Vanderlinden v. State of Kan., 92-1044-DES

• Decision Date: 24 January 1995
• Docket Number: 91-3342-DES and 92-3230-DES.,No. 92-1044-DES,92-1044-DES
• Citation: 874 F. Supp. 1210
• Court: U.S. District Court — District of Kansas
• Parties: Susan Diane VANDERLINDEN, et al., Plaintiffs, v. STATE OF KANSAS, et al., Defendants. Gary Lee McCOLPIN, Plaintiff, v. Joan FINNEY, et al., Defendants. Robert HUTCHCRAFT, et al., Plaintiffs, v. I & I PETERS, et al., Defendants.

874 F. Supp. 1210

Susan Diane VANDERLINDEN, et al., Plaintiffs, v. STATE OF KANSAS, et al., Defendants.

Gary Lee McCOLPIN, Plaintiff, v. Joan FINNEY, et al., Defendants.

Robert HUTCHCRAFT, et al., Plaintiffs, v. I & I PETERS, et al., Defendants.

Nos. 92-1044-DES, 91-3342-DES and 92-3230-DES.

United States District Court, D. Kansas.

January 24, 1995.

COPYRIGHT MATERIAL OMITTED

Roger L. Falk, Law Office of Roger L. Falk, Wichita, KS, Joseph D. Johnson, Joseph D. Johnson, Chtd., Topeka, KS, Daniel E. Monnat, Monnat & Spurrier, Chartered, Wichita, KS, Linda L. Eckelman, Dodge City, KS, for Susan Diane Vanderlinden.

Roger L. Falk, Law Office of Roger L. Falk, Wichita, KS, for James E. Taylor.

Martha M. Snyder, Topeka, KS, for State of Kan., Kan. Bureau of Investigation, David R. McKune, Rex Prior.

Gary Lee McColpin, pro se.

George VanBebber, pro se.

Thomas Harold Kennon, pro se.

Kristy L. Hiebert, Office of the Atty. Gen., Topeka, KS, for Joan Finney, Gary Stotts, Richard Koerner, Raymond (NMI) Roberts, David R. McKune, Rudy Stupar, John Callison, Randy Buford, Phyllis Warder, Robert Davenport.

Robert J. Nugent, Office of Revisor of Statutes, Topeka, KS, Robert A. Coldsnow, Topeka, KS, for Paul "Bud" Burke, Marvin W. Barkis.

Robert R. Hutchcraft, pro se.

William Frank Schlicher, pro se.

James Edward Roberts, Jr., pro se.

David Woodward, pro se.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on three consolidated actions challenging the constitutionality and execution of Kansas Statutes Annotated (K.S.A.) 21-2511, which provides for the collection of blood and saliva specimens from certain convicted felons for use by the Kansas Bureau of Investigation in preparing "genetic marker groupings," primarily deoxyribonucleic acid (DNA) analyses, to detect and deter the commission of crimes by recidivists. Over 2,600 Kansas inmates are subject to the provisions of K.S.A. 21-2511, and by June 1, 1993, the Kansas Department of Corrections had collected specimens from 2,657 inmates; approximately six of these collections were performed forcibly.

The court heard argument in this matter, and the parties were permitted to submit additional briefs. Only the defendants have submitted a brief. Having considered the record, the court makes the following findings and order.

Procedural history

The plaintiffs in Case No. 92-1044, Susan Vanderlinden and James Taylor, commenced this action in the United States District Court for the District of Kansas at Wichita, Kansas. The matter was transferred to the undersigned for consolidation with two actions filed by inmates proceeding pro se, Case No. 91-3342 and Case No. 92-3230. After determining that the three actions concern a common question of law, the court issued an Order consolidating the three matters.

The plaintiffs challenge the Kansas statute on several grounds, claiming it violates the Fourth Amendment, impermissibly infringes on inmates' privacy interests, violates procedural due process, constitutes cruel and unusual punishment, violates the ex post facto clause, is a bill of attainder, and violates equal protection.

Discussion

Background

Forensic DNA typing has rapidly gained approval as admissible, even decisive, evidence concerning tissue material left at a crime scene. Although the scientific debate on the reliability of such evidence remains unsettled, the use of DNA typing has been approved by the Kansas Supreme Court. See State v. Dykes, 847 P.2d 1214, 252 Kan. 556 (1992) (DNA profiling meets standard of general acceptance in scientific community but may be inadmissible on grounds of relevancy, prejudice, contamination, and the like); Smith v. Deppish, 807 P.2d 144, 248 Kan. 217 (1991) (DNA print testing and Restriction Fragment Link Polymorphism Analysis admissible, recognized as reliable and generally accepted).

