Petition for Writ of Certiorari — Boulineau v. Donald

Supreme Court, U.S.

FILED

041616 JUN 2 - 2005

OFFICE OF THE CLEAK

No.

IN THE

Supreme Court of the Gnited States

PAUL N. BOULINEAU AND JOHN W. BURNEY.

Petitioners,

Vv.

JAMES E. DONALD, COMMISSIONER OF THE GEORGIA

DEPARTMENT OF CORRECTIONS, GEORGIA BUREAU OF

INVESTIGATION, AND GEORGIA DEPARTMENT OF

CORRECTIONS,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

RICHARD H. DEANE, JR.

(Counsel of Record)

RANDALL M. HAWKINS

JONES DAY

1420 Peachtree Street, N.E.

Suite 800

Atlania, Georgia 30309

(404) 521-3939

Counsel for Petitioners

i

QUESTION PRESENTED

Does a state statute mandating the forced extraction of

DNA samples from all convicted felons while in custody for

law enforcement purposes without a warrant or any

individualized suspicion violate the search and seizure

provision of the Fourth Amendment?

il

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below were the following:

Boulineau, Paul N. (Appellant)

Burney, John W. (Appellant)

Donald, James E. (Appellee)

Ferrero, Joe (Defendant in

district court)

Georgia Bureau of

Investigation (Appellee)

Georgia Department of

Corrections (Appellee)

Padgett, Roy (Plaintiff in

district court)

Pettigrew. Frederick (Plaintiff-

Intervenor in district court)

Wetherington, Jim (Defendant

in district court)

TABLE OF CONTENTS

Page

| RC as i

PARTIES TO THE PROCEEDINGS ...0.......ccccccccecccccsecececes il

RU FI BNI nics cciiicttrccscissienstibinciedensin cai. V

PETITION FOR A WRIT OF CERTIORARI.........cccccccccc0-. l

SS TTS LT ISLAM Ke RR REHEAT l

co l

PERTINENT CONSTITUTIONAL AND

RUMP REND WUE EW MMO IIOO oc cncsnccacnscceccrscvdsséan,ssasaseunseoesen: l

MPR RIPME ED COP RMS CAGE oon ccccssececcccnacnasseecscenennsce l

REASONS FOR GRANTING THE WRIT.........ccccccccoseceeees 5

1. THE LOWER COURTS ARE SPLIT ON THE

PROPER FOURTH AMENDMENT ANALYSIS

TO APPLY TO DNA COLLECTION STATUTES......6

Il. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S DECISIONS IN C/TY OF

INDIANAPOLIS v. EDMOND AND FERGUSON

Ve Gee MT GP MMORE ITTY oss ccaccnssenencocsssvsnnisniccnonsenee 7

lil. THE DECISION BELOW EXPANDS UNITED

STATES v. KNIGHTS BEYOND ITS

CONSTITUTIONAL LIMITS .................cccccccccsecescoses 10

IV. THE LOWER COURT’S APPLICATION OF

THE KNIGHTS ANALYSIS TO THE

SUSPICIONLESS SEARCHES AUTHORIZED

BY THE STATUTE CONTRADICTS THE

INTENT OF THE FRAMERS OF THE FOURTH

oe EE EETES SEAT ST Se REE 13

A. The Framers Intended To Protect

Individuals From Suspicionless Searches

Conducted Pursuant To General Warrants .......... 13

IV

TABLE OF CONTENTS

(Continued)

Page

B. The Statute Authorizes Suspicionless

Searches Similar To Those Authorized By

RET MID aici dtainbiibiensecdicaciaedsincenatycins a

eae AE iene ciniecalchicasclislapanthdactieatesnienaainiet intakes: 15

erect

Vv

TABLE OF AUTHORITIES

Page

Cases

Bell v. Wolfish, 441 U.S. 520 1: PERRO act ee 9,10

Boling v. Romer, 101 F.3d 1336 (10th Cir. POTD stcekdishpichianns 7

Chandler yv. Miller. 520 U.S. 305 Pe Riniilosinueataeees 6

City of Indianapolis v. Edmond.

PE RLAk Ae GE siccsitiebbisneiaesa lane 2.8.9

Ferguson v. City of Charleston,

Fae I GE cai eee 2, 8,9, 12

Green v. Berge, 354 F.3d 675 (7th Cir. | ETT, 7

Groceman v. United States Dep't of Justice,

354 F.3d 411 (Sth Cir. 2004) oo... ccsesscescescscscsscoscoecoesees... 7

Hudson v. Palmer, 468 U.S. 517 SE icideidiselatieanae sl 9,10

Jones v. Murray, 962 F.2d 302 (4th Cir.),

cert. denied, 506 U.S. 977 (1992)....cccecccsccsseccoceseccocesee.n. 6-7

Padgett v. Donald, 401 F.3d 1273 v.ceeseccsecsessesesecssecseeeeessec..... 7

Padgett v. Ferrero, 294 F. on eb FS SSR EE ]

Roe v. Marcotte, 193 F:3d 72 (2d Cir. a, ee NCE ER 7

Turner v. Safley, 482 U.S. 78 cj SSN RO NT 10

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

cert. denied, 540 U.S. 1083 2. | NEG Are ORO: MORE 7

United States v. Kincade, 379 F.3d 813 (9th Cir.

2004), cert. denied, US. __, |

73 U.S.L.W. 3555 (U.S. Mar. 21, 2005)

POR BTA N piicissitii einen eee Naas 7

United States v. Knights,

PIO IA. EEF GID caisicctisesiinckicinae 24 6, 7,11, 12, 13

United States v. Sczubelek,

EF OG UTS COCR, BOO) os eiccsidiccceeiic ce ars 6,7

Vernonia School District 47J v. Acton,

PE SA CRIED scapiSicetindescnicintin dati kere ata 14

Constitutional Provisions

OD. Comat, anne BY os cosssassssicusittasictiseutit gi ]

——— ee

vi

TABLE OF AUTHORITIES

(Continued)

Page

Virginia Declaration of Rights of 1776, Art. X ........ce eee 13

Federal Statutes

20 UB... F TAS 6) cstinntiemnnitinaamanaen l

State Statutes

OCGA. § 26-9 GR. nunniimnmnmnaeaiae 8.9

COC ALA, 8 Bo Prensensrisicstntenscietisiaiaaannae 3.9. 10

OCALA, § FIT Pessicitiniieteneninnmnnaae l

Other Authorities

Mark Hansen, DNA Dragnet, ABA JOURNAL. May

DIOGO Fe censerstninnicamntiiscinntianinigppimiandiiiaagineimiae 2

Leonard W. Levy, ORIGINS OF THE BILL OF

PETS (SFIS a ctnenisenrevivmnciisiascsinenetlimaisiinaiabatetiiaiaiel 13

Potter Stewart, The Road To Mapp v. Ohio And

Beyond: The Origins, Development and Future

of the Exclusionary Rule in Search-And-Seizure

Cases, 83 COLUM. L. REV. 1365 (1983) .............00. 13,14

2 Joseph Story, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES

CFR OE GEG E D cacsntssctivtsineinenbcitenntinhisiiiimeniamamaa 13

Samnns D. Wainem, ECA GGG D ccnnesssassinnresscunintnnnnanteninisteicanieiae l

PETITION FOR A WRIT OF CERTIORARI

Paul N. Boulinezu and John W. Burney respegtfully

petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Eleventh Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at Padgett

v. Donald, 401 F.3d 1273 (Pet. App. la-15a). The opinion of

the United States District Court for the Northern District of

Georgia is reported at Padgett v. Ferrero, 294 F. Supp. 2d

1338 (Pet. App. 16a-25a).

JURISDICTION

The court of appeals entered judgment on March 4, 2005.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourth Amendment to the United States Constitution

provides:

The 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 Warrant shall

issue, but upon probable cause, supported by Oath or

, affirmation, and particularly describing the place to be

searched, and the person or things to be seized.

The pertinent provisions of the Official Code of Georgia

are reprinted in the appendix. (Pet. App. 26a-32a).

STATEMENT OF THE CASE

Deoxyribonucleic acid (“DNA”) “holds the very key to

the nature of living things.” James D. Watson, DNA, xi

(2003). In a very real sense, it is what makes a person what

he or she is, a unique individual. As the Georgia General

Assembly has recognized, “[g]enetic information is the u-

nique property of the individual . . .” O.C.G.A. § 33-54-1(1).

2

In this action, Petitioners Paul Boulineau and John Burney

challenge the constitutionality of a Georgia statute

authorizing the forced extraction of DNA samples for use as

evidence in any subsequent criminal investigation. See

O.C.G.A. § 24-4-60 ef seg. (the “Statute”) (Pet. App. 26a-

32a).

The Statute requires all convicted felons incarcerated in

State correctional facilities to provide a DNA sample to the

state for analysis and inclusion in the Georgia Bureau of

Investigation’s (“GBI”) DNA database for use by federal and

state investigators for law enforcement purposes. The

obtaining of a DNA sample under the Statute is a warrantless

search that is conducted without probable cause or even

reasonable suspicion. Moreover, those searches—and the

invasions of privacy attendant to such searches—are not

supported by any “special need” or other exception that

could exempt them from the warrant requirement. Balancing

the interests of the parties, the lower court concluded that

Petitioners’ expectation of privacy must yield to the state’s

interest in creating and maintaining a DNA database for law

enforcement purposes despite the fact that searches

conducted pursuant to the Statute are conducted without any

individualized suspicion whatsoever. Because this ruling |

contradicts the Court’s recent decisions in City of

Indianapolis v. Edmond, 531 U.S. 32 (2000). and Ferguson

v. City of Charleston, 532 U.S. 67 (2001), and runs counter

to the intent of the Framers in adopting the Fourth

Amendment, the ruling below warrants review.

