Green v. Berge

• Decision Date: 09 January 2004
• Docket Number: No. 01-4080.,No. 01-4081.,No. 02-1346.,01-4080.,01-4081.,02-1346.
• Citation: 354 F.3d 675
• Parties: Norman C. GREEN, Jr., Donald Lee, Glenn Turner, and Dennis E. Jones-El, Plaintiffs-Appellants, v. Gerald A. BERGE and James E. Doyle, Attorney General, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

354 F.3d 675

Norman C. GREEN, Jr., Donald Lee, Glenn Turner, and Dennis E. Jones-El, Plaintiffs-Appellants, v. Gerald A. BERGE and James E. Doyle, Attorney General, Defendants-Appellees.

No. 01-4080.

No. 01-4081.

No. 02-1346.

United States Court of Appeals, Seventh Circuit.

Argued November 4, 2003.

Decided January 9, 2004.

Barton J. O'Brien (argued), Shefsky & Froelich, Chicago, IL, for Plaintiffs-Appellants.

Glenn Turner, pro se, Boscobel, WI, for Plaintiff-Appellant.

Dennis E. Jones-El, pro se, Boscobel, WI, for Plaintiff-Appellant.

Daniel J. O'Brien (argued), Office of the Attorney General, Madison, WI, for Defendants-Appellees.

Before EASTERBROOK, ROVNER, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

The four plaintiffs — all felons serving prison terms at Wisconsin's Supermax penitentiary — filed this suit challenging a Wisconsin law which compels them to submit a deoxyribonucleic acid (DNA) sample for analysis and storage in a data bank. The plaintiffs contend that taking samples of their DNA pursuant to the law is an unconstitutional search and seizure in violation of the Fourth Amendment of the United States Constitution. The district court dismissed the complaint under 28 U.S.C. § 1915A, and today we resolve the plaintiffs' appeal.

Except for identical twins, no two people have the same DNA. See Thomas M. Fleming, Annotation, "Admissibility of DNA Identification Evidence," 84 A.L.R.4th 313 at § 2(b) (1991). In addition, an individual's DNA is the same in every nucleated cell in his body. Thus, a DNA analysis makes the identification of a specific person "to the practical exclusion of all others." Id.

The Wisconsin law, § 165.76 et seq., was passed in 1993. In its original form, only prisoners convicted of certain offenses were required to give DNA samples for analysis. In 1999, the law was amended to require that all persons convicted of felonies in Wisconsin (and those who were in prison at the time) provide DNA samples for analysis and storage in the state's data bank.

The statutory scheme provides standards for laboratory testing of the DNA samples. It contains a confidentiality provision, and it provides penalties for the unlawful dissemination of information obtained under the statute. The law also provides that if an individual's conviction or adjudication has been reversed, set aside, or vacated, the State's Crime Laboratory (where the data is held) must "purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person."

All 50 states and the federal government have adopted DNA collection and data bank storage statutes that, although not identical, are similar to the one in Wisconsin. See Robin Cheryl Miller, Annotation, "Validity, Construction, and Operation of State DNA Database Statutes," 76 A.L.R.5th 239 (2000). Challenges to these statutes as a whole and to their subparts have almost uniformly been unsuccessful. Thus, the plaintiffs in this suit face a decidedly uphill struggle on their one claim that their constitutional rights were violated when DNA was extracted from them in the absence of a warrant, probable cause, or an individualized and reasonable suspicion to believe they committed a crime.

Although the taking of a DNA sample is clearly a search, the Fourth Amendment does not proscribe all searches, only those that are unreasonable. In some instances where a search is not made pursuant to a warrant supported by probable cause, it may nonetheless be reasonable if it falls within an exception to the warrant requirement and is supported by "some quantum of individualized suspicion." United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). But even individualized suspicion is not always necessary to support a finding that a search is reasonable. See id. at 560-61, 96 S.Ct. 3074; see also Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 624, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ("individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable"); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) ("neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance").

