401 F.3d 1273 (11th Cir. 2005), 03-16527, Padgett v. Donald

Docket Nº:03-16527.
Citation:401 F.3d 1273
Party Name:Roy PADGETT, et al., Plaintiff, Paul N. Boulineau, John Burney, Plaintiffs-Appellants, v. James E. DONALD, Commissioner of Georgia Department of Corrections, Georgia Bureau of Investigation, and Georgia Department of Corrections, Defendants-Appellees.
Case Date:March 04, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1273

401 F.3d 1273 (11th Cir. 2005)

Roy PADGETT, et al., Plaintiff,

Paul N. Boulineau, John Burney, Plaintiffs-Appellants,


James E. DONALD, Commissioner of Georgia Department of Corrections, Georgia Bureau of Investigation, and Georgia Department of Corrections, Defendants-Appellees.

No. 03-16527.

United States Court of Appeals, Eleventh Circuit.

March 4, 2005

Page 1274

Randall Marc Hawkins (Court-Appointed), Paul R. Wellons, Kimberly J. Johnson, Jones Day, Atlanta, GA, for Plaintiffs-Appellants.

David E. Langford, State of GA Dept. of Law, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON and BIRCH, Circuit Judges, and ROYAL [*], District Judge.

BIRCH, Circuit Judge:

In a case of first impression for our circuit, we decide whether the United

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States and Georgia Constitutions permit the Georgia Department of Corrections to compel incarcerated felons to submit saliva samples for DNA profiling, pursuant to O.C.G.A. § 24-4-60. The district court granted summary judgment in favor of the Commissioner of the Georgia Department of Corrections, the Georgia Bureau of Investigation, and the Georgia Department of Corrections. Because we conclude that the statute does not violate the Fourth Amendment, the search and seizure provisions of the Georgia Constitution, or the felons' rights to privacy under the United States or Georgia Constitutions, we AFFIRM.


The material facts in this case are not in dispute. In 2000, the Georgia General Assembly amended O.C.G.A. § 24-4-60 ("the statute") to require convicted, incarcerated felons to provide a sample of their DNA to the Georgia Department of Corrections ("GDOC") for analysis and storage in a data bank maintained by the Georgia Bureau of Investigation ("GBI"). See O.C.G.A. § 24-4-60. 1 The DNA profiles can be released from the data bank "to federal, state, and local law enforcement officers upon a request made in furtherance of an official investigation of any criminal offense." O.C.G.A.§ 24-4-63(a). The statute applies to all persons convicted of a felony and incarcerated on or after 1 July 2000 and all felons incarcerated as of that date. O.C.G.A. § 24-4-60.

The statute allows the GDOC to obtain an incarcerated felon's DNA sample by taking blood, swabbing the inside of his mouth for saliva, or using any other noninvasive procedure. Id. In implementing the statute, the GDOC formulated policy dictating that members of the prison staff obtain the samples by swabbing the inside of felons' mouths for saliva. The GDOC then sends the swabs to the GBI for typing and placement in the DNA database. Inmates that refuse to submit to the procedure are subjected to disciplinary reports

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followed by hearings and possible disciplinary action. If any inmate still refuses to cooperate, the prison staff takes the sample by force.

Roy Padgett, a Georgia prison inmate, filed a pro se civil rights action challenging the constitutionality of the statute. Paul Boulineau and John Burney, prison inmates convicted of felonies prior to 1 July 2000, intervened, 2 and counsel was appointed. Padgett was later dismissed from the action and is not a party to this appeal.

In their Amended Complaint, Boulineau and Burney sought a declaratory judgment that the statute violated their constitutional rights and an injunction preventing the GDOC from taking their DNA without their consent. They claimed the statute (1) violated the search and seizure provisions of the United States and Georgia Constitutions; (2) violated the Fifth and Fourteenth Amendment because it is unreasonably vague; (3) deprived them of due process of law; (4) violated their rights to privacy under the United States and Georgia Constitutions; and (5) constituted an ex post facto law in violation of the United States and Georgia Constitutions. They named the GBI, the GDOC, and the Commissioner of the GDOC ("the Commissioner") as defendants.

