Green, Norman C. v. Berge, Gerald A. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-4080, 01-4081 & 02-1346
NORMAN C. GREEN, JR., DONALD LEE,
GLENN TURNER, and DENNIS E. JONES-EL,
Plaintiffs-Appellants,
v.
GERALD A. BERGE and JAMES E. DOYLE,
ATTORNEY GENERAL,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 01-C-314—Barbara B. Crabb, Chief Judge.
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ARGUED NOVEMBER 4, 2003—DECIDED JANUARY 9, 2004
____________
Before EASTERBROOK, ROVNER, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. The four plaintiffs—all felons
serving prison terms at Wisconsin’s Supermax peniten-
tiary—filed this suit challenging a Wisconsin law which
compels them to submit a deoxyribonucleic acid (DNA)
sample for analysis and storage in a data bank. The plain-
tiffs contend that taking samples of their DNA pursuant to
the law is an unconstitutional search and seizure in vio-
lation of the Fourth Amendment of the United States
2 Nos. 01-4080, 01-4081 & 02-1346
Constitution. The district court dismissed the complaint
under 28 U.S.C. § 1915A, and today we resolve the plain-
tiffs’ appeal.
Except for identical twins, no two people have the same
DNA. See Thomas M. Fleming, Annotation, “Admissibility
of DNA Identification Evidence,” 84 A.L.R. 4th 313 at § 2(b)
(1991). In addition, an individual’s DNA is the same in
every nucleated cell in his body. Thus, a DNA analysis
makes the identification of a specific person “to the practical
exclusion of all others.” Id.
The Wisconsin law, § 165.76 et seq., was passed in 1993.
In its original form, only prisoners convicted of certain
offenses were required to give DNA samples for analysis. In
1999, the law was amended to require that all persons
convicted of felonies in Wisconsin (and those who were in
prison at the time) provide DNA samples for analysis and
storage in the state’s data bank.
The statutory scheme provides standards for laboratory
testing of the DNA samples. It contains a confidentiality
provision, and it provides penalties for the unlawful dis-
semination of information obtained under the statute. The
law also provides that if an individual’s conviction or ad-
judication has been reversed, set aside, or vacated, the
State’s Crime Laboratory (where the data is held) must
“purge all records and identifiable information in the data
bank pertaining to the person and destroy all samples from
the person.”
All 50 states and the federal government have
adopted DNA collection and data bank storage statutes
that, although not identical, are similar to the one in
Wisconsin. See Robin Cheryl Miller, Annotation, “Validity,
Construction, and Operation of State DNA Database
Statutes,” 76 A.L.R. 5th 239 (2000). Challenges to these
statutes as a whole and to their subparts have almost
uniformly been unsuccessful. Thus, the plaintiffs in this
Nos. 01-4080, 01-4081 & 02-1346 3
suit face a decidedly uphill struggle on their one claim that
their constitutional rights were violated when DNA was
extracted from them in the absence of a warrant, probable
cause, or an individualized and reasonable suspicion to
believe they committed a crime.
Although the taking of a DNA sample is clearly a search,
the Fourth Amendment does not proscribe all searches, only
those that are unreasonable. In some instances where a
search is not made pursuant to a warrant supported by
probable cause, it may nonetheless be reasonable if it falls
within an exception to the warrant requirement and is
supported by “some quantum of individualized suspicion.”
United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96
S. Ct. 3074, 49 L. Ed. 2d 1116 (1976). But even individual-
ized suspicion is not always necessary to support a finding
that a search is reasonable. See id. at 560-61; see also
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602,
624 (1989) (“individualized suspicion is not a constitutional
floor, below which a search must be presumed unreason-
able”); Nat’l Treasury Employees Union v. Von Raab, 489
U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989)
(“neither a warrant nor probable cause, nor, indeed, any
measure of individualized suspicion, is an indispensable
component of reasonableness in every circumstance”).
Although the United States Supreme Court has yet to
address the validity of DNA collection statutes under the
Fourth Amendment, as we just noted, state and federal
courts that have are almost unanimous in holding that
these statutes do not violate the Fourth Amendment. See
cases cited in the persuasive opinion of Magistrate Judge
Gorenstein in Nicholas v. Goord, 2003 WL 256774 (S.D.N.Y.