Statement of Facts. The Facts of this case are

undisputed.

All 50 states and the federal government have statutes

authorizing the government to take DNA samples from

persons convicted of a crime, in some states, persons who

have merely been arrested. See Mark Hansen, DNA

Dragnet, ABA JOURNAL, May 2004, at 42. In 2000. the

Georgia General Assembly amended Georgia’s DNA

3

collection statute to require all convicted felons to provide a

DNA sample for inclusion in the state’s DNA database.

Specifically, the Statute requires:

[O]n and after July 1, 2000, any person convicted of a

felony and incarcerated in a state correctional facility shall

at the time of entering the prison system have a sample of

his or her blood, an oral swab, or a sample obtained from

a noninvasive procedure taken for DNA (deoxy-

ribonucleic acid) analysis to determine identification

characteristics specific to the person. The provisions and

requirements of this Code section shall also apply to any

person who has been convicted of a felony prior to July 1,

2000, and who currently is incarcerated in a state

correctional facility in [Georgia] for such offense.

O.C.G.A. § 24-4-60. (Pet. App. 26a).

The “identification characteristics” obtained through

analysis of DNA samples taken pursuant to the Statute are to

be stored in a database maintained by the GBI. /d (Pet.

App. 27a). The information stored in the database “shall be

made available directly to federal, state, and local law

enforcement officers upon a request made in furtherance of

an Official investigation of any criminal offense.” O.C.G.A.

§ 24-4-63(a). (Pet. App. 30a). Furthermore, “(tlhe name of

the convicted offender whose profile is contained in the data

bank may be related to any other data bases which are

constructed for law enforcement purposes and may be

disseminated only for law enforcement purposes.” O.C.G.A.

§ 24-4-63(b)(2). (Pet. App. 30a).

Petitioners Boulineau and Burney were convicted of

felonies prior to July 1, 2000 and were incarcerated at the

Men’s State Prison in Hardwick. Georgia as of that date.

During the pendency of this case before the district court, the

state planned to collect DNA samples from Boulineau and

Burney for analysis and inclusion in the GBI database

pursuant to the Statute. Prior to Burney’s release date, he

moved for an injunction to prevent the collection, analysis,

4

and inclusion of his DNA in the GBI database under the

Statute. By Order of the district court, Mr. Burney was

required to provide a DNA sample: however, his DNA will

not be analyzed or entered into the database pending the

outcome of his constitutional challenge in the present case.

By agreement of the parties. prior to Mr. Boulineau’s

release, he also provided a DNA sample, subject to the same

limitations precluding the analysis and inclusion of his DNA

information in the GBI DNA database. Both men. after

serving their sentences, have been released from state

custody.

The District Court. On July 15, 2001. Roy Padgett, an

inmate at the Men’s State Prison in Hardwick. Georgia.

proceeding pro se, commenced this action challenging the

constitutionality of the Statute. Petitioners Boulineau and

Burney intervened in the district court action, and counsel

was appointed. !

On September 3. 2002, Boulineau and Burney filed an

Amended Complaint seeking (1) an injunction preventing the

Defendants from taking DNA samples from them without

their consent, and (2) a declaration that the Statute is

unconstitutional. Boulineau and Burney challenged the

Statute as contrary to their Georgia and U.S. Constitutional

rights to be free from unreasonable searches and seizures as

well as their right to privacy.

In April 2003, the parties filed cross-motions for summary

judgment. Boulineau and Burney argued that because the

searches at issue are conducted without a warrant. probable

cause or individualized suspicion, the constitutionality of the

searches was to be evaluated under the “special needs”

doctrine. Moreover, because the Defendants could not

A third individual, Pettigrew, also intervened in the action.

Subsequently, Padgett and Pettigrew, who gave DNA samples which are

currently in the GBI DNA database, were dismissed from this action.

Neither Padgett nor Pettigrew is a party to this appeal.

Rreces

5

demonstrate that the searches were justified by a special need

beyond the ordinary need for law enforcement, the Statute

was unconstitutional. Finally, Boulineau and Burney argued

that even if their privacy interests were balanced against the

public’s generalized law enforcement interest. their privacy

interests outweighed the public’s interest in law

enforcement. The Defendants countered that the searches

authorized by the Statute were reasonable and. therefore.

constitutional because the public’s interest in law

enforcement outweighs the Plaintiffs’ privacy interest.

On December 10, 2003, the district court granted

summary judgment to Defendants. The district court’s

opinion is reported at Padgett v. Ferrero, 294 F. Supp. 2d

1338 (N.D. Ga. 2003) (Pet. App. 16a-25a). On December

23, 2003, Boulineau and Burney filed a timely Notice of

Appeal.

The Eleventh Circuit. On appeal, the Eleventh Circuit

affirmed. The court of appeals’ opinion is reported at

Padgett v. Donald, 401-F.3d 1273 (11th Cir. 2005) (Pet.

App. la-15a). Although the court of appeals acknowledged

that searches conducted under the Statute are conducted

without a warrant, probable cause or _ individualized

Suspicion, it concluded that the searches were reasonable

under the “totality of the circumstances.” (Pet. App. 10a-

11a). In reaching this conclusion, the court of appeals

eschewed the “special needs” analysis in favor of a test

balancing the interests of the parties. (Pet. App. 7a-8a). The

court of appeals struck the balance in favor of State holding

that the State’s interest in creating a DNA database for law

enforcement purposes outweighs the intrusion involved in

taking, storing and testing DNA samples. (Pet. App. ! la).

REASONS FOR GRANTING THE WRIT

In the nearly 215 years since the ratification of the Bill of

Rights, this Court has never held constitutional a search

undertaken for law enforcement purposes without at least a

modicum of individualized suspicion of wrongdoing.

6

Indeed, this Court has strictly limited the types of searches

that may be conducted on less than individualized suspicion

to a “closely guarded” category of constitutionally

permissible suspicionless searches. See Chandler y. Miller,

520 U.S. 305, 309 (1997) (concluding that “Georgia’s

requirement that candidates for state office pass a drug test

... does not fit within the closely guarded category of

constitutionally permissible Suspicionless searches” because

the searches were not justified by a special need beyond law

enforcement).

The decision below joins a cadre of lower court decisions

that have invaded this closely guarded category by including

within its confines searches conducted to obtain DNA

samples for use in criminal investigations without the

protection of a warrant, probable cause or, indeed, any

individualized suspicion whatsoever. These decisions extend

this Court’s recent decision in United States v Knights, 534

U.S. 112 (2001), beyond its constitutional limits and are in

conflict with Supreme Court jurisprudence limiting the type

of permissible suspicionless searches and the intent of the

Framers in adopting the Fourth Amendment. Thus, the

decision below should be reviewed.

I. THE LOWER COURTS ARE SPLIT ON THE

PROPER FOURTH AMENDMENT ANALYSIS TO

APPLY TO DNA COLLECTION STATUTES.

Although the Circuit Courts which have addressed the

constitutionality of DNA collection statutes have found them

constitutional, the courts are split on the proper Fourth

Amendment analysis to apply. The Third. Fourth, Fifth,

Ninth and Eleventh Circuits apply a “reasonableness” test,

which balances the interests of the individual against those of

the state to determine whether, under the totality of the

circumstances, the search was reasonable given the

circumstances surrounding the search and the nature of the

search itself. See United States v. Sczubelek. 402 F.3d 175,

182 (3d Cir. 2005); Jones v. Murray, 962 F.2d 302. 307 (4th

7

Cir.), cert. denied, 506 U.S. 977 (1992); Groceman v. United

States Dep't of Justice, 354 F.3d 411 (Sth Cir. 2004); United

States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc),

cert. denied, _ U.S. __, 73 U.S.L.W. 3555 (U.S. Mar. 21,

2005); Padgett v. Donald, 401 F.3d 1273. 1278 (11th Cir.

2005). The Second and Seventh Circuits, on the other hand.

apply a “special needs” analysis, which requires a finding

that a special need beyond the Ordinary need for law

enforcement justifies a warrantless search before the

reasonableness inquiry may be made. See Roe vy. Marcotte,

193 F.3d 72 (2d Cir. 1999); Green vy. Berge, 354 F.3d 675

(7th Cir. 2004). The Tenth Circuit is internally split

applying both a reasonableness test and the special needs

analysis in separate cases. See Boling v. Romer, 101 F.3d

1336, 1340 (10th Cir. 1997) (reasonableness); United States

v. Kimler, 335 F.3d 1132, 1146 (10th Cir.) (special needs),

cert. denied, 540 U.S. 1083 (2003).

The split in the lower court decisions is in large part the

result of the extension of the reasonableness analysis

enunciated in this Court’s recent decision in United States vy.

Knights, 534 U.S. 112 (2001). See Sczubelek, 402 F.3d at

184-87; Groceman, 354 F.3d at 413: Kincade, 379 F.3d at

832; Padgett, 401 F.3d at 1278. As discussed in more detail

below, applying the decision in Knights to suspicionless

searches extends Knights beyond its constitutional limits and

conflicts with the Framers’ intent. Without decisive action

by this Court, the keys to the citadel surrounding the closely

guarded category of suspicionless searches will be given

away. Consequently, this case should be reviewed.

Il. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S DECISIONS IN CITY OF

INDIANAPOLIS v. EDMOND AND FERGUSON ¥y.