Statutes permitting the collection and analysis of blood and saliva specimens from convicted felons have been widely adopted in recent years, and over twenty states now have such laws. Although the body of case law which has developed in response to challenges to these laws is small, it reflects a uniform view that the statutes are generally valid. In the earliest decision, Jones v. Murray, 962 F.2d 302 (4th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992), the United States Court of Appeals for the Fourth Circuit upheld a 1990 Virginia statute requiring incarcerated felons to provide blood specimens for the creation of a DNA databank to assist law enforcement. The Jones court found that the statute did not violate the Fourth Amendment, but it rejected on ex post facto grounds the portion of the statute that provided that submission to the blood test could be required as a condition of release on mandatory parole.

Following Jones, the United States District Court for the Western District of Virginia rejected inmates' challenge on ex post facto and due process grounds to Virginia prison regulations which authorized the withholding of good conduct time from inmates who refused to provide blood samples for DNA analysis. Ewell v. Murray, 813 F.Supp. 1180 (W.D.Va.1993).

Federal courts in North Carolina and Washington have also upheld state statutes permitting the collection of blood samples for DNA identification and blood grouping tests from inmates convicted of certain violent offenses and sex offenses. Sanders v. Coman, 864 F.Supp. 496 (E.D.N.C.1994); Ryncarz v. Eikenberry, 824 F.Supp. 1493 (E.D.Wash. 1993).

The Kansas statute

Kansas statute 21-2511 applies to those convicted, or adjudicated as juveniles, of murder or certain sex offenses and provides for the submission of blood and saliva specimens to the Kansas Bureau of Investigation. Under the statute, the samples are to be gathered by persons with specified medical training. The results of genetic analyses on these samples are to be maintained by the Kansas Bureau of Investigation as the central repository, and the information may be disseminated only to law enforcement officers and prosecutorial agencies.

The court's analysis in the present action begins from the principle that a state statute is presumed constitutional. Eaton v. Jarvis, 965 F.2d 922, 929 (10th Cir.1992) (citing McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969)).

Plaintiffs first argue the Kansas statute violates the Fourth Amendment by permitting the unreasonable search and seizure of an inmate in the absence of any individualized suspicion which might justify the intrusion.

It is settled, and the parties agree, that a blood test is a search. Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966) (state could search driver suspected of drunken driving by performing blood test; such a test is "a commonplace in these days of periodic physical examinations"). The relevant determination, then, is whether the sample gathering is a reasonable search under the circumstances. Defendants argue the balance must be struck in favor of the government, given the public interest in law enforcement, while the plaintiffs contend the search is unreasonable as it is unsupported by any particularized suspicion warranting the intrusion involved.

The court believes the requirement of individualized suspicion urged by the plaintiffs has been rejected, at least in the context of those persons whose liberty interests have been reduced by their conviction, by the United States Supreme Court. For example, searches of inmates' prison cells are permissible under the Fourth Amendment and require no threshold of individualized suspicion. Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393 (1984). More intrusive procedures involving detainees likewise have been found to pass muster under the Fourth Amendment. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Court upheld the practice of conducting body cavity searches of pretrial detainees following contact visitation even in the absence of any particularized suspicion. While these permissible searches have been justified as necessary to preserve institutional order, a willingness to countenance intrusion to reduce recidivism can also be gleaned from the Court's decisions. See Griffin v. Wisconsin, 483 U.S. 868, 880, 107 S.Ct. 3164, 3172, 97 L.Ed.2d 709 (1987) (permitting search of probationer's home without warrant and stating probationer "is more likely than the ordinary citizen to violate the law.")

The United States Court of Appeals for the Tenth Circuit has also rejected a need for individualized suspicion in some circumstances. In Dunn v. White, 880 F.2d 1188 (10th Cir.1989), the Tenth Circuit considered a prisoner's challenge to a nonconsensual blood test to detect the presence of the Human Immunodeficiency Virus (HIV). After concluding the prison had identified a significant interest which outweighed the inmate's expectation of privacy, the Court of Appeals stated:

Although the government in these circumstances is not required to demonstrate individualized suspicion, it still must demonstrate that the search is a "`sufficiently productive mechanism to justify its intrusion upon Fourth Amendment interests.'" citations omitted. Dunn, 880 F.2d at 1196.

Therefore, even if the court concludes individualized suspicion is not required, it must determine whether the search in question is reasonable. In this regard, the court finds persuasive the Fourth Circuit's analogy of the blood and saliva gathering at issue here to traditional identification techniques, such as fingerprinting. In Jones v. Murray, supra, the Fourth Circuit states:

When a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which

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