2003). But see United States v. Kincade, 345 F.3d 1095 (9th
Cir. 2003) (holding that forced blood extractions from
federal parolees pursuant to the federal DNA Analysis
Backlog Elimination Act violates the Fourth Amendment in
the absence of individualized suspicion).
4 Nos. 01-4080, 01-4081 & 02-1346
Courts uphold these DNA collection statutes because the
government interest in obtaining reliable DNA identifica-
tion evidence for storage in a database and possible use in
solving past and future crimes outweighs the limited pri-
vacy interests that prisoners retain. Also, courts generally
conclude that the collection of biological samples is only a
minimal intrusion on one’s personal physical integrity.
These courts find that the government has a special need in
obtaining identity DNA samples. The Tenth Circuit Court
of Appeals recently summarized the “special need” met by
the federal DNA Act:
The DNA Act, while implicating the Fourth
Amendment, is a reasonable search and seizure
under the special needs exception to the Fourth
Amendment’s warrant requirement because the desire
to build a DNA database goes beyond the ordinary law
enforcement need.
United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.
2003).
In Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis.
1996), Judge (now Chief Judge) Crabb succinctly summa-
rized the “special needs” line of cases that permit warrant-
less searches without individualized suspicion in a DNA
collection case:
Like administrative searches, in which the warrant and
probable cause showing are replaced by the require-
ment of showing a neutral plan for execution, a compel-
ling governmental need, the absence of less restrictive
alternatives and reduced privacy rights, see Camara v.
Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18
L. Ed. 2d 930 (1967), special needs searches adopt a
balancing of interests approach. Special needs searches
have been held to include drug testing of railway
executives, Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989),
Nos. 01-4080, 01-4081 & 02-1346 5
customs officers, National Treasury Employees Union v.
Von Raab, 489 U.S. 656 (1989), probationers’ homes,
Griffin, 483 U.S. at 868, 107 S.Ct. at 3165-66, and high
school students participating in athletics, Vernonia
School District 47 v. Acton, ___ U.S. ___, 115 S. Ct. 2386,
132 L. Ed. 2d 564 (1995). In determining the reasonable-
ness of these searches, the Supreme Court has consid-
ered the governmental interest involved, the nature of
the intrusion, the privacy expectations of the object of
the search and, to some extent, the manner in which
the search is carried out. In Griffin, 483 U.S. at 868,
107 S.Ct. At 3165-66, for example, the Court noted that
the warrantless search of the probationer’s home had
been carried out pursuant to valid regulations promul-
gated by the state. Although the state’s DNA testing of
inmates is ultimately for a law enforcement goal, it
seems to fit within the special needs analysis the Court
has developed for drug testing and searches of probation-
ers’ homes, since it is not undertaken for the investiga-
tion of a specific crime.
934 F. Supp. at 1050-51. We agree with and adopt the views
expressed by Chief Judge Crabb.
In arguing against the constitutionality of the Wisconsin
law, the plaintiffs rely heavily on City of Indianapolis v.
Edmond, 531 U.S. 32 (2000), and Ferguson v. City of
Charleston, 532 U.S. 67 (2001). They insist that the com-
bined impact of these cases undermines all of the decisions
upholding various DNA statutes because they can no longer
be viewed as reasonable under the Fourth Amendment if
their primary purpose is to assist law enforcement. We
disagree.
In City of Indianapolis v. Edmond, the city instituted a
motor vehicle checkpoint program whose primary purpose
was interdicting illegal narcotics trafficking. The program
allowed police to randomly stop motorists on public high-
6 Nos. 01-4080, 01-4081 & 02-1346
ways without a warrant and without probable cause. While
checking the motorists for compliance with license and
registration requirements (as well as intoxication), police
used a drug-sniffing dog in hopes of finding evidence of
narcotics possession on the driver or in the car.
An important distinction between our case and Edmond
is that the primary purpose of the Indianapolis check-
point program was to see if a driver was then and there
engaged in illegal drug activity. The primary purpose of the
Wisconsin DNA law, on the other hand, is not to search for
“evidence” of criminal wrongdoing. Its purpose is to obtain
reliable proof of a felon’s identity. Edmond says much about
indiscriminate motor vehicle roadblocks and checkpoints
but nothing about safe, nondiscriminatory collection of DNA
samples from lawfully incarcerated felons.