On cross-motions for Summary Judgment, the district court granted the GBI, the GDOC, and the Commissioner's motion for Summary Judgment and denied Boulineau and Burney's motion. The district court held that Boulineau and Burney had abandoned their claims against the GBI and the GDOC. As for their search and seizure and right to privacy claims against the Commissioner, the claims they appeal here, the district court concluded that the statute did not authorize an unreasonable search or infringe their rights to privacy in violation of the United States or Georgia Constitutions. In evaluating Boulineau and Burney's search and seizure claims, the court applied a balancing test and held that Georgia's legitimate interest in creating a DNA data bank outweighed their diminished privacy interests. It rejected Boulineau and Burney's argument that Georgia could not take their DNA samples without a suspicion of individual wrongdoing absent a "special need" other than general law enforcement. As for their right to privacy claims, the district court held that the bodily intrusion caused by the statute is minimal in light of the other invasions prisoners endure by virtue of their incarceration. It further concluded that the state's interest in creating a DNA data bank outweighed any privacy rights that Boulineau and Burney have in their identities. On appeal, Boulineau and Burney argue that the district court erred in concluding that the warrantless extraction and analysis of their DNA under the statute (1) is a constitutional search under the United States and Georgia Constitutions; and (2) does not violate their rights to privacy. 3

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Prior to his scheduled release date, Burney moved for an injunction to prevent the collection, analysis, and storage of his DNA sample. The district court ordered Burney to provide a DNA sample but enjoined the Commissioner, the GDOC, and the GBI from analyzing the sample or including it in the data bank until further order of the court. By consent order entered on 13 January 2004, Boulineau also provided a DNA sample to the GDOC. Neither Burney nor Boulineau's DNA sample will be analyzed or stored in the data bank until the outcome of this litigation.


We review de novo a district court's legal conclusions as to the constitutionality of a statute. Doe v. Kearney, 329 F.3d 1286, 1293 (11th Cir.2003), cert. denied, 540 U.S. 947, 124 S.Ct. 389, 157 L.Ed.2d 277.

A. Search and Seizure

Under the Fourth Amendment,

"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

U.S. CONST. amend. IV. The Commissioner does not dispute that the statutorily required extraction of saliva for DNA profiling constitutes a "search" within the meaning of the Amendment. See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989) (blood tests, breathalyser tests, and the taking of urine constitute searches); Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 (1973) (inquiry that goes "beyond mere physical characteristics ... constantly exposed to the public" constitutes a search). As such, we need address only the search's reasonableness, an inquiry which takes into account "all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." See Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (citation omitted).

Although reasonableness in most criminal cases depends on the government's obtaining a warrant supported by probable cause, the Supreme Court has emphasized "the longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989); accord Skinner, 489 U.S. at 624, 109 S.Ct. at 1417 ("[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable."). Suspicionless searches have been upheld, for example, to protect the country's borders, United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977), to maintain order within prisons, Hudson v. Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 3201, 82 L.Ed.2d 393 (1984), and to achieve certain administrative purposes, New York v. Burger, 482 U.S. 691, 702-04, 107 S.Ct. 2636, 2643-44, 96 L.Ed.2d 601 (1987). In these "special needs" cases, the Court has performed the traditional Fourth Amendment analysis--balancing the interests of the state against the privacy interests of the individual--only after finding that the search vindicated a "special need" of government that goes beyond general law enforcement. See, e.g., Skinner, 489 U.S. at 619-20, 109 S.Ct. at 1414-15 (upholding nonconsensual blood and urine tests of certain railroad employees).

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Each circuit to address the question has upheld the constitutionality of DNA profiling statutes, but the circuits have disagreed on whether to do so through the special needs analysis or through the traditional balancing test. The Second, Seventh, and Tenth Circuits have engaged in balancing only after finding that the statute served a special need beyond general law enforcement. See Roe v. Marcotte, 193 F.3d 72, 79 (2d Cir.1999); Green v. Berge, 354 F.3d 675, 679 (7th Cir.2004); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir.1996). The Fourth, Fifth, and Ninth Circuits have applied the traditional balancing test without finding a special need. See Jones v. Murray, 962 F.2d 302, 306-07 (4th...

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