CITY OF CHARLESTON

As the decision below notes, the “question of which

analysis to apply is more than academic.” (Pet. App. 7a). In

two recent opinions, this Court defined and narrowed the

8

scope of the special needs doctrine. making it clear that

where. as here, searches are conducted without

individualized suspicion, the finding of a special need

beyond the need for law enforcement is a necessary

prerequisite to the application of a test balancing the interests

of the state against those of the individual.

In City of Indianapolis v. Edmond, this Court evaluated

the constitutionality of suspicionless searches conducted at

drug interdiction road blocks. 531 U.S. 32, 34-36 (2000).

Rather than simply analyzing the searches under a

reasonableness test. the Court first considered whether the

primary purpose of the road blocks evinced a special need

beyond the state’s interest in crime control. /d. at 37.

Finding no such special need, the Court held that the

searches violated the Fourth Amendment without reaching

the type of reasonableness test applied in the decision below.

Id. at 47-48.

Similarly, in Ferguson v. City of Charleston, this Court

examined the constitutionality of a program authorizing

hospital administrators to perform drug screens on urine

samples taken from maternity patients who met certain

criteria indicating a potential for drug use. 532 U.S. 67, 70-

73 (2001). If samples tested positive for drug use, the police

were notified. /d. at 72. As in Edmond, the Court first

engaged in a special needs determination. /d. at 76. Again,

the Court concluded that because the primary purpose of the

program was to generate evidence for law enforcement

purposes, no special need existed and held the program

unconstitutional without performing a reasonableness test.

Id. at 82-84.

Together, Edmond and Ferguson teach that: (1) Apart

from cases involving a warrant, probable cause or some

degree of individualized suspicion, a special need beyond the

need for law enforcement must be found as a prerequisite to

the application of a test balancing the interests of the state

against those of the individual: and (2) In determining

9

whether a special need exists, courts must closely review the

primary purpose of the regime at issue.

Despite the fact that the Statute permits the state to

conduct a search of “any person convicted of a felony and

incarcerated in a state correctional facility.” with out a

finding of individualized suspicion, O.C.G.A. § 24-4-60

(emphasis added) (Pet. App. 26a), and the fact that the

primary purpose of the Statute is to collect evidence for use

in “an official investigation of any criminal offense,”

O.C.G.A. § 24-4-63(a) (Pet. App. 30a), the decision below

sidestepped the special needs question and simply did “not

address whether [the Statute] could satisfy a ‘special needs’

analysis.” (Pet. App. 8a n.4). Thus, the lower court’s ruling

cannot be reconciled with Edmond and Ferguson, 531 U.S.

at 37, 41-42 (indicating that there are “only limited

circumstances in which the usual rule [requiring

individualized suspicion] does not apply” and concluding

that “[b]ecause the primary purpose of the . . . narcotics

checkpoint program is to uncover evidence of ordinary

criminal wrongdoing, the program contravenes the Fourth

Amendment”); Ferguson, 532 U.S.. at 76-86 (applying

special needs analysis to a regime of warrantless.

suspicionless searches and indicating that “[i]n none of our

previous special needs cases have we upheld the collection

of evidence for criminal law enforcement purposes”).

The decision below attempted to distinguish this case

from Edmond and Ferguson by noting that “the searches

they discussed were performed on free persons, not

incarcerated felons.” (Pet. App. 9a). This is, however, a

distinction without out a constitutional difference.

Prisoners “do not forfeit all constitutional protections by

reason of their conviction and confinement in prison.” Bell

v. Wolfish, 441 U.S. 520, 545 (1979). Indeed, prisoners are

“accorded those rights not fundamentally inconsistent with

imprisonment itself or incompatible with the objectives of

incarceration.” Hudson y. Palmer, 468 US. 287, $23

on oe RRM ISON EAN DE Ye

10

(1984). An invasion of a prisoner’s rights cannot stand

where it “is not reasonably related to. . . penological

interests.” Turner v. Safley. 482 U.S. 78. 97 (1987). Thus.

while it is true that, as the lower court noted, prisoners are

subject to certain Fourth Amendment deprivations such as

suspicionless searches of their cells and visual body cavity

searches, those searches are conducted not to obtain evidence

for use in subsequent criminal investigations, but rather to

further legitimate penological interests such as prison safety.

See Bell, 441 U.S. at 558-59 (concluding that suspicionless

visual body-cavity searches of inmates are constitutional

given the “serious security dangers” presented by prison

environment); Hudson, 468 U.S. at 525-27 (upholding the

constitutionality of suspicionless searches of prisoners’ cells

because “it would be literally impossible to accomplish the

prison objectives [of institutional security and internal order]

if inmates retained a right of privacy in their cells”). In this

case, however, no penological interest is served by the

suspicionless searches authorized by the Statute. In fact.

prison officials do not even have access to the samples once

they are obtained. See O.C.G.A. § 24-4-63(a) (limiting

access to the DNA information to federal, state, and local

law enforcement officers) (Pet. App. 30a). Therefore. the

lower court's attempt to distinguish this case from Edmond

and Ferguson falls flat. The conflict between the decision

below and this Court’s decisions in those cases is intractable.

lll. THE DECISION BELOW EXPANDS UNITED

STATES v. KNIGHTS BEYOND ITS CONSTITU-

TIONAL LIMITS.

The lower court’s ruling that the constitutionality of the

Statute should be evaluated under a reasonableness test was

based on its conclusion that “Knights . . . not Ferguson and

Edmond, is the applicable Supreme Court precedent... .”

(Pet. App. 8a). The lower court read Knights as permitting

the application of a balancing test rather than the special

needs analysis even in the absence of individualized

POV a AONE he te oe -

ee ee

11

suspicion. (ld.). Such reading, however, extends Knights

beyond its constitutional limits.

In Knights, this Court evaluated the constitutionality of a

warrantless search of a probationer’s home to obtain

evidence to be used in a criminal investigation on a showing

of reasonable suspicion alone. 534 U.S. at 114-15. At the

time, Knights was sentenced to probation for a drug offense.

Id. at 114. The probation order required that Knights submit

“to search at anytime, with or without a search warrant . .. or

reasonable cause....” /d Shortly after Knights was

sentenced, a Pacific Gas & Electric electrical vault was set

on fire. /d. Brass padlocks had been removed from the vault

and gasoline was used to ignite the fire. Jd Knights and an

accomplice were suspected of committing the crime and

police began surveillance of Knights’ home. /d. at 114-15.

During the surveillance, an officer saw Knights’ accomplice

park a pickup truck in front of Knights’ residence. /d. at

115. The officer observed several items in the bed of the

truck including a gas can and two brass padlocks similar to

those removed from the scene of the arson. Jd Based on his

Observations and the condition of Knights’— probation

allowing for warrantless searches, the officer conducted a

search of Knights’ apartment, which revealed. among other

things, various bomb-making materials. /d

At trial, Knights moved to suppress the evidence obtained

during the search because it was conducted without a

warrant. /d. at 116. The district court granted the motion

and the Ninth Circuit affirmed. Jd On appeal, this Court

determined that even though the search of Knights’

apartment was conducted without a warrant or probable

cause, it was reasonable under the totality of the

circumstances “with the probation condition being a salient

circumstance.” Jd at 118. Given Knights’ diminished

expectation of privacy occasioned by the probation

condition, this Court concluded that, under the

circumstances, an officer's “reasonable Suspicion that a

probationer subject to a search condition is engaged in

12

criminal activity, there is enough likelihood that criminal

conduct is occurring that an intrusion on the probationer’s

significantly diminished privacy interests is reasonable” and

a warrant is not required. /d. at 121.

“Utilizing the Knights approach,” the lower court in this

case concluded that the Statute was reasonable by “weighing

the degree to which the search intrudes on an individual’s

privacy against the degree to which it promotes a legitimate

governmental interest.” (Pet. App. 10a-lla). The lower

court was “persuaded” that “[i]f the Supreme Court approves

dispensing with the special needs analysis for probationers,

. we may take a similar approach in cases involving

prisoners ... .” (/d. at 10a). The decision below. however,

gives short shrift to a key distinction between this case and

Knights—the search at issue in Knights was based on

reasonable suspicion.

To extend Knights to cover suspicionless searches is to

extend Knights beyond its constitutional limits. Application

of Knights to suspicionless searches conducted for law

enforcement purposes balances away protections afforded by

the Fourth Amendment by vitiating the requirement that

searches be based on some degree of individualized

suspicion—a requirement that is waived only in a closely

guarded category of case in which “the evidence obtained in

the search is not intended to be used for law enforcement

purposes.” Ferguson, 532 U.S. 88 (Kennedy, J..

concurring). The lower court’s extension of Knights

undermines the limited nature of constitutionally permissible

suspicionless searches by permitting blanket searches of a

broad class of citizens without requiring that the state

demonstrate that a special need beyond law enforcement

justifies the search and should, therefore, be reviewed.

13

IV. THE LOWER COURT’S APPLICATION OF THE

KNIGHTS ANALYSIS TO THE SUSPICIONLESS

SEARCHES AUTHORIZED BY THE STATUTE

CONTRADICTS THE INTENT OF THE

FRAMERS OF THE FOURTH AMENDMENT.

In adopting the Fourth Amendment, “[t]he framers sought

to ensure that the newly formed federal government could

not employ the two devices used by the British Crown that

they believed jeopardized the liberty of every citizen: the

general warrant and the writ of assistance.” Potter Stewart.