Ferguson also provides no help for our plaintiffs. The
issue there was whether the state’s “interest in using the
threat of criminal sanctions to deter pregnant women from
using cocaine can justify a departure from the general rule
that an official nonconsensual search is unconstitutional if
not authorized by a valid warrant.” 532 U.S. at 70. The case
involved a state hospital program whereby staff, without
the consent of its patients, performed drug scans of the
urine of pregnant women for the purpose of detecting the
presence of cocaine for possible criminal prosecution. Pos-
itive test results were reported to police.
Ferguson drew a distinction from other cases upholding
warrantless and suspicionless drug tests of employees and
students under the “special needs” doctrine.
In the previous four cases, there was no misunderstand-
ing about the purpose of the test or the potential use of
the test results, and there were protections against the
dissemination of the results to third parties. The use of
an adverse test result to disqualify one from eligibility
Nos. 01-4080, 01-4081 & 02-1346 7
for a particular benefit, such as a promotion or an
opportunity to participate in an extracurricular activity,
involves a less serious intrusion on privacy than the
unauthorized dissemination of such results to third
parties. The reasonable expectation of privacy enjoyed
by the typical patient undergoing diagnostic tests in a
hospital is that the results of those tests will not be
shared with nonmedical personnel without her consent.
532 U.S. at 78.
In contrast, the plaintiffs here had no misunderstanding
about the purpose of the DNA test or the potential use of
the test results. There are built-in statutory proscriptions
against the unauthorized dissemination of test results to
third parties. The intrusion on the plaintiffs’ limited privacy
interest is far less than that on unsuspecting pregnant
women in a hospital but otherwise free of state custody.
Wisconsin’s DNA collection statute is, we think, narrowly
drawn, and it serves an important state interest. Those
inmates subject to testing because they are in custody, are
already “seized,” and given that DNA is the most reliable
evidence of identification—stronger even than fingerprints
or photographs—we see no Fourth Amendment impedi-
ments to collecting DNA samples from them pursuant to the
Wisconsin law. The Wisconsin law withstands constitu-
tional attack under the firmly entrenched “special needs”
doctrine.
Because we have never addressed this issue, and the
plaintiffs’ appeal for that reason is not frivolous, we decline
to add an additional strike to their record pursuant to the
Prison Litigation Reform Act. A strike, however, was
appropriately recorded by the district court as the plaintiffs’
complaint did not state a claim for which relief could be
granted.
The judgment of the district court is AFFIRMED.
8 Nos. 01-4080, 01-4081 & 02-1346
EASTERBROOK, Circuit Judge, concurring. While joining
the court’s opinion without reservation, I offer some addi-
tional observations.
Courts that have dealt with constitutional challenges to
DNA-collection statutes frequently have lumped together
all persons subject to these laws. Yet there are at least four
major categories, potentially subject to differing legal
analysis.
Prisoners make up the first category. Their privacy
interests are extinguished by the judgments placing them
in custody. As a result, “the Fourth Amendment proscrip-
tion against unreasonable searches does not apply within
the confines of the prison cell.” Hudson v. Palmer, 468 U.S.
517, 526 (1984). See also, e.g., Johnson v. Phelan, 69 F.3d
144 (7th Cir. 1995). Testing prisoners’ blood, urine, saliva,
or hair for drugs is routine and does not require individual
suspicion. DNA is present in all living cells, so it may be
obtained from any of the blood or other samples regularly
collected from prisoners. Indeed, prisons may conduct
body-cavity searches without suspicion, see Bell v. Wolfish,
441 U.S. 520 (1979), though nothing of the kind would be
allowed for free persons. Collecting DNA is much less
intrusive. Prisons, moreover, have a constitutional duty to
attend to inmates’ medical needs, and the discharge of this
duty requires them to learn details about the inmates’
medical conditions. That will entail the drawing of blood
(how else could the prison learn whether an inmate is
diabetic?), and like other specimens the inmates’ blood may
be put to multiple uses, including preservation of DNA, for
the fourth amendment does not control how properly
collected information is deployed. Use of DNA is in this
respect no different from use of a fingerprint; only the
method of obtaining the information differs, and for prison-
ers that is a distinction without importance.
