U.S. v. Conley

• Decision Date: 07 July 2006
• Docket Number: No. 05-5900.,05-5900.
• Citation: 453 F.3d 674
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobbie J. CONLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 674

453 F.3d 674

UNITED STATES of America, Plaintiff-Appellee, v. Bobbie J. CONLEY, Defendant-Appellant.

No. 05-5900.

United States Court of Appeals, Sixth Circuit.

Argued: June 6, 2006.

Decided and Filed: July 7, 2006.

ARGUED: J. Patten Brown III, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Elizabeth Olson, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Randolph W. Alden, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Elizabeth Olson, United States Department of Justice, Washington, D.C., Carroll L. Andre III, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: SILER, CLAY, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Defendant-appellant Bobbie Conley appeals the order of the district court requiring her to submit to blood sampling for DNA pursuant to 42 U.S.C. § 14135a. The order was imposed as part of Conley's sentence following the entry of her guilty plea to one count of bank fraud. Conley claims that in her case, the order constitutes an unreasonable search and seizure of her person under the Fourth Amendment. The district court stayed the order pending disposition of this appeal.

For the reasons that follow, the order of the district court requiring the DNA testing is affirmed.

I. BACKGROUND

Conley worked as a bank teller at the First Tennessee Bank in Memphis, Tennessee from October 2002 until March 2004. During her employment, Conley defrauded the bank in 18 separate incidents by entering a "deposit" into her account, and then covering the deposit with funds that she obtained by "shorting" the bank customers throughout the day of her deposit. At the time Conley committed these offenses, she was on probation arising from her conviction for stealing money from her previous employer.

On December 14, 2004, a federal grand jury sitting in the Western District of Tennessee returned an indictment charging Conley with 18 Counts of bank fraud in violation of 18 U.S.C. § 1344. As the result of a plea agreement, Conley pleaded guilty to Count 1 of the indictment on February 15, 2005. At Conley's May 20, 2005, sentencing, the district court granted the government's motion to dismiss Counts 2-18. The court sentenced Conley to time served and three years of supervised release. She was ordered to pay $14,191 in restitution, and a $100 special assessment.

As a condition of her supervised release, Conley was ordered to submit to DNA testing, pursuant to 42 U.S.C. § 14135a. Conley objected to this order, claiming that it was unconstitutional because in her case, the collection did not bear a rational relationship to the Congressional objectives underpinning the statute. The district court ruled that it was not able to "carve out" an exception for Conley, because the statute requiring DNA testing of felons is clear and unambiguous on its face. However, the district court stayed the collection of the DNA sample pending this appeal.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over this case because Conley was indicted by a federal grand jury on December 14, 2004, for alleged violations of 18 U.S.C. § 1344. This court has jurisdiction to hear the present appeal pursuant to 28 U.S.C. § 1291. The defendant filed this timely notice of appeal from the final judgment in a criminal case entered on June 9, 2005. We review the reasonableness of a Fourth Amendment search de novo. Knox County Educ. Ass'n v. Knox County Bd. of Educ., 158 F.3d 361, 371 (6th Cir.1998).

III. ANALYSIS

Title 42 U.S.C. § 14135a requires the collection of DNA identification information in certain circumstances. The relevant provisions state:

a) Collection of DNA samples

(1) From individuals in custody

* * * * * *

(B) The Director of the Bureau of Prisons shall collect a DNA sample from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of a qualifying Federal offense (as determined under subsection (d) of this section) or a qualifying military offense, as determined under section 1565 of Title 10.

(2) From individuals on release, parole, or probation

The probation office responsible for the supervision under Federal law of an individual on probation, parole, or supervised release shall collect a DNA sample from each such individual who is, or has been, convicted of a qualifying Federal offense (as determined under subsection (d) of this section) or a qualifying military offense, as determined under section 1565 of Title 10.

* * * * * *

(d) Qualifying Federal offenses

The offenses that shall be treated for purposes of this section as qualifying Federal offenses are the following offenses as determined by the Attorney General:

(1) Any felony

* * * * * *

42 U.S.C.A. § 14135a.

Conley asserts that the collection of her DNA violates the Fourth Amendment, because a search requires some individualized suspicion of wrongdoing. Further, she argues that the DNA testing does not meet the requirements of the "special needs" doctrine, because her liberty interest is greater than the government's interest in obtaining her DNA. She further argues that the search fails the "totality of the circumstances" test. We consider each issue in turn.

A. Individualized Suspicion

Conley argues that the collection of her blood for the purpose of DNA testing implicates the "reasonableness" requirement of the Fourth Amendment. She claims that in order for a search to be reasonable, there must be some individualized suspicion toward the person subject to search. She cites Griffin v. Wisconsin to support her assertion that while a probationer's freedom from unreasonable governmental action is more limited than the average citizen, there must still be "reasonable grounds" for a warrantless search. 483 U.S. 868, 872, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). Conley argues that Griffin requires individualized suspicion for a warrantless search to be conducted.

In Griffin, the Court upheld a Wisconsin statute that allowed the warrantless search of a probationer's home, as long as there are "reasonable grounds" to believe the presence of contraband on the premises. Id. at 874, 107 S.Ct. 3164. The Court found that the "special needs" of law enforcement with regard to probationers justified the departure "from the usual warrant and probable-cause requirements." Id. In so deciding, the Court stated that "[s]upervision, then, is a `special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large." Id. at 875, 107 S.Ct. 3164. Conley claims that the "reasonable grounds" requirement discussed in Griffin shows that an individualized suspicion of wrongdoing must be present before a search can be performed.

Conley also claims that United States v. Knights supports the individualized suspicion requirement. 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). In Knights, a probation officer searched Knights' apartment, relying on an agreement in Knights' probation documents permitting, inter alia, a warrantless search of his home. Shortly after Knights was placed on probation, a utility transformer was set on fire. Knights had long been suspected of engaging in vandalism against the affected power company. During an investigation of the fire, police saw Knights' companion leaving Knights' apartment carrying what appeared to be pipe bombs. The officer entered Knights' apartment and found additional evidence linking Knights to the fire. Id. at 114-15, 122 S.Ct. 587.

Knights moved to suppress the evidence based on the warrantless search. The Supreme Court ruled that the search of Knights' home was justified in view of the totality of the circumstances. Id. at 118, 122 S.Ct. 587 ("[W]e conclude that the search of Knights was reasonable under our general Fourth Amendment approach of `examining the totality of the circumstances.'") (citation omitted). Conley asserts that although the Court found that the search was reasonable under the Fourth Amendment, it did not "dispose of the requirement of individualized suspicion." Appellant Br. at 15.

In response, the government argues that a search need not be based on probable cause or individualized suspicion to be reasonable under the Fourth Amendment. In National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), the Supreme Court found that "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Further, the Court in United States v. Knights stated:

We do not decide whether ... a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion.

534 U.S. at 120 n. 6, 122 S.Ct. 587.

Likewise, the Griffin court offered no opinion concerning the necessity of individualized suspicion for a law enforcement official to conduct a warrantless search. Rather, the Court crafted a narrow holding, finding that the search in Griffin "was `reasonable' within the meaning of the Fourth Amendment because it was conducted pursuant to a valid [Wisconsin] regulation governing probationers." Griffin, 483 U.S. at 880, 107 S.Ct. 3164. The Court also stated that probationers "do not enjoy `the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.'" Id. at 874, 107 S.Ct. 3164 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

Thus,...