Word v. U.S. Probation Dept., C/A No. 3: 05-2689-GRA.

• Decision Date: 13 July 2006
• Docket Number: C/A No. 3: 05-2689-GRA.
• Citation: 439 F.Supp.2d 497
• Parties: Jerry WORD, Plaintiff, v. UNITED STATES PROBATION DEPARTMENT, Defendant.
• Court: U.S. District Court — District of South Carolina

439 F.Supp.2d 497

Jerry WORD, Plaintiff, v. UNITED STATES PROBATION DEPARTMENT, Defendant.

C/A No. 3: 05-2689-GRA.

United States District Court, D. South Carolina.

July 13, 2006.

Patrick J. Flynn, USC School of Law, Columbia, SC, for Plaintiff.

Barbara Murcier Bowens, U.S. Attorneys Office, Columbia, SC, for Defendant.

ORDER

G. ROSS ANDERSON, JR., District Judge.

The plaintiff, Jerry Word, initiated this action alleging that the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135b ("the DNA Act") violates the warrant requirement of the Fourth Amendment to the United States Constitution; violates the special needs exception to the warrant requirement in violation of the Fourth Amendment to the United States Constitution and violates the Ex Post Facto Clause of Article 1, Section 9 of the Constitution. Pursuant to Federal Rules of Civil Procedure 12(b)(6), Defendant filed a motion to dismiss this action. Plaintiff filed a response to Defendant's Motion to Dismiss and a hearing was held before this Court on June 26, 2006. For the reasons set forth below, this Court grants Defendant's motion.

I. Background

A. Statutory History

On December 19, 2000, Congress passed the DNA Act in an attempt to provide a database for identifying perpetrators of unsolved crimes. This DNA Act is codified as 42 U.S.C. § 14135a (2001) and has been amended twice. The DNA Act, as amended, requires every convicted felon to provide a blood sample for submission into a database to be maintained by the Federal Bureau of Investigation ("FBI") regardless of the nature of the conviction.

The DNA Act requires individuals in custody and individuals on release, parole, or probation to give a DNA sample if they are, or have been, convicted of a qualifying federal offense. 42 U.S.C. § 14135a(a)(1), (2). The probation office is authorized by statute to collect DNA samples for those persons on release, parole or probation who have been convicted of any felony. 42 U.S.C. § 14135a(a)(2), (d). With the passage of the DNA Act, Congress also amended the supervised release statute, requiring the giving of a DNA sample as an explicit condition of supervised release. 18 U.S.C. § 3583(d). In the case of an individual on supervised release, parole, or probation, the probation office responsible for the supervision of such individual must arrange for the collection of the DNA sample. 42 U.S.C. § 14135a(a)(2). The probation office may use or authorize the use of such means as are reasonable necessary to detain, restrain, and collect a DNA sample from any individual who refuses to give a sample. 42 U.S.C. § 14135a(a)(4)(A). An individual who fails to give a DNA sample is guilty of a Class A misdemeanor. 42 U.S.C. § 14135a(a)(5).

By statute, once the collection facility obtains the DNA sample, it sends the completed test kit to the FBI laboratory for analysis and entry into the Combined DNA Index System ("CODIS"). 42 U.S.C. § 14135a(c)(2), §§ 14132(a), 14135a(b); see H.R.Rep. No. 106-900(I) (Sept. 26, 2000), 2000 WL 1420163, at *26-27. CODIS is an indexing system created by the FBI in response to the congressional passage of the Violent Crime Control and Law Enforcement Act, 42 U.S.C. §§ 13701-14223 (1994) ("Crime Control Act").

The DNA Act strictly limits the permissible uses of the DNA information obtained from the DNA test to be used only for purposes specified in the Crime Control Act. 42 U.S.C. § 14135e(b). The Crime Control Act limits the disclosure of the test results to criminal justice agencies for law enforcement identification purposes, for use in judicial proceedings, and for criminal defense purposes to a defendant. 42 U.S.C. § 14132(b)(3). The DNA Act penalizes the disclosure of the sample or result to a person without authorization to receive it or the obtaining of a sample or result without authorization. 42 U.S.C. § 14135e(c). In addition, the DNA Act provides for the expungement of DNA records from CODIS when a conviction for a qualifying offense is overturned. 42 U.S.C. § 14132(d).