Persons on conditional release—parole, probation, super-
vised release, and the like—are the second category. They
Nos. 01-4080, 01-4081 & 02-1346 9
have acquired additional liberty but remain subject to
substantial controls. People who object to the conditions of
release before the end of their sentences may say no and
remain in prison; if they say yes, they have consented to the
conditions. See United States v. Cranley, No. 03-1908 (7th
Cir. Nov. 19, 2003). (Society may restore a felon’s freedom
in increments; it does not face an all-or-none choice.) One
common condition of release is submission to tests for
drugs, without the need for person-specific suspicion. DNA
may be extracted from samples obtained through these tests
without any incremental invasion of privacy. And if such an
incremental invasion is required: well, it is beyond dispute
that conditions of release related to enforcing the criminal
laws are valid, because refraining from new crime is one
vital condition of parole and like states. Thus parolees may
be required to submit to searches of their homes without
probable cause, see Griffin v. Wisconsin, 483 U.S. 868
(1987); United States v. Knights, 534 U.S. 112 (2001), to
report regularly to government offices to give accounts of
their activities, to get approval for new employment or
living arrangements, and so on. DNA collection is less
invasive than a search of one’s home, and as information
from DNA may be very helpful in solving crimes (and thus
enforcing a condition of release), there is no problem under
the fourth amendment.
Felons whose terms have expired are the third category.
Established criminality may be the basis of legal obligations
that differ from those of the general population. “A broad
range of choices that might infringe constitutional rights in
free society fall within the expected conditions . . . of those
who have suffered a lawful conviction.” McKune v. Lile, 536
U.S. 24, 36 (2002). One need only think of Megan’s Law and
its variations across the nation. See Connecticut Depart-
ment of Public Safety v. Doe, 538 U.S. 1 (2003). Felons
likewise are subject to limits on ownership of weapons and
participation in certain occupations (including law). Greater
10 Nos. 01-4080, 01-4081 & 02-1346
post-release restrictions on those with a known criminal
propensity make it possible to curtail the time felons must
linger in prison. Collecting felons’ DNA, like collecting their
fingerprints, handwriting exemplars, and other information
that may help solve future crimes (and thus improve the
deterrent force of the criminal sanction) is rationally related
to the criminal conviction. (That collection of Felon A’s DNA
may help Accused B show his innocence of a charge is a
benefit into the bargain.)
Those who have never been convicted of a felony are
the last distinct category. What is “reasonable” under the
fourth amendment for a person on conditional release, or a
felon, may be unreasonable for the general population. Just
as parolees’ homes may be searched without a warrant or
probable cause, while both are required to search a free
person’s home, so it may be that collection of DNA samples
from the general population would require person-specific
cause—or at least a “special need,” whatever the meaning
of that phrase in recent decisions turns out to be. See
Indianapolis v. Edmond, 531 U.S. 32 (2000); Ferguson v.
City of Charleston, 532 U.S. 67 (2001). The majority in
United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003),
which held that the DNA Analysis Backlog Elimination Act
of 2000, 42 U.S.C. §14135a, violates the fourth amendment,
made a fundamental error when it applied the “special
need” approach of Edmond and Ferguson to persons on
supervised release from criminal sentences that have yet to
expire. That confuses the fourth category with the second.
Knights, which held that conditions of supervised release
may be enforced without regard to whether they would be
“reasonable” as applied to the general population, was
issued after Edmond and Ferguson; the Justices evidently
perceive that these decisions cover different domains.
This appeal does not present the question whether DNA
could be collected forcibly from the general population, and
Nos. 01-4080, 01-4081 & 02-1346 11
I understand the court’s reference to Edmond and Ferguson
to mean no more than that these decisions are compatible
with collecting and preserving DNA from persons in the
first two categories, and likely from those in the third.
There will be time enough to address the fourth if and when
a more general statute about the collection and use of
medical information should be enacted.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-9-04