440 F.3d 489 (D.C. Cir. 2006), 05-5156, Johnson v. Quander

• Citation: 440 F.3d 489
• Party Name: Lamar JOHNSON, Appellant v. Paul A. QUANDER, et al., Appellees.
• Case Date: March 17, 2006
• Court: United States Courts of Appeals, U.S. Court of Appeals — District of Columbia Circuit

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440 F.3d 489 (D.C. Cir. 2006)

Lamar JOHNSON, Appellant

v.

Paul A. QUANDER, et al., Appellees.

No. 05-5156.

United States Court of Appeals, District of Columbia Circuit.

March 17, 2006.

Argued Feb. 17, 2006.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (No. 04cv00448).

Timothy P. O'Toole, Attorney, Public Defender Service of the District of Columbia, argued the cause for appellant. With him on the briefs was Todd A. Cox, Attorney.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Kenneth L. wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, BROWN and GRIGGITH, Circuit Judges.

OPINION

SENTELLE, Circuit Judge:

Lamar Johnson, a former District of Columbia probationer, appeals from a District Court judgment dismissing his action seeking to enjoin the application of the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act" or "the Act"), 42 U.S.C. §§ 14135-14135e. Johnson argued that the Act violated his constitutional rights under the Fourth Amendment and violated other of his constitutional and statutory rights. Because we conclude that the District Court correctly held that the Act is neither facially unconstitutional nor unconstitutional as applied to Johnson, we affirm.

I

On March 27, 2001, Johnson stole two cars while suffering from "previously untreated emotional and mental health problems." Shortly after his arrest, Johnson was taken to a hospital because he was found sitting in a puddle eating dirt. On December 20, 2001, he was convicted in the Superior Court of the District of Columbia on two counts of unarmed robbery in violation of D.C. Code § 22-2801, for

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which he received a suspended sentence and two years probation.

While Johnson was on probation, the Appellees--agents from the District of Columbia Court Services and Offender Supervision Agency ("CSOSA")--demanded that Johnson provide a DNA sample for inclusion in the Combined DNA Index System ("CODIS"). The CSOSA agents did not have a warrant and did not have individualized suspicion that Johnson had committed a crime (other than the two counts of unarmed robbery for which he had been convicted and placed on probation). However, the agents claimed that Johnson was obligated under the Act to submit his DNA for inclusion in the CODIS database.

The Act provides that CSOSA officials "shall collect a DNA sample from each individual under the supervision of the Agency who is on supervised release, parole, or probation who is, or has been, convicted of a qualifying District of Columbia offense ...." 42 U.S.C. § 14135b(a)(2). Congress left to the District of Columbia the responsibility of determining which offenses should be deemed "qualifying District of Columbia offenses." Id. § 14135b(d). In turn, the District designated forty-nine separate crimes as "qualifying ... offenses" under the DNA Act, including robbery and carjacking. See D.C.Code § 22-4151(27), (29).

Despite the fact that Johnson was convicted on two counts of a "qualifying offense," he refused to provide a DNA sample to the CSOSA. A Superior Court judge then ordered Johnson to show cause why his probation should not be revoked because of this refusal to comply with the DNA Act. Prior to the probation-revocation proceeding, Johnson filed a complaint in the United States District Court for the District of Columbia, seeking a temporary restraining order ("TRO") to prevent the Appellees from requiring him to provide a DNA sample. Before the District Court could rule on the TRO, the parties proposed to resolve the need for emergency injunctive relief. The parties filed a joint motion, under which Johnson agreed to provide a blood sample. The Appellees agreed to delay processing that sample until after his claims in this action and any subsequent appeals had been resolved. The District Court granted the parties' joint motion and denied Johnson's motion for a TRO.

Thereafter the Appellees filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). The District Court concluded--after "[b]alancing the private and public interests" under the totality of the circumstances--that because probationers have diminished expectations of privacy, Johnson did not state a viable Fourth Amendment claim. The court also rejected Johnson's claims under the Ex Post Facto Clause, the Fifth Amendment, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub. L. No. 104-191, 110 Stat. 1936, and the International Convention on the Elimination of all Forms of Racial Discrimination ("CERD"). Accordingly, the court granted the Appellees' motion in full and dismissed the case. This appeal ensued.

II

Johnson raises two claims under the Fourth Amendment. First, Johnson argues it was unconstitutional for the CSOSA to collect his blood while he was still on probation. Second, Johnson argues it is unconstitutional for the government to retain his DNA profile and "re-search" it in the CODIS database after his probationary term expires (which it now has). We reject both claims.

A

Johnson's first claim is that collection and storage of his DNA is unconstitutional

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under the Fourth Amendment, which guarantees that the people shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...." In Johnson's view, the collection and storage of a probationer's DNA "[s]trik[es] at the heart of the Fourth Amendment's most inviolate zone," and as a result, "these searches must always be predicated on some measure of individualized suspicion." Because the Act requires every prisoner, probationer, and parolee convicted of a "qualifying offense" to submit his DNA sample without any showing of individualized suspicion, Johnson argues the Act is unconstitutional. For the reasons set forth below, we disagree.

There is no question that the compulsory extraction of blood for DNA profiling constitutes a "search" within the meaning of the Fourth Amendment. See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ("We have long recognized that a compelled intrusion into the body for blood to be analyzed for alcohol content must be deemed a Fourth Amendment search." (internal quotation marks, alteration, and citation omitted)); see also Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The question before us, therefore, is whether the search was "reasonable." See Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) ("The touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' " (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))).

Although ordinarily the reasonableness vel non of a search depends on governmental compliance with the Fourth's Amendment's Warrant Clause, see, e.g., United States v. U.S. Dist. Court, 407 U.S. 297, 315-16, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), the Supreme Court has applied the "special needs" exception to the warrant requirement to uphold the warrantless search of a probationer's residence, see Griffin v. Wisconsin, 483 U.S. 868, 879-80, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). In Griffin, a police detective contacted Griffin's probation officer's supervisor with information that Griffin might have weapons in his apartment. The supervisor, another probation officer, and three plainclothes policemen went to Griffin's apartment, searched it, and found a weapon. Id. at 871, 107 S.Ct. 3164. Griffin was arrested and charged with possession of a firearm by a felon. He eventually moved to suppress the evidence uncovered during the warrantless search of his residence. Id. at 872, 107 S.Ct. 3164.

After he was convicted, Griffin appealed. Affirming his conviction, the Supreme Court explained:

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. Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.... [I]t is always true of probationers (as we have said it to be true of parolees) that they do not enjoy the absolute liberty to which every citizen is entitled, but only conditional liberty properly dependent on observance of special probation restrictions.

These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community

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is not harmed by the probationer's being at large. These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.

Id. at 873-75, 107 S.Ct. 3164 (internal quotation marks, alterations, and citations omitted). While Griffin may not establish that every suspicionless search of a parolee is a constitutionally sound "special need," Griffin does permit the search of a probationer based on no more than reasonable suspicion--even where the search at issue is triggered by a desire to obtain law enforcement information and motivated by ordinary law enforcement purposes. Id. at 880, 107 S.Ct. 3164 . Thus, even though Griffin does not establish the constitutionality of suspicionless searches of probationers, it does stand for the proposition that probationers are entitled to fewer Fourth Amendment protections than are...