The Road To Mapp v. Ohio And Beyond: The Origins,

Development and Future of the Exclusionary Rule in Search-

And-Seizure Cases, 83 COLUM. L. REV. 1365. 1369 (1983)

(footnote omitted). See also 2 Joseph Story, COMMENTARIES

ON THE CONSTITUTICN OF THE UNITED STATES § 1902 (5th

ed. 1891) (noting that the introduction of the prohibition of

unreasonable searches and seizures into the amendments

“was doubtless occasioned by the strong sensibility excited,

both in England and America, upon the subject of general

warrants almost upon the eve of the American revolution”).

By applying the Knights analysis to the suspicionless

searches authorized by the Statute, the decision below allows

the state to employ what amounts to a general warrant—a

practice the Framers intended to prohibit by adoption of the

Fourth Amendment.

A. The Framers Intended To Protect Individuals

From Suspicionless Searches Conducted Pur-

suant To General Warrants.

One of the most powerful law enforcement tools available

to colonial authorities was the general warrant. Leonard W.

Levy, ORIGINS OF THE BILL OF RIGHTS, 153-54 (1999).

General warrants empowered their holder to conduct

searches with only the barest assertion of suspicion or,

indeed, no suspicion whatsoever. See Stewart, 83 COLUM. L.

REV. at 1369 (indicating that general warrants “were issued

without a showing of probable cause and often without even

14

suspicion of criminal wrongdoing”). Moreover, because “no

particular individual was charged with violating the law. no

name appeared on the warrants. which were valid for the

duration of the life of the-monarch under whose name they

were issued.” /d Under the general warrants, “[p]robable

cause in the modern sense did not exist: not even a

reasonable basis for suspicion existed.” Levy, at 154.

Despite their prevalence. the colonies bristled under the

unbridled authority provided by general warrants. Indeed.

many early state constitutions expressly prohibited their use.

See, ¢.g., Virginia Declaration of Rights of 1776, Art. X

(“That general warrants, whereby any officer or messenger

may ... search suspected places without evidence of a fact

committed . . . are grievous and oppressive and ought not to

be granted.”); Delaware Declaration of Rights of 1776. § 17

(“[A]ll general warrants to search suspected places...

without naming or describing the place or any Person in

special, are illegal ....~). Thus, “[w]hat the Framers of the

Fourth Amendment most strongly opposed, with limited

exceptions . . . . were general searches—that is, searches by

general warrant, by writ of assistance, by broad statute, or by

any other similar authority.” Vernonia School Dist. 47J y.

Acton, 515 U.S. 646, 669 (1995) (O’Connor. J.. dissenting).

B. The Statute Authorizes Suspicionless Searches

Similar To Those Authorized By General War-

rants.

The Statute has many of the characteristics of the type of

general warrants that the colonists inveighed against and the

Framers sought to prohibit. Searches conducted pursuant to

the Statute are conducted without probable cause or

individualized suspicion, are directed at a broad category of

persons, and because DNA samples obtained during the

initial search are searched each time law enforcement

officials review the database, are perpetual. See Stewart. 83

CoLum. L. REV. at 1369 (outlining characteristics of general

warrants). Without the showing of a special need beyond

15

law enforcement to justify the suspicionless searches at issue

in this case, the Statute is little more than a stalking-horse for

general warrants. Thus, lower court’s extension of Knights

to suspicionless searches contradicts the Framers’ intent in

adopting the Fourth Amendment.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

RICHARD H. DEANE, Jr.

(Counsel of Record)

RANDALL M. HAWKINS

JONES DAY

1420 Peachtree Street. N.E.

Suite 800

Atlanta, Georgia 30309

(404) 521-3939

Counsel for Petitioners

June 2. 2005

APPENDIX

la

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ROY PADGETT, ET AL.,

Plaintiff,

PAUL N. BOULINEAU, JOHN BURNEY,

Plaintiffs-Appellants,

v.

JAMES E. DONALD, Commissioner of Georgia

Department of Corrections, GEORGIA

BUREAU OF INVESTIGATION, AND GEORGIA

DEPARTMENT OF CORRECTIONS,

Defendants-Appellees.

No. 03-16527

FILED: March 4, 2005

On Appeal from the United States District

Court for the Northern District of Georgia

Before ANDERSON and BIRCH, Circuit Judges, and

ROYAL, District Judge.

BIRCH, Circuit Judge:

In a case of first impression for our circuit, we decide

whether the United States and Georgia Constitutions permit

the Georgia Department of Corrections to compel

incarcerated felons to submit saliva samples for DNA

profiling, pursuant to O.C.G.A. § 24-4-60. The district court

granted summary judgment in favor of the Commissioner of

the Georgia Department of Corrections. the Georgia Bureau

of Investigation, and the Georgia Department of Corrections.

Because we conclude that the statute does not violate the

: Honorable C. Ashley Royal, United States District Judge for the

Middle District of Georgia, sitting by designation.

2a

Fourth Amendment, the search and seizure provisions of the

Georgia Constitution, or the felons’ rights to privacy under

the United States or Georgia Constitutions, we AFFIRM.

I. BACKGROUND

The material facts in this case are not in dispute. In 2000.

the Georgia General Assembly amended O.C.G.A. § 24-4-60

(“the statute’) to require convicted, incarcerated felons to

provide a sample of their DNA to the Georgia Department of

Corrections (“GDOC”) for analysis and storage in a data

bank maintained by the Georgia Bureau of Investigation

(“GBI”). See O.C.G.A. § 24-4-60.' The DNA profiles can

The relevant portion of the statute provides:

In addition, on and after July 1, 2000, any person convicted of a

felony and incarcerated in a state correctional facility shall at the time

of entering the prison system have a sample of his or her blood, an

oral swab, or a sample obtained from a noninvasive procedure taken

for DNA (deoxyribonucleic acid) analysis to determine identification

characteristics specific to the person. The provisions and

requirements of this Code section shall also apply to any person who

has been convicted of a felony prior to July 1, 2000, and who

currently is incarcerated in a state correctional facility in this state for

such offense. The provisions and requirements of this Code section

shall also apply to any person who has been convicted of a felony in

this state on or after July 1, 2000. and who is incarcerated in a private

correctional facility in this state for such offense pursuant to a

contract with the Department of Corrections upon entering the

facility, and for any person convicted of a felony prior to July 1. 2000,

and who is incarcerated in a private correctional facility in this state

pursuant to contract with the Department of Corrections. The analysis

shall be performed by the Division of Forensic Sciences of the

Georgia Bureau of Investigation. The division shall be authorized to

contract with individuals or organizations for services to perform such

analysis. The identification characteristics of the profile resulting

from the DNA analysis shall be stored and maintained by the bureau

in a DNA data bank and shall be made available only as provided in

Code Section 24-4-63. For the purposes of this Code section, the term

“State correctional facility’ means a penal institution under the

jurisdiction of the Department of Corrections, including inmate work

camps and inmate boot camps; provided, however, that such term

shall not include a probation detention center, probation diversion

Ma ais Tiiald thot RCo Baeaheuis

3a

be released from the data bank “to federal, state, and local

law enforcement officers upon a request made in furtherance

of an official investigation of any criminal offense.”

O.C.G.A. § 24-4-63(a). The statute applies to all persons

convicted of a felony and incarcerated on or after 1 July

2000 and all felons incarcerated as of that date. O.C.G.A.

§ 24-4-60.

The statute allows the GDOC to obtain an incarcerated

felon’s DNA sample by taking blood, swabbing the inside of

his mouth for saliva, or using any other noninvasive

procedure. /d In implementing the statute, the GDOC

formulated policy dictating that members of the prison staff

obtain the samples by swabbing the inside of felons’ mouths

for saliva. The GDOC then sends the swabs to the GBI for

typing and placement in the DNA database. Inmates that

refuse to submit to the procedure are subjected to

disciplinary reports followed by hearings and possible

disciplinary action. If any inmate still refuses to cooperate,

the prison staff takes the sample by force.

Roy Padgett, a Georgia prison inmate. filed a pro se civil

rights action challenging the constitutionality of the statute.

Paul Boulineau and John Burney, prison inmates convicted

of felonies prior to 1 July 2000, intervened. and counsel was

appointed. Padgett was later dismissed from the action and

is not a party to this appeal.

In their Amended Complaint, Boulineau and Burney

sought a declaratory judgment that the statute violated their

constitutional rights and an injunction preventing the GDOC

(continued...)

center, or probation boot camp under the jurisdiction of the

Department of Corrections.

O.C.G.A. § 24-4-60.

Frederick Pettigrew also intervened. He was later dismissed from the

action and is not a party to this appeal.

4a

from taking their DNA without their consent. They claimed

the statute (1) violated the search and seizure provisions of

the United States and Georgia Constitutions: (2) violated the

Fifth and Fourteenth Amendment because it is unreasonably

vague: (3) deprived them of due process of law: (4) violated

their rights to privacy under the United States and Georgia

Constitutions; and (5) constituted an ex post facto law in

violation of the United States and Georgia Constitutions.

They named the GBI, the GDOC, and the Commissioner of

the GDOC (“the Commissioner’) as defendants.

