517 F.3d 421 (6th Cir. 2008), 07-3428, Wilson v. Collins

Docket Nº:07-3428.
Citation:517 F.3d 421
Party Name:Antoine D. WILSON, Plaintif-Appellant, v. Terry J. COLLINS, et al., Defendants-Appellees.
Case Date:February 22, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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517 F.3d 421 (6th Cir. 2008)

Antoine D. WILSON, Plaintif-Appellant,


Terry J. COLLINS, et al., Defendants-Appellees.

No. 07-3428.

United States Court of Appeals, Sixth Circuit.

Feb. 22, 2008

Argued: Jan. 31, 2008.

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 04-00918-Norah McCann King, Magistrate Judge.

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Gina R. Russo, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for Appellant.

Richard Thomas Cholar, Jr., Ohio Attorney General Office, Columbus, Ohio, for Appellees.


Gina R. Russo, William J. Pohlman, Thomas H. Fusonie, Elizabeth Hanning Smith, Vorys, Sater, Seymour & Pease, Columbus, Ohio, David A. Singleton, Ohio Justice & Policy Center, Cincinnati, Ohio, for Appellant.

Richard Thomas Cholar, Jr., Ohio Attorney General Office, Columbus, Ohio, for Appellees.

Before: DAUGHTREY and McKEAGUE, Circuit Judges; GWIN, District Judge. [*]


McKEAGUE, Circuit Judge.

Plaintiff-appellant, a prisoner in the custody of the Ohio Department of Rehabilitation and Correction, challenges the constitutionality of Ohio's DNA Act, which requires the collection of DNA specimens from convicted felons. Below, plaintiff sought declaratory and injunctive relief, contending that the Act is violative of his Fourth Amendment, Fifth Amendment, due process and equal protection rights. The district court awarded summary judgment to the defendants on all claims. Finding the district court's opinion to be well-reasoned and consistent with the growing body of case law on such challenges to DNA statutes, we affirm.


Plaintiff-appellant Antoine D. Wilson is an African-American from Columbus, Ohio. After being found guilty of felonious assault in June 1998, he was sentenced to seven years' imprisonment, to run concurrently with a three-year term imposed on a firearm specification. Section 2901.07 of the Ohio Revised Code ("DNA statute" or "the Act"), in its present form, requires that a person convicted of a felony who is sentenced to a prison term "shall submit to a DNA [deoxyribonucleic acid] specimen collection procedure." In October 2003, Wilson submitted, over his objection, to the collection of a DNA specimen by allowing officials at the Southern Ohio Correctional Facility to swab buccal cells from the inside of his cheek. Pursuant to the Act, the resultant sample was forwarded to the Ohio Bureau of Criminal Identification and Investigation ("BCI&I") for analysis and for entry of the resultant DNA profile into the state and national DNA index systems. The DNA profile remains indefinitely in the index systems and is available

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for use by law enforcement agencies in seeking matches with DNA evidence obtained in pending and future criminal investigations. In addition, the DNA samples collected by the Ohio Department of Rehabilitation and Correction are also stored indefinitely.

Wilson commenced this action in September 2004 by filing a five-count complaint, naming as defendants the Director of the Ohio Department of Rehabilitation and Correction, the Superintendent of the BCI&I, the Ohio Attorney General, and the wardens of correctional facilities where Wilson has been incarcerated. Wilson proceeds under 42 U.S.C. § 1983, alleging that the collection and maintenance of his DNA sample and the recording of his DNA profile violate his constitutional rights. By consent of the parties, the case was referred to Magistrate Judge Norah McCann King for all purposes and, ultimately, for entry of judgment on the parties' cross-motions for summary judgment.

