Jones v. Murray

• Decision Date: 04 March 1991
• Docket Number: Civ. A. No. 90-0572-R.
• Citation: 763 F. Supp. 842
• Parties: Lawrence R. JONES, et al., Plaintiffs, v. Edward W. MURRAY, Director of Department of Corrections, Paul B. Ferrara, Director of Division of Forensic Science, Defendants.
• Court: U.S. District Court — Western District of Virginia

763 F. Supp. 842

Lawrence R. JONES, et al., Plaintiffs, v. Edward W. MURRAY, Director of Department of Corrections, Paul B. Ferrara, Director of Division of Forensic Science, Defendants.

Civ. A. No. 90-0572-R.

United States District Court, W.D. Virginia, Roanoke Division.

March 4, 1991.

Harold J. Krent, PCAP Supervising Atty., Charlottesville, Va., Philip J. Psaeltiner, Third Year Student PCAF, Charlottesville, Va., for plaintiffs.

Mark R. Davis, Office of the Atty. Gen., Richmond, Va., for defendants.

OPINION

TURK, Chief Judge.

BACKGROUND

On October 9, 1990, plaintiffs, Lawrence Jones et al., filed an action pursuant to 42 U.S.C. section 1983 challenging the constitutionality of Virginia Code sections 19.2-310.2—310.7 which direct the Virginia Department of Corrections to take and store the blood of a convicted felon for subsequent deoxyribonucleic acid (DNA) analysis. Plaintiffs sought a temporary restraining order and a preliminary injunction enjoining defendants from acting in accordance with the above-noted Virginia Code sections. Plaintiffs also moved the Court to certify a class action.

On October 12, 1990, this Court denied plaintiffs' motions for a temporary restraining order and preliminary injunction. October 18, 1990 the parties filed a consent motion for class certification and expedited proceedings. October 26, the Court certified a class of all felons who have been or will be convicted of a felony under the laws of the Commonwealth of Virginia and who will be subject to blood tests for DNA analysis pursuant to Va.Code Ann. § 19.2-310.2 (1990).

The case is presently before the Court on defendants'¹ motion for summary judgment and plaintiffs' motion for partial summary judgment.

Virginia Code § 19.2-310.2, enacted by the 1990 General Assembly for the Commonwealth of Virginia and effective on July 1, 1990, provides that all felons convicted subsequent to July 1, 1990, all felons convicted prior to July 1, 1990 and incarcerated as of July 1, 1990, and all sex offenders convicted under Title 18.2, Chapter 4, Article 7 and incarcerated as of July, 1989 shall provide a blood sample to the Virginia Department of Corrections. Va.Code Ann. § 19.2-310.2 (1990). The blood samples are sent to the Bureau of Forensic Science within the Division of Consolidated Laboratory Services, Department of General Services (Bureau) for DNA analysis. The Bureau stores and maintains the identification characteristics resulting from the DNA analysis in a DNA data bank. Va. Code Ann. § 19.2-310.4 (1990). The information in the data bank may be released to federal, state and local law enforcement officers in furtherance of an official investigation. Va.Code Ann. § 19.2-310.5 (1990). Unauthorized use of the data bank is prohibited by law. Va.Code Ann. § 19.2-310.6 (1990).

Felons convicted subsequent to the effective date of the statute must provide a blood sample for DNA analysis upon entry into the prison system, in conjunction with the collection of blood for health-related tests. If the felon is not sentenced to a term of confinement, the blood is collected as a condition of his release on probation. Those convicted of a felony prior to July 1, 1990 and within the mandate of the statute must submit to a blood test prior to being released on parole. The blood samples are analyzed by the Bureau of Forensics for DNA identification characteristics and the identification characteristics are stored in a data bank. As the statute notes, the data bank is being developed to aid law enforcement officials in investigating future violent crimes. Indeed, the data bank may be accessed for this purpose only. See Va. Code Ann. § 19.2-310.5, -310.6 (1990).