On cross-motions for Summary Judgment, the district

court granted the GBI, the GDOC, and the Commissioner’s

motion for Summary Judgment and denied Boulineau and

Burney’s motion. The district court held that Boulineau and

Burney had abandoned their claims against the GBI and the

GDOC. As for their search and seizure and right to privacy

claims against the Commissioner, the claims they appeal

here, the district court concluded that the statute did not

authorize an unreasonable search or infringe their rights to

privacy in violation of the United States or Georgia

Constitutions. In evaluating Boulineau and Burney’s search

and seizure claims, the court applied a balancing test and

held that Georgia’s legitimate interest in creating a DNA

data bank outweighed their diminished privacy interests. It

rejected Boulineau and Burney’s argument that Georgia

could not take their DNA samples without a suspicion of

individual wrongdoing absent a “special need” other than

general law enforcement. As for their right to privacy

claims, the district court held that the bodily intrusion caused

by the statute is minimal in light of the other invasions

prisoners endure by virtue of their incarceration. It further

concluded that the state’s interest in creating a DNA data

bank outweighed any privacy rights that Boulineau and

Burney have in their identities. On appeal, Boulineau and

Burney argue that the district court erred in concluding that

the warrantless extraction and analysis of their DNA under

the statute (1) is a constitutional search under the United

Nec, DE skal econe sNfitan ‘oir

Sa

States and Georgia Constitutions; and (2) does not violate

their rights to privacy.”

Prior to his scheduled release date, Burney moved for an

injunction to prevent the collection, analysis, and storage of

his DNA sampie. The district court ordered Burney to

provide a DNA sample but enjoined the Commissioner, the

GDOC, and the GBI from analyzing the sample or including

it in the data bank until further order of the court. By

consent order entered on 13 January 2004, Boulineau also

provided a DNA sample to the GDOC. Neither Burney nor

Boulineau’s DNA sample will be analyzed or stored in the

data bank until the outcome of this litigation.

II. DISCUSSION

We review de novo a district court’s legal conclusions as

to the constitutionality of a statute. Doe v. Kearney, 329

F.3d 1286, 1293 (11th Cir. 2003), cert. denied, 540 U.S. 947,

124 S.Ct. 389, 157 L.Ed.2d 277.

A. Search and Seizure

Under the Fourth Amendment,

“[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

Boulineau and Burney do not address the district court’s conclusion

that they abandoned their claims against the GBI and the GDOC. Thus,

they waive any arguments against these defendants, and we address only

their arguments against the Commissioner. See United States vy.

Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (appellant abandons

any issue not raised on appeal).

The Commissioner does not claim any immunity under the Eleventh

Amendment. Because we are not required to raise the Eleventh

Amendment sua sponte, see McClendon v. Ga. Dept. of Cmty. Health,

261 F.3d 1252, 1257 (11th Cir. 2001); Abramson v. Gonzalez, 949 F.2d

1567, 1570 n.1 (1lth Cir. 1992), we decline to address the

Commissioner’s possible immunity and decide Burney and Boulineau’s

state constitutional claims on their merits.

6a

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

U.S. Const. amend. I1V. The Commissioner does not dispute

that the statutorily required extraction of saliva for DNA

profiling constitutes a “search” within the meaning of the

Amendment. See Skinner v. Ry. Labor Executives’ Ass'n.

489 U.S. 602, 616-17, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d

639 (1989) (blood tests, breathalyser tests, and the taking of

urine constitute searches); Cupp v. Murphy, 412 U.S. 291,

295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 (1973) (inquiry

that goes “beyond mere physical characteristics ... constantly

exposed to the public” constitutes a search). As such, we

need address only the search’s reasonableness, an inquiry

which takes into account “all of the circumstances

surrounding the search or seizure and the nature of the search

or seizure itself.” See Skinner, 489 U.S. at 619, 109 S.Ct. at

1414 (citation omitted).

Although reasonableness in most criminal cases depends

on the government’s obtaining a warrant supported by

probable cause, the Supreme Court has emphasized “the

longstanding principle that neither a warrant nor probable

cause, nor, indeed. any measure of individualized suspicion,

is an indispensable component of reasonableness in every

circumstance.” Nat'l Treasury Employees Union y. Von

Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d

685 (1989); accord Skinner, 489 U.S. at 624, 109 S.Ct. at

1417 (“[A] showing of individualized suspicion is not a

constitutional floor. below which a search must be presumed

unreasonable.”). Suspicionless searches have been upheld,

for example, to protect the country’s borders, United States

v. Pamsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52

L.Ed.cd 617 (1977), to maintain order within prisons,

Hudson v. Palmer, 468 U.S..517, 527, 104 S.Ct. 3194, 3201.

82 L.Ed.2d 393 (1984), and to achieve certain administrative

purposes, New York v. Burger, 482 U.S. 691, 702-04, 107

S.Ct. 2636, 2643-44, 96 L.Ed.2d 601 (1987). In these

“special needs” cases, the Court has performed the

7a

traditional Fourth Amendment analysis—balancing the

interests of the state against the privacy interests of the

individual—only after finding that the search vindicated a

“special need” of government that goes beyond general law

enforcement. See, e.g., Skinner, 489 U.S. at 619-20. 109°

S.Ct. at 1414-15 (upholding nonconsensual blood and urine

tests of certain railroad employees).

Each circuit to address the question has upheld the

constitutionality of DNA profiling statutes, but the circuits

have disagreed on whether to do so through the special needs

analysis or through the traditional balancing test. The

Second, Seventh, and Tenth Circuits have engaged in

balancing only after finding that the statute served a special

need beyond general law enforcement. See Roe v. Marcotte.

193 F.3d 72, 79 (2d Cir.1999); Green v. Berge, 354 F.3d

675, 679 (7th Cir. 2004); Boling v. Romer, 101 F.3d 1336.

1340 (10th Cir. 1996). The Fourth, Fifth, and Ninth Circuits

have applied the traditional balancing test without finding a

special need. See Jones v. Murray, 962 F.2d 302, 306-07

(4th Cir. 1992); Groceman v. United States Dep't of Justice.

354 F.3d 411, 413 (Sth Cir. 2004) (per curiam); United

States v. Kincade, 379 F.3d 813, 832 (9th Cir. 2004)

(reaffirming balancing approach of Rise v. Oregon, 59 F.3d

1556, 1559 (9th Cir. 1995)).

Boulineau and Burney argue that the Supreme Court’s

decisions in 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), require us to join the Second, Seventh and Tenth

Circuits in applying the special needs analysis. In contrast,

the Commissioner argues that we should follow the Fourth.

Fifth, and Ninth Circuits and engage in traditional balancing.

This question of which analysis to apply is more than

academic: in Edmond and Ferguson, the Supreme Court

limited the scope of the special needs exception by rejecting

states’ arguments that suspicionless searches with stated

goals of drug rehabilitation and interdiction served special

8a

needs beyond general law enforcement. See Edmond, 531

U.S. at 41- 42. 121 S.Ct. at 454 (“Because the primary

purpose of the Indianapolis narcotics checkpoint program is

to uncover evidence of ordinary criminal wrongdoing, the

program contravenes the Fourth Amendment.”); Ferguson,

532 U.S. at 83-84. 121 S.Ct. at 1291-92 (deeming

unconstitutional searches with the broader goal of drug

rehabilitation for women because their immediate objective

was general law enforcement). If we apply the “special

needs” analysis, Boulineau and Burney argue, we cannot

uphold the statute under these cases. Because we conclude

that United States v. Knights, 534 U.S. 112, 122 S.Ct. 587,

151 L.Ed.2d 497 (2001), not Ferguson and Edmond, is the

applicable Supreme Court precedent. we agree with the

Commissioner.’

Prisoners “do not forfeit all constitutional protections by

reason of their conviction and confinement in prison,” Bell v.

Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d

447 (1979), but they do not enjoy the same Fourth

Amendment rights as free persons, see Harris v. Thigpen,

941 F.2d 1495. 1513 (11th Cir. 1991) (noting that a prisoner

retains only those rights consistent “with his status as a

prisoner or with the legitimate penological objectives of the

corrective system” (citations omitted)). Prisoners have no

Fourth Amendment rights against searches of their prison

cells, for example. Hudson, 468 U.S. at 526, 104 S.Ct. at

3200. They must submit to visual body-cavity searches

executed without individualized suspicion. Bell, 441 U.S. at

558, 99 S.Ct. at 1884. They must undergo routine tests of

their blood, hair, urine. or saliva for drugs. Green v. Berge.

354 F.3d 675, 679 (7th Cir. 2004) (Easterbrook J., con-

curring). Because of these and other limitations on

prisoners’ Fourth Amendment rights, courts have recognized

4 : ,

Because we uphold the statute under a totality of the circumstances

analysis, we do not address whether it could satisfy a “special needs”

analysis.

9a

that prisoners comprise a separate category of persons for

purposes of the Amendment. See, e.g., Jones, 962 F.2d at

307 n.2; see also, e.g., Green, 354 F.3d at 679 (Easterbrook,

J., concurring).

Ferguson and Edmond struck down suspicionless searches

because they vindicated no special need distinguishable from

general law enforcement. However, the searches they

discussed were performed on free persons, not incarcerated

felons. Edmond, 531 U.S. at 40-41, 121 S.Ct. at 453-54

(police searched motorists’ cars at roadside checkpoints in

order to uncover “evidence of ordinary criminal

wrongdoing”); Ferguson, 532 U.S. at 82, 121 S.Ct. at 1290-

91 (hospital personnel administered drug tests to certain

pregnant woman and turned over any positive results to the

police). Neither case condemned suspicionless searches of

prisoners executed without a special need nor required us to

apply the special needs analysis in every situation.

After Ferguson and Edmond, the Supreme Court used the

traditional balancing test to evaluate warrantless searches

performed on probationers, who, like prisoners, have limited

Fourth Amendment rights because of their relationship with

the state. In United States v. Knights, the Court applied the

balancing test to uphold a warrantless search of a

probationer’s home. The search was conducted for general

law enforcement purposes only and was not based on a

“special need.” 534 U.S. at 118-21, 122 S.Ct. at 591- 92.

