ROBERT ROE, Consolidated-Plaintiff,
THOMAS W. COBB, Plaintiff-Consolidated-Defendant-Appellant,
RAYMOND J. CERILLI, Plaintiff-Counter-Defendant-Appellant,
v
RONALD MARCOTTE, RONALD CORMIER, MICHAEL SANTESE, DONALD POPILLO, Consolidated-Defendants-Appellees,
v
ROBERT BOSCO, Defendant-Counter-Claimant,
LARRY R. MEACHUM, Commissioner, Official capacity; LEONARD BARBIERI, Warden, Official capacity; SCOTT HADLAK, Counselor, Official capacity; BETH HALLERAN; JOHN DOE, Official capacity; DEPARTMENT OF CORRECTION; JOHN J. ARMSTRONG; KENNETH J. KIRSCHNER, Defendants-Counter-Claimants-Appellees,
OFFICE OF ADULT PROBATION, Counter-Defendant-Appellee.
Docket No. 98-2790
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Argued: June 28, 1999
Decided: September 16, 1999
Appeal from a judgment of the United States District Court for the District of Connecticut (Squatrito, J.) that granted defendants' motion for partial summary judgment dismissing plaintiffs' constitutional challenges to a Connecticut statute that required all convicted sex offenders to submit a blood sample for analysis and inclusion in a DNA data bank.
Affirmed.
PETER L. COSTAS, Pepe & Hazard LLP, Hartford, CT, for Appellant Thomas W. Cobb.
RAYMOND J. CERILLI, Cheshire, CT, Appellant, Pro se.
TERRENCE M. O'NEILL, Assistant Attorney General, State of Connecticut, Hartford, CT (Richard Blumenthal, Attorney General for the State of Connecticut; Aaron S. Bayer, Deputy Attorney General, and Margaret Quilter Chapple, Assistant Attorney General, on the Brief), for Defendants-Counter-Claimants-Appellees Meachum, Barbieri, Hadlock, Halleran, Armstrong, Kirschner, and the State of Connecticut.
Before: KEARSE, STRAUB, and POOLER, Circuit Judges.
POOLER, Circuit Judge:
Plaintiffs, imprisoned upon their conviction of sexual offenses under Connecticut state law, challenge the constitutionality of Conn. Gen. Stat. § 54-102(g), which, among other things, requires all convicted sexual offenders who were incarcerated on the statute's effective date to submit a blood sample for analysis and inclusion in a DNA (deoxyribonucleic acid) data bank. Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Squatrito, J.) dismissing their challenges to the statute's constitutionality. They argue that the statute violates the Fourth Amendment's prohibition against unreasonable searches and seizures and the Fourteenth Amendment's guarantee of equal protection. We conclude that the statute is constitutional and affirm the judgment of the district court.
BACKGROUND
The underlying facts of this case are undisputed. Plaintiffs Thomas W. Cobb and Raymond J. Cerilli are inmates in the custody of the Connecticut Department of Correction. On January 9, 1990, a court sentenced Cobb to a 25-year term of imprisonment upon his conviction of two counts of second degree sexual assault in violation of Conn. Gen. Stat. ("C.G.S.") § 53a-71(a)(1) and three counts of risk of injury to a minor in violation of C.G.S. § 53-21 in connection with the repeated sexual assault of his minor step-daughter. Cerilli currently is serving a 53-year sentence following his conviction of, among other things, first degree sexual assault in violation of C.G.S. § 53a-70(a). Defendants are current or former officers or employees of the State of Connecticut Department of Correction and Office of Adult Probation.
In 1994, the Connecticut legislature adopted Public Act 94-246, which was codified as C.G.S. § 54-102g ("the statute"). The effective date of the statute is October 1, 1994. It provides, in part:
(a) Any person who (1) is convicted of a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b on or after October 1, 1994, and is sentenced to the custody of the Commissioner of Correction or (2) has been convicted of a violation of [the previously referenced sections] and on October 1, 1994, is in the custody of the Commissioner of Correction shall, prior to release from such custody, have a sample of his blood taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.
(b) Any person convicted of a violation of [the previously referenced sections] on or after October 1, 1994, who is not sentenced to a term of confinement shall, as a condition of such sentence, have a sample of his blood taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.
