidence for use in a future probation violation proceeding, is no longer tenable in a world where government officials (probation and parole officers) are free to collect DNA from non-consenting citizens (probationers and parolees) on an unfettered