Key to the Court’s ruling was Knights’ status as a

probationer. /d. at 119, 122 S.Ct. at 591 (“Knights’ status as

a probationer informs both sides of the balance.”) Likening

probation to incarceration, the Court noted that probationers

do not “enjoy the absolute liberty to which every citizen is

entitled.” /d. (citations omitted). Probationers are more

Although Knights involved a search based on reasonable suspicion,

the Court left open the question of whether suspicionless searches of

probationers are constitutional. Knights, 534 U.S. at 120 n.6, 122 S.Ct.

587

10a

likely to violate the law than ordinary citizens. the Court

concluded, and the state's “interest in apprehending violators

of the criminal law. thereby protecting potential victims of

criminal enterprise. may therefore justifiably focus on

probationers in a way that it does not on the ordinary

citizen.” Jd. at 120-21, 122 S.Ct. at 592. The Court

explicitly rejected the argument that only searches of

probationers serving a “special need™ are constitutionally

permissible. /d. at 117-18, 122 S.Ct. at 590-91.

If the Supreme Court approves dispensing with the special

needs analysis for probationers, we are persuaded that we

may take a similar approach in cases involving prisoners,

who enjoy less Fourth Amendment rights.° See Green, 354

F.3d at 679-80 (Easterbrook. J., concurring) (arguing that the

rights of prisoners, probationers, convicted but released

felons. and free persons represent a continuum of Fourth

Amendment liberties and may be subjected to different

Fourth Amendment analyses). As such, Ferguson and

Edmond. while consistent with our ruling, do not apply here.

Instead, we follow Knights and apply a traditional balancing

test.

Utilizing the Knights approach, we next address whether

the statute is reasonable under a totality of the circumstances

Boulineau and Burney suggest that our decision in Fortner v. Thomas,

983 F.2d 1024, 1030 (11th Cir.), requires us to conclude that prisoners

enjoy the same rights to bodily privacy as free persons unless the

statutorily mandated intrusion furthers a legitimate penological interest,

such as institutional security. Although we concluded in Fortner that

prisoners retain a right to bodily privacy that may be violated if female

prison guards can view male prisoners in states of nudity, we held that

this right was limited and noted that prisoners’ rights to privacy are

evaluated on a case-by-case basis. 983 F.2d at 1030. We continue to

hold that prisoners, unlike free persons, retain only those rights that are

consistent with their incarceration. See Harris. 941 F.2d at 1513.

Because we rely on Knights to apply the balancing test to searches of

prisoners, we do not need to address whether the search required by the

DNA profiling statute is justified by penal concerns.

lla

analysis. We employ a balancing test, weighing the degree

to which the search intrudes on an individual's privacy

against the degree to which it promotes a_ legitimate

governmental interest. See Knights, 534 U.S. at 118-19, 122

S.Ct. at 591. The Fourth Circuit applied the totality of the

circumstances analysis and found a similar statute to be a

reasonable intrusion into convicted felons’ privacy. See

Jones, 962 F.2d at 306-08. Because we believe that

Georgia’s legitimate interest in creating a permanent

identification record of convicted felons for law enforcement

purposes outweighs the minor intrusion involved in taking

prisoners’ saliva samples and storing their DNA profiles,

given prisoners’ reduced expectation of privacy in their

identities, we adopt the reasoning in Jones and hold that the

statute does not violate the Fourth Amendment. See id.

We also apply the balancing test to evaluate the

reasonableness of the statutorily required search under the

search and seizure provision of the Georgia Constitution.

See Ga. Const. art. I, § 1, 13; City of East Point v. Smith,

258 Ga. 111, 112, 365 S.E.2d 432, 434 (1988) (evaluating

reasonableness of a search under the Georgia Constitution by

looking to the Fourth Amendment cases as persuasive

authority and applying the balancing test); Wells v. State, 180

Ga.App. 133, 134, 348 S.E.2d 681, 683 (1986) (noting that

Georgia adopted the “totality of the circumstances” test in

evaluating reasonableness of searches under its Constitution

and that the standards under the federal and state

Constitutions are the same). For the same reasons we adopt

in our Fourth Amendment analysis, we hold that the statute

does not violate Boulineau and Burney’s rights to be free

from unreasonable searches and seizures under the Georgia

Constitution.

B. Right to Privacy

Boulineau and Burney contend that the district court erred

in concluding that the forcible extraction of their DNA does

not violate their rights to bodily privacy as guaranteed by the

12a

United States and Georgia Constitutions. Because they

explicitly waive the argument that they have an independent

right to privacy in their identities, we address only the bodily

intrusion caused by the statute.

1. The United States Constitution

The United States Constitution does not expressly

guarantee a right to privacy, but the Supreme Court has held

that a right to privacy does exist within the liberty

component of the Fourteenth Amendment. See Roe v. Wade,

410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147

(1973). To date, the Supreme Court has recognized two

types of interests protected by the right to privacy. First, the

right to privacy guards an individual’s interest in avoiding

disclosure of certain personal matters. Second, it protects an

individual’s personal autonomy in making certain important

decisions, such as those inivolving marriage, contraception,

and procreation. Whalen v. Roe. 429 U.S. 589, 598-99, 97

S.Ct. 869, 876-77, 51 L.Ed.2d 64 (1977): Carey v.

Population Servs. Int'l, 431 U.S. 678, 684, 97 S.Ct. 2010,

2016, 52 L.Ed.2d 675 (1977); Harris, 941 F.2d at 1513 n.26.

Boulineau and Burney argue that our decision in Fortner

v. Thomas, 983 F.2d 1024 (11th Cir. 1993), establishes that

prisoners enjoy a right to bodily privacy that is infringed by

the compelled extraction of their saliva. In Fortner, we held

that male prisoners’ rights to bodily privacy may be violated

by allowing female correctional officers to view them in

states of nudity. Jd. at 1029-30. We explained, “[Mlost

people have ‘a special sense of privacy in their genitals, and

involuntary exposure of them in the presence of people of

the other sex may be especially demeaning and

humiliating.” /d. at 1030 (citations omitted). Fortner’s

holding thus comports with the Supreme Court’s recognition

that people have a protected privacy interest in avoiding

disclosure of certain personal matters—there, the exposure

of their naked bodies. See id. at 1030. We did not consider

prisoners’ right to privacy against other types of

l3a

governmental intrusions, and Fortner cannot be read to

expand the right to privacy to interests other those involving

certain compelled nudity.

The statute no doubt requires the disclosure of prisoners’

personal DNA information, albeit to a limited audience for

limited, law enforcement purposes. However, Boulineau and

Burney explicitly limit their privacy challenge to the bodily

intrusion caused by the statute:

Boulineau and Burney are not trying to hide who they are,

or to prevent the state from keeping a record of lawfully

obtained DNA samples. Instead, they seek to prevent

illegal searches of their persons and to prevent the state

from using the fruits of these illegal searches in

hypothetical future criminal investigations.

Br. of Appellants Paul Boulineau and John Burney at 34.

The extraction of saliva itself does not implicate their

interests in avoiding disclosure of information, but rather

“the right of the individual to be free in his private affairs

from governmental ... intrusion.” Whalen, 429 U.S. at 599

n.24, 97 S.Ct. at 876 n.24 (citations omitted). Fortner does

not address prisoners’ bodily privacy in this context.

Prisoners do “retain certain certain fundamental rights to

privacy,” and Fortner did not foreclose the possibility that

prisoners enjoy other rights to bodily privacy in our circuit.

983 F.2d at 1029-30 (citations omitted). Nonetheless, we

conclude that the right Boulineau and Burney claim here is

neither “fundamental” nor “implicit in the concept of ordered

liberty.” See Roe, 410 U.S. at 152, 93 S.Ct. at 726. As we

discussed supra section II.A, prisoners routinely undergo

drug testing, which requires a bodily intrusion similar to the

intrusion here. This and the other restrictions on their

freedom which are inherent to their status as prisoners

14a

indicate that the right Boulineau and Burney claim here is

not protected by the right to privacy.’

2. The Georgia Constitution

The Georgia Constitution gives its citizens a right to

privacy that is broader than that recognized by the United

States Constitution. Georgia considers privacy a

fundamental right, and it requires that courts carefully

scrutinize cases in which an individual’s privacy may have

been infringed. King v. Georgia, 272 Ga. 788. 789, 535

S.E.2d 492, 494 (2000). The right to privacy protects

matters that a reasonable person would consider private. /d.

at 790, 535 S.E.2d 492.

A person’s privacy interest is not inviolable, however.

The state may constitutionally intrude upon a protected.

privacy interest “pursuant to a statute which effectuates a

compelling state interest and which is narrowly tailored to

promote only that interest.” Law enforcement constitutes a

compelling state interest. /d. at 790, 535 S.E.2d at 495.

In spite of their incarceration, Boulineau and Burney

retain a right to bodily privacy under the Georgia

Constitution. Zant v. Prevatte, 248 Ga. 832, 833-34, 286

S.E.2d 715, 716-17 (1982) (prisoners retain the right to

Citing Turner v. Safley, 482 U.S. 78, 97, 107 S.Ct. 2254, 2265-66, 96

L.Ed.2d 64 (1987), Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir.

1993), and several other cases from other circuits, Boulineau and Burney

argue that the district court erred in failing to find a legitimate

penological purpose behind the statute before authorizing the required

intrusion into their privacy. They contend that absent individualized

suspicion, “the only applicable rationale [for invading any retained

privacy rights of prisoners] is ... for legitimate penological purposes.”

