Polston v. State

• Decision Date: 20 January 2005
• Docket Number: No. CR 04-651.,CR 04-651.
• Parties: Ronnie POLSTON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

201 S.W.3d 406

Ronnie POLSTON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 04-651.

Supreme Court of Arkansas.

January 20, 2005.

John Wesley Hall, Jr., Little Rock, for appellant.

Mike Beebe, Att'y Gen., by Lauren Elizabeth Heil, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Chief Justice.

Appellant Ronnie Polston entered a plea of guilty to possession of methamphetamine, possession of marijuana with intent to deliver, possession of drug paraphernalia, and possession of drug paraphernalia with intent to use. The Independence County Circuit Court sentenced Polston to two years' confinement in a Regional Punishment Facility, to be followed by a five-year suspended sentence. In addition, Polston was assessed a $2500 fine, court costs of $150, and a $250 DNA testing fee. Polston does not appeal the plea or the sentence of the circuit court. Rather, he argues that DNA testing of non-violent offenders or non-sexual offenders, pursuant to the State Convicted Offender DNA Database Act ("DNA Act"), constitutes an unreasonable search and seizure under the Fourth Amendment of the United States Constitution and article 2, section 15, of the Arkansas Constitution. Further, Polston argues that DNA testing of non-violent drug offenders is an unreasonable search and violates a basic right of privacy, the "right to be let alone" guaranteed in the Bill of Rights to the United States Constitution and Arkansas Constitution, as well as Arkansas privacy law as a whole.

This appeal presents questions concerning the interpretation or construction of the Constitution of Arkansas, as well as issues concerning federal constitutional interpretation. Therefore, we have jurisdiction of this matter pursuant to Ark. Sup. Ct. R. 1-2(a)(1) and (b)(6). We hold that the collection of DNA samples of felons pursuant to the DNA Act is reasonable and not unconstitutional. Accordingly, we affirm.

DNA Act

In 1997, the General Assembly enacted the "DNA Detection of Sexual and Violent Offenders Act," codified at Ark.Code Ann. § 12-12-1101 (Repl.1999). The purpose of the DNA Act is to assist in criminal investigations, to exclude individuals who are the subjects of criminal investigations or prosecutions, and to deter and detect recidivist acts. See Ark.Code Ann. § 12-12-1102(1), (3) (Repl.2003).

In 2003, the General Assembly renamed the Act the "State Convicted Offender DNA Database Act," see Ark.Code Ann. § 12-12-1101 (Repl.2003), and amended it to provide for DNA testing of all individuals convicted of all "qualifying offenses." Ark.Code Ann. § 12-12-1109(a) (Repl. 2003). A "qualifying offense," in pertinent part, means "any felony offense as defined in the Arkansas Criminal Code." Ark.Code Ann. § 12-12-1103(9) (Repl.2003). Under the Act, any person adjudicated guilty of a felony is required to have a DNA sample drawn upon intake to confinement, as a condition of any disposition that does not require confinement, or, if already confined, immediately after sentencing. See Ark.Code Ann. § 12-12-1109(a).

DNA samples are sent to the State Crime Laboratory, where they undergo typing analysis and are stored on the State DNA Database. See Ark.Code Ann. § 12-12-1112(a)(1) (Repl.2003). In addition to storing samples obtained from offenders, the State Crime Lab stores DNA records related to crime scene evidence, unidentified persons or body parts, and relatives of missing persons. See Ark.Code Ann. § 12-12-1105(b) (Repl.2003). Further, the State Crime Lab may include the offender's DNA records in an anonymous population database compiled for statistical purposes. See Ark.Code Ann. § 12-12-1112(d) (Repl.2003). The State Crime Lab transmits DNA records to the Federal Bureau of Investigation for storage and maintenance in CODIS,¹ the FBI's national DNA identification system that allows the storage and exchange of DNA records submitted by state and local forensic laboratories. See Ark.Code Ann. §§ 12-12-1105(a)(2) & 12-12-1103(3)(A) (Repl.2003).