The DNA information in CODIS serves as the "genetic fingerprint" of the offender or unidentified individual; it is specifically designed not to convey any other information about the person, such as physical or medical characteristics. See H.R.Rep. No. 106-900(I), at *25, *27. The main purpose of the DNA Act is to assist federal, state, and local law enforcement authorities in solving past and future crimes, by "authorizing collection, analysis, and indexing of DNA samples from persons convicted of Federal crimes ..." Id. at * 8.

B. Factual Background

On May 16, 1997, the plaintiff, Jerry Word, was convicted in the Eastern District of Michigan as a Felon in Possession of a Firearm pursuant to Title 18 U.S.C. § 922(g)(1). The plaintiff was sentenced to ten years confinement and three years Supervised Release on September 10, 1997. On March 8, 2005, the plaintiff was released from custody and placed on supervised release in the District of South Carolina.

Pursuant to the DNA Act, the plaintiff was ordered by the United States Probation Office, District of South Carolina to report to the office to submit a blood sample for inclusion in CODIS. See Amended Compl. ¶ 9. The plaintiff objected to the request to provide a DNA sample. Id. ¶ 10. On September 16, 2005, the plaintiff filed a pro se petition seeking a temporary restraining order ("TRO") to prevent the defendants from requiring that he provide a DNA sample. Id. ¶ 13. On September 21, 2005, the Court filed an Order recommending denial of the TRO and Preliminary Injunction. Id. ¶ 14. Two days later, The plaintiff appeared at the United States Probation Department to provide the blood sample, but officials refrained pending the resolution of this case. Id. ¶ 15.

II. Standards of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the alleged facts. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004) (citing Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference into the complaint, and matters about which the Court may take judicial notice. E.E.O.C. v. St. Francis Xavier Parochial School, 117 F.3d 621, 624-25 (D.C.Cir.1997). The Court will dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80.

III. Legal Analysis

The plaintiffs complaint sets forth three causes of action. Amended Compl. ¶¶ 16-40. These claims assert that it is illegal to demand the plaintiffs DNA while he was on probation, because the Government's use of the DNA Act (1) deprives the plaintiff of his Fourth Amendment protection from unreasonable searches and seizure by violating the warrant requirement, (2) fails to "fit within the special needs exception to the warrant requirement," and (3) violates the Ex Post Facto Clause of the United States Constitution, as applied to the plaintiff.

The Court begins its analysis by discussing whether the DNA Act violates any constitutional or statutory rights of the plaintiff.

A. Fourth Amendment Claim

The plaintiff first contends that the DNA Act violates the Fourth Amendment's guarantee to be free from unreasonable searches and seizures. "The Courts has [sic] found this generally means an individual cannot be searched absent a warrant based upon probable cause." Amended Compl. ¶ 17. 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, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. It is not disputed that the involuntary taking of a DNA sample constitutes a search under the Fourth Amendment. See Skinner v Railway Labor Executives' Ass'n, 489 U.S. 602, 618, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ("the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches"). Moreover, it is undisputed that a warrant was never issued requiring the plaintiff to provide a DNA sample.

It is undisputed that the Act allows the government to withdraw blood samples from qualified offenders without a warrant, probable cause, or even individualized suspicion. It is undisputed that plaintiff is a qualified offender. Moreover, it is undisputed that taking a blood sample constitutes a search under the Fourth Amendment. See Skinner, 489 U.S. at 616, 109 S.Ct. 1402; Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Nonetheless, "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. 1402, 103 L.Ed.2d 639.

This Court is bound by the Fourth Circuit's opinion in Jones v. Murray, 962 F.2d 302 (4th Cir.1992), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992). "In Jones, the Fourth Circuit upheld the constitutionality of a Virginia statute requiring incarcerated felons to provide the Commonwealth with a blood sample for DNA analysis...