Rise v. State of Or.

• Citation: 59 F.3d 1556
• Decision Date: 18 July 1995
• Docket Number: No. 93-35521,93-35521
• Parties: , 95 Cal. Daily Op. Serv. 5535, 95 Daily Journal D.A.R. 9438 Erik C. RISE; David R. Durham; Jeffery F. Rhodes; David A. English; and Michael Milligan, Plaintiffs-Appellants, v. STATE OF OREGON; Fred Pearce; Director, Department of Corrections; Department of State Police; Reginald B. Madsen, Superintendent, Department of State Police; Catherine Knox, Administrator, DOC Health Services Department; and John Does 1-25, DOC employees implementing Chapter 669, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1556

59 F.3d 1556

64 USLW 2115, 95 Cal. Daily Op. Serv. 5535,

95 Daily Journal D.A.R. 9438

Erik C. RISE; David R. Durham; Jeffery F. Rhodes; David A. English; and Michael Milligan, Plaintiffs-Appellants, v. STATE OF OREGON; Fred Pearce; Director, Department of Corrections; Department of State Police; Reginald B Madsen, Superintendent, Department of State Police Catherine Knox, Administrator, DOC Health Services Department; and John Does 1-25, DOC employees implementing Chapter 669, Defendants-Appellees.

No. 93-35521.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 2, 1994.

Decided July 18, 1995.

Jeff Dominic Price, Los Angeles, CA, for plaintiffs-appellants.

Robert Atkinson, Asst. Atty. Gen., Salem, OR, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before: FLETCHER, NELSON and RYMER, Circuit Judges.

Opinion by Judge FLETCHER; Dissent by Judge D.W. NELSON.

FLETCHER, Circuit Judge:

The plaintiffs in this 42 U.S.C. Sec. 1983 suit appeal the district court's summary judgment dismissing their claims. We have jurisdiction and affirm.

I

Chapter 669, Oregon Laws 1991, O.R.S. Secs. 137.076, 161.325(4), 181.085, 419.507(11), and 419.800(4)(k), requires persons convicted of murder, a sexual offense, ¹ or conspiracy or attempt to commit a sexual offense to submit a blood sample to the Oregon Department of Corrections ("DOC"). O.R.S. Sec. 137.076. DOC uses the blood that is submitted to create a deoxyribonucleic acid (DNA) data bank. Plaintiffs Erik Rise, David Durham, and Jeffery Rhodes were convicted before the enactment of Chapter 669 of one or more of the offenses to which the Chapter applies. Plaintiff Michael Milligan was convicted of attempted murder, which is not a predicate offense under Chapter 669.

The plaintiffs allege that Chapter 669 violates the Fourth Amendment's prohibition against unreasonable searches and seizures and constitutes an ex post facto punishment as applied to them because they were convicted prior to the law's enactment. They also maintain that the Due Process Clause requires the defendants to provide a hearing before drawing blood pursuant to Chapter 669. Finally, plaintiff Milligan alleges that the defendants violated his right to due process by ordering him to submit a blood sample even though he had not been convicted of a predicate offense and by placing him in administrative segregation when he refused to comply.

We review de novo the district court's grant of summary judgment. Jones v. Union Pacific R.R., 968 F.2d 937, 940 (9th Cir.1992). In doing so, we view the evidence in the light most favorable to the plaintiffs and determine whether the district court applied the relevant substantive law correctly and whether any genuine issues of material fact exist for trial. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

II

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989) ("this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy"); Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) (compulsory blood test "plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment"). To hold that the Fourth Amendment applies to the blood sampling authorized by Chapter 669, however, is only the start of our inquiry, "[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable." Skinner, 489 U.S. at 619, 109 S.Ct. at 1414; accord Vernonia School District 47J v. Acton, --- U.S. ----, ---- - ----, 115 S.Ct. 2386, 2389-90, 132 L.Ed.2d 564 (1995) ("the ultimate measure of the constitutionality of a governmental search is 'reasonableness' "). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983). The plaintiffs maintain that because Chapter 669 requires them to submit blood samples without warrants and without probable cause to believe that they have committed any unsolved criminal offenses, it violates the Fourth Amendment's prohibition against unreasonable searches and seizures. We do not agree.

A

The district court held that Chapter 669 was constitutional because it served a "special need" other than normal law enforcement, see, e.g., New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), and was related to effective penal administration, see, e.g., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The plaintiffs maintain that the "special needs" doctrine and the so-called "prison inmate" exception to the warrant and probable cause requirements do not apply because Chapter 669's sole purpose is to assist in the arrest and prosecution of suspected criminals. We need not determine whether Chapter 669 also serves legitimate penal interests, as the defendants argue, because we find that the statute is constitutional even if its only objective is law enforcement. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir.1987) (appellate court can affirm "on any ground finding support in the record, even if the district court relied on the wrong grounds or wrong reasoning").

Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Department v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). To determine whether the intrusions authorized by Chapter 669 are minimal, we examine separately the privacy interests implicated by the state's derivation and retention of identifying DNA information from a convicted felon's blood, and the interest in bodily integrity implicated by the physical intrusion necessary to obtain the blood sample.

The gathering of genetic information for identification purposes from a convicted murderer's or sexual offender's blood once the blood has been drawn does not constitute more than a minimal intrusion upon the plaintiffs' Fourth Amendment interests. The information derived from the blood sample is substantially the same as that derived from fingerprinting--an identifying marker unique to the individual from whom the information is derived. The gathering of fingerprint evidence from "free persons" constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18, 105 S.Ct. 1643, 1645-47, 84 L.Ed.2d 705 (1985); Davis v. Mississippi, 394 U.S. 721, 726-28, 89 S.Ct. 1394, 1397-98, 22 L.Ed.2d 676 (1969). Nevertheless, everyday "booking" procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. United States, 324 F.2d 879, 882 (D.C.Cir.1963) (Burger, J.) ("it is elementary that a person in lawful custody may be required to submit to ... fingerprinting ... as part of the routine identification processes"); Napolitano v. United States, 340 F.2d 313, 314 (1st Cir.1965) ("Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights."). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.

A similar, but even more compelling, distinction is applicable here. Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71, 86 S.Ct. at 1834-36; United States v. Chapel, 55 F.3d 1416, 1418-19 (9th Cir.1995) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights. Chapter 669 authorizes DOC to acquire blood samples not from free persons or even mere arrestees, but only from certain classes of convicted felons in order to create a record for possible use for identification in the future. These persons do not have the same expectations of privacy in their identifying genetic information that "free persons" have. Once a person is convicted of one of the felonies included as predicate offenses under Chapter 669, his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from the blood sampling.

That the gathering of DNA information requires the drawing of blood rather than inking and rolling a person's fingertips does not elevate the intrusion upon the plaintiffs' Fourth Amendment interests to a level beyond minimal. ² The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625, 109 S.Ct. at 1417 (blood tests do not "infringe significant privacy interests"); Winston v. Lee, 470 U.S. 753,...