Trained medical personnel must take the blood sample, and the Connecticut state police forensic science laboratory must perform the analysis. See id. §§ 54-102h, 54-102i. The results of the testing must remain stored in a confidential data bank. See id. § 45-102i. However, "[t]he [anonymous] results of an analysis and comparison of the identification characteristics from two or more blood or other biological samples shall be made available directly to federal, state and local law enforcement officers upon request made in furtherance of an official investigation of any criminal offense." Id. § 54-102j(a). "Only when a sample or DNA profile supplied by the person making the request satisfactorily matches a profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated." Id. § 54-102j(b).
Plaintiffs are subject to the provisions of the statute because of their convictions of sex offenses specified under the statute and their continued incarceration on or after October 1, 1994. To date, both have refused defendants' request that they submit a blood sample for analysis and inclusion in the data bank. In light of plaintiffs' refusal, the Attorney General of the State of Connecticut has the authority pursuant to State of Connecticut Department of Correction Administrative Directive No. 9.3 to seek a court order compelling them to provide a DNA sample.
In April 1995 and December 1995 respectively, Cerilli and Cobb filed complaints challenging the validity of the statute and seeking to prevent defendants from forcibly taking their blood. The court appointed Attorney Peter L. Costas pro bono counsel for Cerilli in October 1995 and for Cobb in January 1996. Upon plaintiffs' motions, the district court consolidated the two cases on September 9, 1996.1 Thereafter, plaintiffs filed amended complaints alleging that the statute violated their federal constitutional rights in that it (1) constituted an ex post facto law; (2) violated their rights to due process and equal protection; (3) authorized an unreasonable search and seizure in violation of the Fourth Amendment; (4) inflicted cruel and unusual punishment in violation of the Eight Amendment; and (5) violated their right to privacy. Plaintiffs also alleged a claim under 42 U.S.C. § 1983 for deprivation of constitutional rights and sought redress for violations of various rights guaranteed by the Connecticut constitution. Plaintiffs sought compensatory and punitive damages, as well as an injunction preventing defendants' involuntary taking of their blood and a judgment declaring the statute unconstitutional. Defendants counterclaimed for a declaratory judgment upholding the statute's constitutionality and an injunction compelling plaintiffs to submit to the taking of a blood sample and allowing defendants to use reasonable force if necessary.
On cross-motions for summary judgment, the district court granted defendants' motion in part, dismissing all of plaintiffs' federal claims and declaring the statute constitutional, and denied plaintiffs' motion. The court dismissed plaintiffs' state law claims without prejudice to refiling in state court. The court later reopened and vacated its entry of summary judgment as to plaintiffs' Section 1983 claims.2 The district court then entered a partial judgment and certified the constitutionality issue for immediate appeal pursuant to 28 U.S.C. § 1292(b).3 Plaintiffs filed notices of appeal on August 29, 1998.
In July 1998, Attorney Costas moved for leave to withdraw as counsel to Cerilli, citing disagreements as to strategy and Cerilli's dissatisfaction with Costas' representation. The court granted Costas' motion to withdraw. Cerilli filed several motions in this Court for assignment of counsel, all of which we denied because Cerilli requested counsel to address issues not properly before the Court on appeal. In a May 28, 1999, order denying Cerilli's motion for assignment of counsel, we advised the parties that the appeal would proceed and argument would be scheduled despite Cerilli's failure to file a pro se brief by May 13, 1999, in compliance with a scheduling order. Costas perfected Cobb's appeal and appeared at oral argument. We now turn to Cobb's contentions.
DISCUSSION
Cobb does not seek to declare the entire DNA statute unconstitutional, but rather seeks to invalidate "only that portion which encompasses sexual offenders who were imprisoned on its effective date . . . whether or not their current imprisonment was predicated upon a sexual offense." Although he asserted numerous constitutional challenges below, Cobb raises only two on appeal: that the statute violates the Fourth Amendment's prohibition against unreasonable searches and seizures and that it violates the Equal Protection Clause of the Fourteenth Amendment. The Court reviews de novo the district court's grant of summary judgment. See Cronin v. Aetna Life Ins. Co.,
I. Fourth Amendment
Cobb argues that the statute violates the Fourth Amendment because it compels him to produce evidence that may be used in future criminal investigations merely because of his status as a convicted sex offender and without requiring a showing of probable cause or reasonable suspicion that he has committed a particular crime. Defendants respond that the statute withstands Fourth Amendment scrutiny because the intrusion it occasions is minimal and justified by a significant governmental interest.
