Lead Opinion
The four plaintiffs — all felons serving prison terms at Wisconsin’s Supermax penitentiary — 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 plaintiffs contend that taking samples of their DNA pursuant to the law is an unconstitutional search and seizure in violation of the Fourth Amendment of the United States Constitution. The district court dismissed the complaint under 28 U.S.C. § 1915A, and today we resolve the plaintiffs’ appeal.
Except for identical twins, no two people have the same DNA. See Thomas M. Fleming, Annotation, “Admissibility of DNA Identification Evidence,”
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 feloniеs 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 dissemination of information obtained under the statute. The law also provides that if an individual’s conviction or adjudication 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,”
Although the taking of a DNA sample is clearly a search, the Fourth Amend
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,
Courts uphold thеse DNA collection statutes because the government interest in obtaining reliable DNA identification evidence for storage in a database and possible use in solving past and future crimes outweighs the limited privacy 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 sеizure 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,
In Shelton v. Gudmanson,
Like administrative searches, in which the warrant and probable cause showing are replaced by the requirement of showing a neutral plan for execution, a compelling 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), customs officers, National Treasury Employees Union v. Von Raab,489 U.S. 656 ,109 S.Ct. 1384 , 103*678 L.Ed.2d 685 (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 47J v. Acton,515 U.S. 646 ,115 S.Ct. 2386 ,132 L.Ed.2d 564 (1995). In determining the reasonableness of these searches, the Supreme Court has considered 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 promulgated by the state. Although the stаte’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 probationers’ homes, since it is not undertaken for the investigation of a specific crime.
In аrguing against the constitutionality of the Wisconsin law, the plaintiffs rely heavily on City of Indianapolis v. Edmond,
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 highways without a warrant and without probable cause. While checking the motorists for compliance with licеnse 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 checkpoint 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 lаwfully 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.”
Ferguson drew a distinction from other cases upholding warrantless and suspicion-less drug tests of employees and students under the “special needs” doctrine.
In the previous four cases, there was no misunderstanding about the purpose of*679 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 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 рarties. 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.
In contrast, the plaintiffs here had no misunderstanding about the purpose of the DNA test or the potеntial 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 impediments to collecting DNA samples from them pursuant to the Wisconsin law. The Wisconsin law withstands constitutional 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.
Concurrence Opinion
concurring.
While joining the court’s opinion without reservation, I offer some additional 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 proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer,
Persons on conditional release — parole, probation, supervised release, and the like — are the second category. They 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,
Felons whose terms have expired are the third category. Established criminality may be thе 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,
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
This appeal does not present the question whether DNA could be collected forcibly from thе general population, and 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.