[he cases do not stand for this proposition. Turner addresses prison

regulations, not statutes. 482 U.S. at 89, 107 S.Ct. at 2261, and it leaves

intact the long standing rule that prisoners do not enjoy constitutional

rights “inconsistent with [their] status as ... prisoner [s].” /d. at 94, 107

S.Ct. at 2265; see Hudson, 468 U.S. at 524, 104 S.Ct. at 3199. Fortner,

as discussed previously, is inapposite. The other cases cited by Boulineau

and Burney are Fourth Amendment cases involving free persons.

EE CT Ben Nin RAY ES wy) <i aes ae

15a

bodily privacy). The extraction of saliva required by the

statute implicates this right. However, the statute promotes

law enforcement, a compelling state interest, King, 272 Ga.

at 791, 535 S.E.2d at 495, and it is narrowly tailored to

promote law enforcement. The statute requires DNA

profiling on incarcerated felons, O.C.G.A. § 24-4-60, a

limited population. Further, it forbids the release of felons’

DNA profiles except for law enforcement purposes. See

O.C.G.A. § 24-4-60; O.C.G.A. § 24-4-63. Thus, the forcible

extraction of saliva does not violate Boulineau and Burney’s

rights to privacy under the Georgia Constitution.

Il. CONCLUSION

We conclude the statute does not violate Boulineau and

Burney’s rights against unreasonable searches and seizures

or their rights to bodily privacy under the United States or

Georgia Constitutions. As such, we AFFIRM the order of

the district covrt.

l6a

[Reported at 294 F. Supp. 2d 1338]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA,

ATLANTA DIVISION L

ROY PADGETT, ET AL.,

Plaintiffs,

Vv.

JOE FERRERO, Commissioner of Georgia

Department of Corrections, et al.,

Defendants.

Civil Action No. 1:01-CV-1936-TWT.

Dec. 10, 2003

ORDER

THRASH, District Judge.

This action for injunctive relief seeks to have the Georgia

law requiring DNA sampling of all convicted felons declared

unconstitutional. The case is currently before the Court on

Defendants’ Motion for Summary Judgment [Doc. 37] and

Plaintiff-Intervenors’ Cross-Motion for Summary Judgment

[Doc. 40]. For the reasons set forth below, the Defendants’

Motion for Summary Judgment is granted and Plaintiffs’

motion is denied.

I. BACKGROUND

The Plaintiffs are convicted felons who served or are

serving prison sentences which started before July 1, 2000.

Plaintiffs’ sentences will end after July 1, 2000. The

Defendant Georgia Bureau of Investigation is a law

enforcement agency within the state of Georgia. The

Defendant Georgia Department of Corrections administers

the prison system for the state of Georgia. The Defendant

Joe Ferrero is the Commissioner of the Georgia Department

of Corrections.

LON targa Me SEA OR aie OY SSS RN

17a

The material facts in this case are not in dispute. In 2000,

the Georgia General Assembly amended O.C.G.A. § 24-4-60

to require “any person convicted of a felony and incarcerated

in a state correctional facility” to have a sample of his

deoxyribonucleic acid (“DNA”) taken: (1) by swabbing the

inside of his mouth; (2) from a sample of his blood: or (3) by

some other non-invasive procedure. O.C.G.A. § 24-4-60.

The DNA sample is to be “typed” or analyzed to determine

the identifying characteristics of the person from whom it

was taken. /d. The convict’s identifying information is to be

stored in a data bank maintained by the Georgia Bureau of

Investigation. /d. The information in the data bank may

then be released directly to federal, state, or local law

enforcement upon a “request made in furtherance of an

official investigation of any criminal offense.” O.C.G.A.

§ 24-4-63(a).

Two of the Plaintiffs in this case, Roy Padgett and

Frederick Pettigrew, have already given DNA samples which

are currently in the Georgia Bureau of Investigation’s

database. (Staples Aff. § 6.) The action has been dismissed

as to them. John Burney has given a DNA sample but it is

sequestered pending the outcome of this litigation. Paul N.

Boulineau has yet to provide a DNA sample. As required by

the statute, Defendants will take a sample and _ store

information from Boulineau’s DNA before he is released

from prison. (Hitchcock Aff. 4 4.) Department of

Corrections’ policy dictates that a member of the prison

medical staff will take a sample of Boulineau’s DNA by

using swabs to collect saliva from the inside of his mouth.

(/d. at 9] 4-5.) Those swabs will then be sent to the Georgia

Bureau of Investigation for typing and placement in the

DNA database. (/d. at 5.) Failure to comply with the

requirement to give a DNA sample will subject the inmate to

a disciplinary report, followed by a hearing and disciplinary

action by prison staff. (/d. at §§ 7-9.) If the inmate still

refuses to cooperate, the sample will be taken by force.

18a

I]. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when the

pleadings. depositions, and affidavits submitted by the

parties show that no genuine issue of material fact exists and

that the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). An issue is genuine “if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242. 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An

issue is material if it “might affect the outcome of the suit

under the governing law.” /d. The court should view the

evidence and any inferences that may be drawn in the light

most favorable to the nonmovant. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142

(1970). The party seeking summary judgment must first

identify grounds that show the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-

24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then

shifts to the nonmovant, who must go beyond the pleadings

and present affirmative evidence to show that a genuine issue

of material fact does exist. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242. 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Ill. DISCUSSION

Plaintiffs claim that the DNA sampling statute is invalid

as an unreasonable search and seizure in violation of the

Fourth Amendment, that it violates the Ex Post Facto clause

of Article I of the United States Constitution, that it violates

certain privacy rights implicit in the penumbra of the Bill of

Rights, that it violates the right against self incrimination,

and that it deprives them of Due Process.

A. Eleventh Amendment Immunity

Defendants contend that the Eleventh Amendment to the

United States Constitution bars the action against the

Georgia Bureau of Investigation and the Georgia Department

of Corrections. The Eleventh Amendment bars suit against

States and those entities which are arms of the state. Fouche

19a

v. Jekyll Island-State Park Authority, 713 F.2d 1518, 1520

(11th Cir. 1983). An entity is an arm of the state when the

relief sought against the named defendant would actually

operate against the state if granted. Jackson v. Georgia

Dept. of Transp., 16 F.3d 1573, 1577 (11th Cir. 1994).

Plaintiffs’ only response is that they may seek injunctive

relief against the Defendant Ferrero. This constitutes

abandonment of any claims against the Georgia Bureau of

Investigation and the Georgia Department of Corrections.

Therefore, their Motion for Summary Judgment is granted.

B. Fourth Amendment

Plaintiffs claim that O.C.G.A. § 24-4-60 authorizes a

search which violates their Fourth Amendment right to be

free from unreasonable searches and seizures. A compelled

intrusion into the body for a blood or saliva sample is a

Fourth Amendment search. Skinner v. Railway 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,

767-68, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therefore,

the search must be reasonable to comply with the mandate of

the Fourth Amendment. What is reasonable “depends on all

of the circumstances surrounding the search or seizure and

the nature of the search or seizure itself,” and the

permissibility of the search is “judged by balancing its

intrusion on the individual’s Fourth Amendment interests

against its promotion of legitimate governmental interests.”

Skinner, 489 U.S. at 619, 109 S.Ct. 1402. In general, courts

strike the reasonableness balance in favor of the warrant

requirement of the Fourth Amendment. With some narrowly

defined exceptions, a search is not reasonable unless it is

carried out pursuant to a judicial warrant issued on probable

cause. Jd. In general, searches performed in the absence of a

warrant and pursuant to an exception must be predicated

upon “probable cause to believe that the person to be

searched has violated the law,” or, at the very least, “some

quantum of individualized suspicion.” Jd. at 624, 109 S.Ct.

1402

20a

In the face of Fourth Amendment challenges. the

overwhelming majority of courts have held that DNA

collection and typing laws are constitutional. See Roe vy.

Marcotte, 193 F.3d 72 (2nd Cir. 1999): Boling v. Romer, 101

F.3d 1336 (10th Cir. 1996): Rise v. State of Oregon. 59 F.3d

1556 (9th Cir. 1995); Jones v. Murray, 962 F.2d 302 (4th

Cir. 1992). These cases properly weigh the interests of the

state and those of the individuals involved. The bodily

intrusion of taking a blood or saliva sample is minimal. It is

not significantly greater than taking fingerprints or a

photograph. The state has a compelling interest in obtaining

reliable and accurate identifying characteristics of

individuals convicted of felonies. These valid law

enforcement interests outweigh a convicted felon’s privacy

interests. To the extent that probable cause or individualized

suspicion is required to justify a search, the Plaintiffs’ felony

convictions provide that justification. Therefore, O.C.G.A.

§ 24-4-60 does not authorize unreasonable searches in

violation of the Fourth Amendment.

Plaintiffs contend that in order for the state to take

samples of their DNA, it must be acting in furtherance of a

“special need” beyond general law enforcement. The special

needs doctrine is an exception to the general requirement of

individualized suspicion for searches: if a search is in

furtherance of a special need outside of general law

enforcement, then individualized suspicion is not required.

Plaintiffs rely on two recent Supreme Court cases and a

Ninth Circuit case for this argument. In City of Indianapolis

v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333

(2000), the Court struck down as unconstitutional motor

vehicle roadblocks designed to target drug trafficking.

Because the roadblocks served the ends of general law

enforcement instead of a special need, the Court found them

to be invalid under the Fourth Amendment. Similarly, in

Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281,

149 L.Ed.2d 205 (2001), the Court held that performing drug

screens on mothers who met certain demographic criteria

2la

was impermissible, because the statute authorized

suspicionless searches designed to meet the needs of general

law enforcement instead of a special need of the state. In

United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003), a

divided panel of the Ninth Circuit relied upon these two

Supreme Court cases to hold that the federal DNA act was

unconstitutional.

