Nicholas v. Goord

LYNCH, District Judge, concurring.

I fully join in Chief Judge Walker’s thorough opinion for the court. Though reluc *678 tant to burden the record with still more writing, I add just a few words.'

The genius of the common-law system of adjudication is that the decisions of courts constitute precedent, not the opinions by which courts attempt to explain those decisions. This principle does not excuse courts from giving the best reasoning they can to explain their outcomes, nor does it refute the insight that if a result cannot be adequately explained, it is probably wrong. Yet sometimes the consistent results of repeated judicial encounters with the same problem are more reliable than the analy-ses in the resulting opinions. This is particularly so when lower courts reify the “doctrines” or methodologies adopted by the Supreme Court in answering difficult questions of law.

This may be one of those situations. I am wholly confident in the correctness of the unanimous conclusion of the federal appellate courts upholding mandatory DNA sampling of convicted prisoners against Fourth Amendment challenges. I am less confident that either the “special needs” or “reasonableness” approaches that have divided the courts quite capture the reasons for this result.

Starting from the basics: the Fourth Amendment’s text outlaws “unreasonable” searches and seizures. U.S. Const, amend. TV. It follows then that the ultimate question in assessing the constitutionality of searches and seizures is whether they are “reasonable.” However, the text of the Amendment also references “warrants” and “probable cause,” and while the text does not quite so command, the Supreme Court has long interpreted the Amendment as presumptively requiring, in the typical search scenario, a warrant supported by probable cause. See Henry v. United States, 361 U.S. 98, 100 , 80 S.Ct. 168 , 4 L.Ed.2d 134 (1959) (noting that “it is the command of the Fourth Amendment that no warrants for either searches or arrests shall issue except upon probable' cause” and that “[t]he requirement of probable cause has roots that are deep in our history”). Warrantless searches are, in theory, presumptively unreasonable, though a great many exceptions permit warrantless searches where the circumstances are sufficiently exigent to rebut the presumption and establish reasonableness. United States v. Medina, 944 F.2d 60, 68 (2d Cir.1991); see, e.g., United States v. Robinson, 414 U.S. 218, 236 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) (holding that a full search of a person incident to “full custody arrest” may be undertaken); Draper v. United States, 358 U.S. 307, 310-11 , 79 S.Ct. 329 , 3 L.Ed.2d 327 (1959) (finding that warrantless search and seizure subsequent to arrest had probable cause and reasonable grounds, and was thus allowed). Other searches are permissible even in the absence of probable cause, especially outside the “typical” context of searches by law-enforcement officers for contraband or for evidence of crime. See, e.g., Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990) (determining that a sobriety checkpoint aimed at removing drunk drivers from the road was constitutional); New York v. Burger, 482 U.S. 691, 702 , 107 S.Ct. 2636, 96 . L.Ed.2d 601 (1987) (holding that warrantless administrative inspections of a closely regulated business fell within the warrant requirement exception). 1

I think it is reasonably clear what the warrant and probable-cause requirements *679 of the Fourth Amendment are trying to prevent. Just as, under the Fifth Amendment, Americans are not required to explain or justify themselves to the authorities or prove their innocence of crime, they are not required to surrender their privacy to demonstrate that they are not guilty of carrying contraband, or to display their possessions to assure the authorities that they are not holding evidence of their guilt. Rather, it is only when the authorities have good reason to believe that evidence will be found (the probable cause requirement), ideally demonstrated in advance to a judicial officer (the warrant requirement), that the citizen’s privacy can be invaded.

Experience has shown the wisdom of this approach. Categorical rules are helpful because an unbounded ad hoc judgment of the “reasonableness” of governmental action will often tempt judges to uphold actions that, particularly with the benefit of hindsight, prove valuable in accomplishing social goals. The Supreme Court has thus been wary of any ad hoc “reasonableness” review, lest these standards be whittled away even further by conclusions that in various circumstances it is “reasonable” to permit precisely what the Amendment seeks to prohibit. See Oliver v. United States, 466 U.S. 170, 181 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984) (“Th[e] [Supreme] Court repeatedly has acknowledged the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to differing factual circumstances.”)

One categorical rule that the Court has used to permit warrantless searches that seem “reasonable,” or even searches without probable cause, is to define those searches as being justified by “special needs” of the Government. City of Indianapolis v. Edmond, 531 U.S. 32, 37 , 121 S.Ct. 447 , 148 L.Ed.2d 333 (2000). However, this formulation too is subject to abuse. A “special need” can be found as easily as the “reasonableness” of a governmental, action, whenever it appears that compliance with the normal restraint on governmental searches is inconvenient or poses an obstacle to the legitimate goals of fighting crime. Accordingly, the Court has mostly upheld government searches under the “special needs” rubric where the principal “need” is not connected to law enforcement, and has even suggested that a special need must be something “other than crime detection.” Chandler v. Miller, 520 U.S. 305, 314 , 117 S.Ct. 1295 , 137 L.Ed.2d 513 (1997).- Like the reluctance to descend into ad hoc judgments of “reasonableness,” the Court’s limitation of the “special needs” doctrine is based on the need to maintain the ordinary standards for ordinary searches.