Plaintiffs challenge the Virginia statute on four grounds. First, plaintiffs contend the taking of blood and subsequent analysis thereof violate the fourth amendment prohibition against unreasonable searches and seizures. Second, plaintiffs assert the statute violates the felons' Constitutional right to privacy. Third, plaintiffs convicted prior to the effective date of the statute (July 1, 1990) claim the blood testing requirement violates the Ex Post Facto Clause. And fourth, prisoners convicted prior to July 1, 1990 contend the statute interferes with their vested liberty interest in mandatory parole because the blood test constitutes a condition of parole.

SUMMARY JUDGMENT

This Court may grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Federal Rule of Civil Procedure 56(c). In filing their motion for summary judgment on all counts, defendants contend that there are no genuine issues of material fact. Plaintiffs have conceded, in their motion for partial summary judgment, that there are no genuine issues of material fact with regard to the first, third, and fourth claims. The Court believes² there are no genuine issues of material fact that would prevent the Court from deciding any of plaintiffs' claims.

I. PLAINTIFFS' FOURTH AMENDMENT CLAIM

As has been noted repeatedly, the fourth amendment protects individuals from unreasonable searches and seizures. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). The Virginia Department of Corrections and the Bureau of Forensic Sciences perform searches when taking and analyzing blood samples from persons within § 19.2-310.2. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Defendants concede this point, but contend that the searches are reasonable. The reasonableness of any search "depends on the circumstances surrounding the search." United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985). Thus, the validity of a search is determined by balancing the government's interest against the privacy interest of the individual being searched. Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1978). The reasonableness of a search generally is measured by a warrant demonstrating probable cause. Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).

A. Special Needs

The Supreme Court has ruled that the warrant requirement is not inflexible; there are various situations in which "special needs, beyond the normal needs of law enforcement make the warrant and probable-cause requirement impracticable." New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 748, 83 L.Ed.2d 720 (1985) (Supreme Court held that searches of some student property could be conducted without a warrant or probable cause); see also O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (work-related searches need not be supported by a warrant or probable cause); Dunn v. White, 880 F.2d 1188, 1194 (10th Cir.1989) ("The government's interest in the operation of a prison presents `special needs beyond law enforcement that may justify departures from the usual warrant and probable cause requirements.'"). Plaintiffs claim the Court should not abandon the warrant requirement because the State intends to use the data bank to investigate violent crimes and this purpose is within the realm of the "normal needs of law enforcement." However, plaintiffs erroneously conclude that the "special needs" analysis can never be applied where the State's interest involves law enforcement. In Griffin v. Wisconsin, petitioner complained that he could not be searched by a probation officer unless the officer had probable cause to believe the probationer had committed a crime or otherwise possessed contraband. The Supreme Court disagreed, holding that a probationer could be searched on less than probable cause because of his status as a probationer and in furtherance of probation objectives.³ 483 U.S. at 880, 107 S.Ct. at 3172. The probation officer conducted a valid search where "the information provided indicated, ... only the likelihood ... of facts justifying the search," as required under the Wisconsin statute permitting the search. Id. Thus, probation, "one of the points in a continuum of punishment," and the supervision required thereunder, were deemed "special needs." Id. at 873-74, 107 S.Ct. at 3168.⁴ The Court recognized a special need to supervise probationers based on studies showing that increased supervision decreased the incidence of recidivism. Id. at 875, 107 S.Ct. at 3169.⁵ The Court held that a balancing test was appropriate, as was a standard which allowed a search on less than probable cause, even where the acknowledged purpose of the search was to ferret out crime. Even the dissent, while denying that probationers should be subject to warrantless searches, recognized that "the presence of special law enforcement needs justifies resort to the balancing test." Id. at 881, 107 S.Ct. at 3172. (Blackmun, J., dissenting) (emphasis added). Thus, this Court believes the establishment of a data bank can be classified as a special need even if the data bank will be used in solving future crimes.

Further, the Commonwealth could not possibly meet the requirement of a warrant supported by probable cause. The very nature of the data bank refutes the possibility of establishing probable cause. The data bank will help solve future crimes; no crime has yet been committed, thus no suspicion exists. Even so, the Supreme Court has stated that "a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable." Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 624, 109 S.Ct. 1402, 1417, 103 L.Ed.2d 639 (1989). In National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), the Supreme Court considered the constitutional implication of drug testing certain categories of United States Customs employees. In holding the regulations valid, the Supreme Court considered and accepted the Government's argument that special needs were...