The district court granted defendants' motion for summary judgment in March 2007. On Count I, the court ruled that the Fourth Amendment protection against unreasonable searches and seizures is not violated because a prisoner's diminished privacy rights are outweighed by the state's interest in preventing, deterring and solving crimes. On Count II, the court ruled that substantive due process rights are not violated because the swabbing or extraction of saliva from a prisoner's mouth is such a minimal intrusion as to not implicate any fundamental right to bodily integrity. On Count III, the court held that procedural due process rights are not violated because the DNA sample collection process is attended by adequate procedural safeguards to minimize the risk of erroneous deprivation. On Count IV, the court ruled that the Fifth Amendment protection against compulsory self-incrimination is not violated because DNA samples are not testimonial in nature. Finally, on Count V, the court held that any disparate adverse impact on African-Americans, who are disproportionately over-represented in Ohio prison populations, is not actionable because there is no evidence of intentional discrimination. On appeal, Wilson challenges all of these holdings.1


The parties agree that this case poses no questions of fact and that the district court's legal rulings in denying Wilson's motion for summary judgment and granting defendants' motion for summary judgment are subject to de novo review. See Cutter v. Wilkinson, 423 F.3d 579, 584 (6th Cir. 2005) ("Questions concerning the constitutionality of a statute are reviewed de novo." (quoting United States v. Sawyers, 409 F.3d 732, 735 (6th Cir. 2005))).

A. Fourth Amendment Unreasonable Search and Seizure

During the last several years, the federal appellate courts have addressed a plethora of claims by prisoners, parolees, supervised releasees and probationers, challenging the constitutionality of federal and state laws that require them to submit to collection of DNA specimens for purposes of DNA profiling. Most of these challenges have been brought as claims for violations of the Fourth Amendment protection against unreasonable search and seizure. Such Fourth Amendment challenges have been uniformly

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rejected by the courts, as the government's compelling interests in crime control have consistently been deemed to outweigh the plaintiffs' diminished privacy interests.

Most recently, the Ninth Circuit rejected such a challenge to the federal DNA Analysis Backlog Elimination Act, as amended by the Justice for All Act. United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007). The Kriesel court noted that every circuit to consider a Fourth Amendment challenge to the federal DNA Act has upheld the Act. Id. at 946 (citing United States v. Weikert, 504 F.3d 1, 9 (1st Cir. 2007); Banks v. United States, 490 F.3d 1178, 1183 (10th Cir. 2007); United States v. Amerson, 483 F.3d 73, 78 (2d Cir. 2007); United States v. Hook, 471 F.3d 766, 772-74 (7th Cir. 2006); United States v. Conley, 453 F.3d 674, 677-81 (6th Cir. 2006); United States v. Kraklio, 451 F.3d 922, 924 (8th Cir. 2006); United States v. Castillo-Lagos, 147 Fed.Appx. 71 (11th Cir. 2005)). In each of these cases, whether the court saw fit to apply the "special needs" test or, instead, the "totality of the circumstances" test, the result was the same. Because the government's compelling interests in crime control were deemed to outweigh the challenger's diminished privacy rights, the challenged "search" was held not to be unreasonable.2 In Conley, the Sixth Circuit upheld the federal DNA Act under both tests.

Moreover, Fourth Amendment challenges to parallel state DNA-indexing statutes have met with similar results. See e.g., Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005) (Georgia statute); Green v. Berge, 354 F.3d 675 (7th Cir. 2004) (Wisconsin statute); Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) (Oklahoma statute); Schlicher v. Peters, 103 F.3d 940 (10th Cir. 1996) (Kansas statute); Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996) (Colorado statute); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) (Virginia statute).

Nonetheless, appellant Wilson maintains the district court erred in awarding judgment to the state defendants on his Count I Fourth Amendment claim.

1. "Totality of the Circumstances" Test or "Special Needs" Test?

Although the federal courts have reached uniform results, they have been divided regarding the most appropriate test to apply in scrutinizing a Fourth Amendment challenge to a DNA-indexing statute. Under the "totality of the circumstances" test, determining whether a search is reasonable requires "assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006) (quoting United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001));

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see also Conley, 453 F.3d at 679-80. In Samson, the Supreme Court applied the totality-of-the-circumstances test in evaluating and upholding a suspicionless search of a parolee. The Court expressly observed that application of the totality-of-the-circumstances test rendered examination of the search under the "special needs" test unnecessary. 126 S.Ct. at 2199.

Under the "special needs" doctrine, the Supreme Court has recognized that a warrantless, suspicionless search may be justified "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). While a "general interest in crime control" does not suffice, "some special law enforcement concerns" may justify a minimal intrusion during information-seeking efforts where "the concept of individualized suspicion has little role to play." Illinois v. Lidster, 540 U.S. 419, 424-25, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004). If a "special need" for the suspicionless search is identified, then the "reasonableness" of the search must be evaluated, balancing the gravity...

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