Defendants do not dispute the well-established principle that "a 'compelled intrusio[n] into the body for blood to be analyzed' . . . must be deemed a Fourth Amendment search." Skinner v. Railway Labor Execs. Ass'n,
What is reasonable "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself," and the permissibility of the search is "judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. (internal quotation marks and citations omitted). The Supreme Court has stated:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Bell v. Wolfish,
In most criminal cases, courts strike the reasonableness balance in favor of the Warrant Clause of the Fourth Amendment; except in well-defined circumstances, a search is not reasonable unless it is carried out pursuant to a judicial warrant issued on probable cause. See Skinner,
However, the concept of probable cause is "peculiarly related to criminal investigations" in which a specific individual is the target of government suspicion; in these cases searches are carried out "solely for the purpose of investigating criminal conduct, . . . [and] the validity of the searches [is] therefore dependent on application of the probable-cause and warrant requirements." Colorado v. Bertine,
When the balance of interests precludes insistence on a showing of probable cause, we have usually required some quantum of individualized suspicion before concluding that a search is reasonable. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.
The Supreme Court has applied the so-called "special needs" exception outside the criminal investigatory context. In these cases, a significant governmental interest, such as the maintenance of institutional security, public safety, and order, must prevail over a minimal intrusion on an individual's privacy rights to justify a search on less than individualized suspicion. For example, the Court has employed this exception to uphold the constitutionality of searches and seizures designed to maintain order and security in hospitals, see O'Connor v. Ortega,
The "special needs" exception also applies to the prison setting. While convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement, the rights they retain are subject to restrictions dictated by concerns for institutional security, order, and discipline. In Bell,
As plaintiffs correctly note, the requirement in the statute before us that prisoners provide a DNA sample for a state and national data bank is not motivated by concerns for inmate safety and health, institutional order, or discipline. For this reason, none of the "special needs" cases involving prisons that defendants cite is precisely on point. Nevertheless, the statute may still be constitutional if defendants can show some other significant governmental interest in the form of "special needs" beyond normal law enforcement," even if those "special needs" are not tied directly to institutional concerns. In this regard, Griffin v. Wisconsin,
In Griffin, the Supreme Court reviewed a Wisconsin Department of Health and Social Services ("DHSS") regulation that permitted a warrantless search of a probationer's home if there existed "reasonable grounds" to believe that the probationer possessed contraband, including items he was prohibited from possessing under the conditions of his probation. See Id. at 870-71. The Court observed that "[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" and that "in certain circumstances government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet 'reasonable legislative or administrative standards.'" Id. at 873-74 (quoting Camara v. Municipal Court,
We conclude that a reasoned interpretation of the "special needs" doctrine supports the constitutionality of the DNA statute. In defense of the statute, defendants cite studies indicating a high rate of recidivism among sexual offenders. Moreover, DNA evidence is particularly useful in investigating sexual offenses and identifying the perpetrators because of the nature of the evidence left at the scenes of these crimes and the demonstrated reliability of DNA testing. Defendants argue that the existence of state and national DNA data banks will serve an important governmental interest in solving both past and future crimes. More importantly, they contend that the statute's requirement that imprisoned sexual offenders provide a DNA sample will deter these individuals from committing future offenses of a similar nature. Balanced against this significant interest is the drawing of a blood sample for testing, an intrusion that the Supreme Court has characterized as minimal. See Skinner,
Our holding comports with the conclusions reached by the three circuit courts of appeals that have thus far examined the constitutionality of nearly identical DNA statutes. See Boling v. Romer,
In Jones, the Court reviewed a Virginia statute that, insofar as is relevant here, required all convicted sex offenders who were incarcerated on the statute's effective date to provide a blood sample for DNA analysis and storage. See Jones,
We have not been made aware of any case . . . establishing a per se Fourth Amendment requirement of probable cause, or even a lesser degree of individualized suspicion, when government officials conduct a limited search for the purpose of ascertaining and recording the identity of a person who is lawfully confined to prison. This is not surprising when we consider that probable cause had already supplied the basis for bringing the person within the criminal justice system. With the person's loss of liberty upon arrest comes the loss of at least some, if not all, rights to personal privacy otherwise protected by the Fourth Amendment.
Id. at 306. The court noted that it found support for its holding in "the fact that the Supreme Court has not categorically required individualized suspicion in the case of every search which advances a law enforcement objective," alluding presumably to the "special needs" exception. Id. at 307 n.2. However, the court also stated explicitly that its holding did not rest on the "special needs" doctrine because it considered "cases which involve the Fourth Amendment rights of prison inmates to comprise a separate category of cases to which the usual per se requirement of probable cause does not apply." Id. The court went on to conclude that the governmental interest at stake - "preserving a permanent identification record of convicted felons for resolving past and future crimes" - outweighed the "slight intrusion" in giving a blood sample. Id. at 307.