Nevertheless, drawing the line between crime control and civil governmental purposes, let alone a distinction between “ordinary law-enforcement needs” and “special” crime-control objectives, is difficult. Thus, the line is thin between law enforcement’s looking for drunk drivers to protect the public, and looking for evidence of drunk driving to support a criminal prosecution.

Here, the obstacle to a “special needs” interpretation is that the only substantial reason to collect DNA samples from convicts is, in the broad sense, to enforce the criminal law and to obtain evidence that may one day be useful in solving past or future crimes. .Thus, if “special needs” analysis is precluded whenever an intrusion into privacy serves a law enforcement rationale, the “special needs” doctrine could not apply here.

It seems to me that the “special needs” and “reasonableness” tests are both efforts to accomplish the same goal. “Reasonableness,” the ultimate standard under the *680 Fourth Amendment, is not the usual way of evaluating a search because we have some clear and sensible rules for evaluating ordinary searches and seizures which do not ordinarily allow judges simply to declare a search reasonable when those rules have not been followed. However, in certain circumstances, those rules do not appear to apply — not because the rules are inconvenient to follow, but because in such situations, the rules are not needed to prevent the mischief that they are designed to prevent. It is in those circumstances — circumstances of “special needs,” if you will — that a more general standard of reasonableness is applied.

Without question, a blood test, and even a less intrusive cheek swab, for purposes of obtaining a DNA sample is a “search.” Skinner v. Ry. Labor Executives Ass’n, 489 U.S. 602, 616 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989); Schmerber v. California, 384 U.S. 757, 767 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966). If the police are trying to identify the perpetrator of a crime, they could not, consistent with the guarantees of the Fourth Amendment, require everyone in the neighborhood to submit to such procedures. Probable cause and a warrant would be required because to require less would be to require citizens to surrender their privacy to prove their innocence, rather than requiring the authorities to justify invading privacy by showing a good reason to believe that the citizen harbored evidence of a crime. Deciding whether probable cause exists no doubt is very close to deciding whether, on the given facts, it is “reasonable” to conduct the search. Still, the requirement of probable cause channels the inquiry to the strength of the evidence, and away from a generalized assessment of whether, on balance, it might not be a good thing to conduct the search. That might well be so even in a prison context: just because prisoners enjoy, in many respects, a lesser expectation of privacy than ordinary because of the very nature of imprisonment, does not necessarily mean that dragnet blood tests would be permitted simply because the “neighborhood” where the crime was committed is a prison.

However, New York’s statute, like those of every other state in the union, does not controvert these principles. It does not seek evidence to solve a particular crime, nor does it require prisoners to exonerate themselves by providing evidence that the state has no good reason to think will be there. Instead, New York requires all those who are convicted of certain crimes to provide information to be retained in a data base. See N.Y. Exec. Law § 995 et seq. (McKinney 1999). Having to provide such identifying information in the context of the criminal justice system is not at all unheard of. Although arrested persons may not ordinarily be interrogated without being given Miranda warnings, questions aimed at eliciting identifying or “pedigree” information is permitted without warnings, even though the answers to such questions may become evidence either of the particular crime for which the suspect was arrested, or of some past or future crime not yet under investigation. Pennsylvania v. Muniz, 496 U.S. 582, 590 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990); Rosa v. McCray, 396 F.3d 210, 221 (2d Cir.2005). The purpose is “law enforcement,” but it is not the usual purpose of interrogation. Similarly, fingerprints may be forcibly taken from arrested persons, though this too is beyond the power of the police with respect to ordinary citizens, whose prints may only be obtained by a grand jury. See United States v. Dionisio, 410 U.S. 1, 3-4 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973) (stating that fingerprints may be compelled by a grand jury).

It seems to me, therefore, that the question here is not the usual one that governs *681 searches and seizures — i.e., has the government adequately justified utilizing an investigative method that invades privacy by showing that there is good reason to believe that evidence of crime will be found? Rather, it is whether the government has adequately justified requiring prisoners, who have been convicted of crime, to surrender information that is being sought not to solve a crime, but rather to maintain a data bank of information about people who have committed crimes in the past. Thus, while a blood test or cheek swab is, in the abstract, a “search,” when carried out under these circumstances, the search does not implicate the concerns that motivate the Fourth Amendment’s usual rules and presumptions. It is for that reason that I am content to call this a “special need,” even though its purpose relates to the enforcement of the criminal law, and even though the context is somewhat distinct from the sorts of situations in which the Supreme Court has applied that term.

Application of that standard opens the door to a balancing test. It is noteworthy that the bulk of the court’s opinion is devoted to explicating the relevant Supreme Court doctrines, developed in cases that are quite unlike this one, in order to decide what test to apply. With that resolved, it takes far fewer pages to conclude that the statute passes. Similarly, the split among appellate courts is over methodology, not ultimate conclusions. Although some judges have dissented, no court of appeals has invalidated a statute of this kind. I believe that the court’s opinion offers a correct analysis, and I fully join it. I am even more confident, however, of the correctness of the decision we reach, which is consistent with the judgment of the legislatures of every state in the Union, 2 and of every court of appeals that has addressed the issue.

. For a more comprehensive overview of permissible searches without probable cause, see supra pages 660 - 661.

. For an overview of each state’s DNA database laws, see Legislation & State Statutes, http://www.dnaresource .com/bilL tracking-list .him (last visited Nov. 22, 2005).