Fourth Amendment Challenge

Polston argues that the DNA testing of non-violent or non-sexual offenders pursuant to the DNA Database violates Fourth Amendment rights against unreasonable searches and seizures. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." "The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their discretion." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 613-14, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). It is well settled that the taking of blood by a law enforcement officer amounts to a Fourth Amendment search and seizure. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Haynes v. State, 354 Ark. 514, 127 S.W.3d 456 (2003); Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). However, only those searches and seizures that are deemed unreasonable are proscribed by the Fourth Amendment. Skinner, 489 U.S. at 619, 109 S.Ct. 1402. What is reasonable "`depends on all of the circumstances surrounding the search or seizure and the nature of the search and seizure itself.'" Id. (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)). "Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

The State concedes that the drawing of DNA pursuant to the DNA Act is a search for the purposes of the Fourth Amendment; however, the State argues that the search is constitutional for two independent reasons. The State first argues that the DNA Act is constitutional because the collection of a DNA sample from non-violent felons is a "special needs" search that is reasonable even in the absence of individualized suspicion.² Additionally, the State argues that even if the collection of a DNA sample from non-violent felons is not a "special needs" search, it is nonetheless constitutional because it is reasonable under the totality of the circumstances.

The United States Supreme Court has not addressed the issue of whether the DNA testing of non-violent offenders is an unreasonable search and seizure under the Fourth Amendment. Courts that have reviewed the constitutionality of DNA collection statutes have used differing approaches in addressing a Fourth Amendment challenge. Some courts have determined that the collection of DNA samples from offenders falls within the "special needs" exception. See, e.g., Green v. Berge, 354 F.3d 675 (7th Cir.2004); United States v. Kimler, 335 F.3d 1132 (10th Cir.2003); Roe v. Marcotte, 193 F.3d 72 (2d Cir.1999); Vore v. United States Dep't of Justice, 281 F.Supp.2d 1129 (D.Ariz.2003); Miller v. United States Parole Comm'n, 259 F.Supp.2d 1166 (D.Kan. 2003); United States v. Sczubelek, 255 F.Supp.2d 315 (D.Del.2003); United States v. Reynard, 220 F.Supp.2d 1142 (S.D.Cal.2002); State v. Martinez, 276 Kan. 527, 78 P.3d 769 (2003); State v. Olivas, 122 Wash.2d 73, 856 P.2d 1076 (1993); State v. Surge, 122 Wash.App. 448, 94 P.3d 345 (Wash.Ct.App.2004); State v. Steele, 155 Ohio App.3d 659, 802 N.E.2d 1127 (2003); In re D.L.C., 124 S.W.3d 354 (Tex.Ct.App.2003). Other courts have used the totality-of-the-circumstances approach, weighing the interests of the State and those offenders involved. See, e.g., United States v. Kincade, 379 F.3d 813 (9th Cir.2004); Groceman v. United States Dep't of Justice, 354 F.3d 411 (5th Cir. 2004); Jones v. Murray, 962 F.2d 302 (4th Cir.1992); United States v. Stegman, 295 F.Supp.2d 542 (D.Md.2003); Padgett v. Ferrero, 294 F.Supp.2d 1338 (N.D.Ga. 2003); Shelton v. Gudmanson, 934 F.Supp. 1048 (W.D.Wis.1996); Kruger v. Erickson, 875 F.Supp. 583 (D.Minn.1995); Sanders v. Coman, 864 F.Supp. 496 (E.D.N.C.1994); Ryncarz v. Eikenberry, 824 F.Supp. 1493 (E.D.Wash.1993); In re Maricopa County Juvenile Action, 187 Ariz. 419, 930 P.2d 496 (Ct.App.1996); People v. King, 82 Cal.App.4th 1363, 99 Cal.Rptr.2d 220 (2000); L.S. v. State, 805 So.2d 1004 (Fla.Dist.Ct.App.2001); Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085 (1999), cert. denied, 528 U.S. 1073, 120 S.Ct. 785, 145 L.Ed.2d 663 (2000); Cooper v. Gammon, 943 S.W.2d 699 (Mo.Ct.App.1997); Gaines v. State, 116 Nev. 359, 998 P.2d 166 (2000); State ex rel. Juv. Dep't v. Orozco, 129 Or.App. 148, 878 P.2d 432 (1994); Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769 (2000), cert. denied, 531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000); Doles v. State, 994 P.2d 315 (Wyo.1999).

We agree with those courts that have adopted the totality-of-the-circumstances test when asked to determine whether a DNA collection statute constitutes an unreasonable search and seizure under the Fourth Amendment. Accordingly, in this case, we need not address whether the DNA Act falls within the special-needs exception to the Fourth Amendment.

The question before us is whether a felon's expectation of privacy in the intrusive nature of the DNA test outweighs the State's interest in collecting DNA samples and maintaining a DNA database. As to the felon's expectation of privacy, the United States Supreme Court has recognized that "those who have suffered a lawful conviction" are subject to a "broad range of [restrictions] that might infringe constitutional rights in a free society." McKune v. Lile, 536 U.S. 24, 36, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). The United States Supreme Court has held that a convicted person has a diminished expectation of privacy in the penal context. See Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Further, the Court has held that...