Judge Murnaghan agreed that the Virginia statute was constitutional insofar as it required DNA samples from violent felons but dissented from the majority's view that the statute constitutionally could take DNA from non-violent offenders. In an opinion concurring as to the testing of violent felons, he criticized the majority for its "strikingly truncated view of the Fourth Amendment protections afforded to a convicted felon." Id. at 311 (Murnaghan, J., concurring in part and dissenting in part). Judge Murnaghan went on to state:
Prisoners most assuredly do give up specific aspects of their reasonable expectation of privacy because of practical concerns relating to living conditions, and because of the necessities involved in ensuring prison security. However, in the present case, appellants have not forfeited their expectation of privacy with respect to blood testing, and no practical penal concern justifies the departure involved in the DNA procedure. Accordingly, the Commonwealth's DNA testing procedure should be reviewed under the standard applied to a search of any individual when such a search is not based on individualized suspicion: the privacy interest of the prisoner in remaining free of bodily invasion should be balanced against the state interest in carrying out the search.
Id. at 312. Judge Murnaghan concluded that prisoners have no expectation of privacy in their cells and "lose the aspect of their right to privacy that protects them from routine searches." Id. at 312-13. He pointed out, however, that this diminished privacy expectation directly results from "practical considerations requiring additional authority on the part of prison officials to control potentially dangerous prison communities." Id. at 313. Because the state's DNA testing requirement was not justified by internal prison security needs, Judge Murnaghan believed that prisoners had a "reasonable expectation of privacy within [their] bod[ies]." Id. at 312. Although concurring in the ultimate conclusion that the statute was constitutional as to violent felons, Judge Murnaghan advocated a different test for evaluating prisoners' Fourth Amendment rights:
Justification for searches of these individuals must be based, as must all searches of citizens in a free society still clinging to disappearing Fourth Amendment protections, on a balancing of the privacy interest involved against the state interest in the search to determine which interest is more compelling. See Michigan Dep't of State Police v. Sitz,
Id. at 313. Because the record indicated that violent offenders posed a significant risk of recidivism, Judge Murnaghan agreed with the majority that DNA testing of violent offenders was constitutional. However, he would have held that the "extremely tenuous link connecting persons convicted of non-violent felonies to the commission of furture violent crime" rendered the statute unconstitutional as applied to non-violent offenders. Id. at 314.
Judge Murnaghan's analysis provides a more compelling rationale for upholding the DNA statute's constitutionality than does the Jones majority opinion. Clearly, the cases in which the Supreme Court has concluded that prisoners forfeit their Fourth Amendment rights upon incarceration deal with searches of their cells or their persons for reasons of safety and orderly administration of prison facilities, concerns not implicated here. Thus, for the reasons stated above, we join the circuits that have upheld the constitutionality of similar statutes but depart from the rationale adopted by those circuits and, as set forth above, premise our holding upon the "special needs" exception. See State v. Olivas,
II. Equal Protection
Cobb argues that the statute violates the Equal Protection Clause because it (1) impermissibly distinguishes between individuals convicted of crimes characterized as sexual offenses and those convicted of other violent offenses, (2) targets incarcerated sex offenders but not prior sex offenders who currently reside in the community, and (3) targets convicted sex offenders whether or not their current incarceration is for a sex offense. Because Cobb alleges a classification based on the nature of his offense, his challenge to the DNA statute is entitled to only "rational basis" and not "strict scrutiny" review. See Chapman v. United States,
CONCLUSION
For the reasons stated, we affirm the judgment of the district court.
Notes:
Notes
The court also granted plaintiffs' request that the action be consolidated with one brought by Robert Roe, who challenged only the community notification portion of the statute. Our decision in that case is reported as Roe v. Office of Adult Probation,
Concluding that the Section 1983 claims would require a hearing, the parties agreed to reserve this claim.
The court thereafter withdrew its Section 1292(b) certification and ordered entry of final judgment on plaintiffs' first eleven causes of action under Fed. R. Civ. P. 54(b). Pursuant to Rule 54(b), the court certified that there was "no just reason for delay" in entering a final judgment dismissing the claims challenging the constitutionality of the statute, thereby permitting an immediate appeal of that dismissal.