Although the United States Supreme Court has yet to address the validity of DNA collection statutes under the Fourth Amendment, as we just noted, state and federal courts that have are almost unanimous in holding that these statutes do not violate the Fourth Amendment. See cases cited in the persuasive opinion of Magistrate Judge Gorenstein in Nicholas v. Goord, 2003 WL 256774 (S.D.N.Y.2003). But see United States v. Kincade, 345 F.3d 1095 (9th Cir.2003) (holding that forced blood extractions from federal parolees pursuant to the federal DNA Analysis Backlog Elimination Act violates the Fourth Amendment in the absence of individualized suspicion).

Courts uphold these DNA collection statutes because the government interest in obtaining reliable DNA identification evidence for storage in a database and possible use in solving past and future crimes outweighs the limited privacy interests that prisoners retain. Also, courts generally conclude that the collection of biological samples is only a minimal intrusion on one's personal physical integrity. These courts find that the government has a special need in obtaining identity DNA samples. The Tenth Circuit Court of Appeals recently summarized the "special need" met by the federal DNA Act:

The DNA Act, while implicating the Fourth Amendment, is a reasonable search and seizure under the special needs exception to the Fourth Amendment's warrant requirement because the desire to build a DNA database goes beyond the ordinary law enforcement need.

United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003).

In Shelton v. Gudmanson, 934 F.Supp. 1048 (W.D.Wis.1996), Judge (now Chief Judge) Crabb succinctly summarized the "special needs" line of cases that permit warrantless searches without individualized suspicion in a DNA collection case:

Like administrative searches, in which the warrant and probable cause showing are replaced by the requirement of showing a neutral plan for execution, a compelling governmental need, the absence of less restrictive alternatives and reduced privacy rights, see Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), special needs searches adopt a balancing of interests approach. Special needs searches have been held to include drug testing of railway executives, Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), customs officers, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), probationers' homes, Griffin, 483 U.S. at 868, 107 S.Ct. at 3165-66, and high school students participating in athletics, Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). In determining the reasonableness of these searches, the Supreme Court has considered the governmental interest involved, the nature of the intrusion, the privacy expectations of the object of the search and, to some extent, the manner in which the search is carried out. In Griffin, 483 U.S. at 868, 107 S.Ct. at 3165-66, for example, the Court noted that the warrantless search of the probationer's home had been carried out pursuant to valid regulations promulgated by the state. Although the state's DNA testing of inmates is ultimately for a law enforcement goal, it seems to fit within the special needs analysis the Court has developed for drug testing and searches of probationers' homes, since it is not undertaken for the investigation of a specific crime.

934 F.Supp. at 1050-51. We agree with and adopt the views expressed by Chief Judge Crabb.

In arguing against the constitutionality of the Wisconsin law, the plaintiffs rely heavily on City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), and Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). They insist that the combined impact of these cases undermines all of the decisions upholding various DNA statutes because they can no longer be viewed as reasonable under the Fourth Amendment if their primary purpose is to assist law enforcement. We disagree.

In City of Indianapolis v. Edmond, the city instituted a motor vehicle checkpoint program whose primary purpose was interdicting illegal narcotics trafficking. The program allowed police to randomly stop motorists on public highways without a warrant and without probable cause. While checking the motorists for compliance with license and registration requirements (as well as intoxication), police used a drug-sniffing dog in hopes of finding evidence of narcotics possession on the driver or in the car.

An important distinction between our case and Edmond is that the primary purpose of the Indianapolis checkpoint program was to see if a driver was then and there engaged in illegal drug activity. The primary purpose of the Wisconsin DNA law, on the other hand, is not to search for "evidence" of criminal wrongdoing. Its purpose is to obtain reliable proof of a felon's identity. Edmond says much about indiscriminate motor vehicle roadblocks and checkpoints but nothing about safe, nondiscriminatory collection of DNA samples from lawfully incarcerated felons.

Ferguson also provides no help for our plaintiffs. The issue there was whether the state's "interest in using the threat of criminal sanctions to deter pregnant women from using cocaine can justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant." 532 U.S. at 70, 121 S.Ct. 1281. The case involved a state hospital program...