I am not persuaded by the Plaintiffs’ argument. Most

importantly, the Supreme Court has not used the “special

needs” analysis in defining the Fourth Amendment rights of

prisoners. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct.

3194, 82 L.Ed.2d 393 (1984), the Supreme Court declined to

extend the special needs doctrine to prisoners. In that case,

the Court approved a suspicionless search of an inmate’s cell

over a Fourth Amendment challenge, without any mention of

a special need. The Supreme Court began its discussion by

noting that “while persons imprisoned for crimes enjoy many

protections of the Constitution, it is . . . clear that

imprisonment carries with it the circumscription or loss of

many significant rights.” Jd. at 524, 104 S.Ct. 3194. The

loss of those rights is necessitated by the needs of properly

running a penological system, including internal security,

justice, deterrence and retribution. /d. Based on those

considerations, the Court concluded that “the Fourth

Amendment proscription against unreasonable searches does

not apply within the confines of the prison cell,” thus

eliminating any argument that prison officials must have a

special need for a suspicionless search. /d. at 526, 104 S.Ct.

3194.

The special needs decisions of Edmond and Ferguson do

not alter the Supreme Court’s holding in Hudson. Courts

continue to apply the Hudson decision to cases involving

suspicionless searches of prisoners, even though there is no

special need beyond general law enforcement. See Willis v.

Artuz, 301 F.3d 65, 67-68 (2nd Cir. 2002); United States v.

Reece, 797 F.Supp. 843, 846 (D. Colo. 1992). The Fourth

22a

Circuit aptly summed up the reason for the distinction

between prisoner and non-prisoner cases:

Because we consider the cases which involve the Fourth

Amendment rights of prison inmates to comprise a separate

category of cases to which the usual per se requirement of

probable cause does not apply. there is no cause to address

whether the so-called “special needs” exception, relied on by

the district court, applies in this case.

Jones, 962 F.2d at 307 n.2. Thus, the Fourth Amendment

special needs analysis is not applicable to cases involving

searches of convicted felons. Cases cited by Plaintiffs are

inapplicable because they do not concern convicted felons

currently serving prison sentences. See Lowe v. State. 203

Ga.App. 277, 416 S.E.2d 750 (1992) (Fourth Amendment

rights of pre-trial detainees); United States v. Cohen. 796

F.2d 20 (2nd Cir. 1986) (same).

I also decline to follow the Ninth Circuit’s most recent

decision in this area, United States v. Kincade, 345 F.3d

1095 (9th Cir. 2003) (overruling Rise v. State of Oregon, 59

F.3d 1556 (9th Cir. 1995)). In that case. the court ignored

the compelling interest of the state in obtaining accurate and

reliable identifying characteristics of individuals convicted

of crimes. The court’s distinction between fingerprinting

and obtaining a DNA sample is not of constitutional

significance. The court's assertion that individuals have a

lesser expectation of privacy in their fingerprints because

they are exposed to public view is problematical at best. Its

assertion that fingerprints are taken to affirm that law

enforcement has the right person in custody, while true up to

a point, completely ignores the law enforcement interest in

using fingerprints to solve other crimes. Judge O’Scannlain

persuasively points out the error of the court in extending the

“special needs” analysis of Edmond and Ferguson to

overrule prior circuit precedent. Id. at 1115-17

(O’Scannilain, J.. dissenting).

23a

Because DNA sampling is reasonable in light of the

Strong interests of the state and the diminished privacy

interests of Plaintiffs, O.C.G.A. § 24-4-60 does not violate

the Fourth Amendment. This same balancing test shows that

the statute does not violate the right to be free from

unreasonable searches and seizures guaranteed by the

Georgia Constitution as well. See City of East Point vy.

Smith, 258 Ga. 111, 112, 365 S.E.2d 432 (1988) (looking to

the Fourth Amendment and using balancing test to evaluate

suspicionless drug test of fire chief). Summary judgment for

Defendants is proper on Plaintiffs’ search and seizure claims.

C. Privacy Rights

Plaintiffs claim that the statute violates their right to

privacy under the Federal and Georgia Constitutions. In

support of their arguments, Plaintiffs cite cases where courts

determined that the justifications for a search did not comply

with the requirements of the Fourth Amendment, thus

unjustly infringing on reasonable expectations of privacy.

See In re Shabazz, 200 F.Supp.2d 578, 584-85 (D.S.C. 2002)

(considering legitimacy of grand jury subpoena in light of

Fourth Amendment). This is not such a case. The

identification of convicted felons is a legitimate state interest

of great importance, and though oral swabbing or taking a

blood sample is slightly more invasive than fingerprinting or

photographing, it is justified by its increased accuracy and

immutability. Upon imprisonment, convicted felons are

subject to much greater losses of privacy than the minimal

intrusion necessary to obtain a DNA sample. Since the

current law went into effect on July 1, 2000, there have been

almost two hundred DNA matches from the GBI database

with DNA found at crime scenes. Plaintiffs’ right to privacy

in their identification, assuming one exists, is substantially

outweighed by the interests of the state in having available a

DNA database that can be used in solving crimes and

exonerating the innocent. Defendants are entitled to

summary judgment on Plaintiffs’ privacy claims.

24a

D. Ex Post Facto Clause

Plaintiffs contend that O.C.G.A. § 24-4-60 violates the ex

post facto clauses of the United States and Georgia

Constitutions because it may lead to an increase in the

amount of time they spend in prison. Plaintiffs produced no

evidence to support this argument. Instead, the only relevant

evidence on this issue indicates that while a DNA sample

may be taken by force in the case of a refusal. no prison

sentences will be extended because of the failure to

cooperate with the statute. (Hitchcock Aff. {9 7-11.) The

purpose of Georgia’s DNA collection statute is not to punish,

but to obtain a reliable, immutable form of identification for

placement in a DNA database, and all the relevant evidence

in this case indicates that the statute will not increase the

punishment of anyone to whom it is applied. Defendants are

entitled to summary judgment on Plaintiffs* Ex Post Facto

claims.

E. Self Incrimination

Plaintiffs contend that O..G.A. §24-4-60 is

unconstitutional because it forces them to submit self

incriminatory evidence in violation of the Fifth Amendment

of the United States Constitution and Article I, section 1.

XVI of the Georgia Constitution. Plaintiffs’ claims miss the

mark, for DNA samples are not testimonial in nature.

Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir. 1998): see

also Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct.

1826. 16 L.Ed.2d 908 (1966) (holding that blood test

evidence and chemical analysis were not testimonial or

otherwise communicative). Defendants are entitled to

summary judgment on Plaintiffs’ claims that O.C.G.A. § 24-

4-60 violates the guarantees against compelled self

incrimination contained in the United States and Georgia

Constitutions.

F. Due Process

Plaintiffs claim that O.C.G.A. § 24-4-60 does not comply

with the Due Process requirements of the United States and

25a

Georgia Constitutions. Plaintiffs contend that the statute fails

to provide them with a meaningful opportunity to be heard

before they are deprived of their release dates in which they

have a liberty interest. There is no evidence upon which this

Court can determine that failure to comply with the statute

will result in the extension of Plaintiffs’ prison sentences or

denial of their parole. (Hitchcock Aff. {4 7-11.) Thus, there

is no risk that Plaintiffs will be deprived of the liberty

interest upon which they base their Due Process claims.

Moreover, upon failure to voluntarily give a sample. a

correctional officer “will issue a disciplinary report.” after

which the Plaintiffs would be provided a hearing at which

they may call witnesses. (/d.) There is no Due Process

violation, and Defendants are entitled to summary judgment

on those claims.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion for

Summary Judgment [Doc. 37] is GRANTED and Plaintiff-

Intervenors’ Cross-Motion for Summary Judgment [Doc. 40]

is DENIED. The Clerk is directed to enter judgment in favor

of the Defendants.

26a

Georgia Code, Title 24 — Evidence

Chap. 4, Article 4— DNA Analysis Upon Conviction Of

Certain Sex Offenses

§ 24-4-60. Requirement for DNA analysis of persons

convicted of certain sex offenses; storage of profile in

data bank.

Any person convicted of a criminal offense defined in

Code Section 16-6-1, relating to the offense of rape: Code

Section 16-6-2, relating to the offense of sodomy or

aggravated sodomy: Code Section 16-6-3, relating to the

offense of statutory rape: Code Section 16-6-4, relating to

the offense of child molestation or aggravated child

molestation: Code Section 16-6-5, relating to the offense of

enticing a child for indecent purposes; Code Section 16-6-

5.1, relating to the offense of sexual assault against persons

in custody, sexual assault against a person detained or a

patient in a hospital or other institution, or sexual assault by

a practitioner of psychotherapy against a patient: Code

Section 16-6-6, relating to the offense of bestiality; Code

Section 16-6-7, relating to the offense of necrophilia; or

Code Section 16-6-22, relating to the offense of incest, shall

have a sample of his or her blood, an oral swab, or a sample

obtained from a noninvasive procedure taken for DNA

(deoxyribonucleic acid) analysis to determine identification

characteristics specific to the person. In addition. on and

after July 1, 2000, any person convicted of a felony and

incarcerated in a state correctional facility shall at the time of

entering the prison system have a sample of his or her blood,

an oral swab, or a sample obtained from a noninvasive

procedure taken for DNA (deoxyribonucleic acid) analysis to

determine identification characteristics specific to the person.

The provisions and requirements of this Code section shall

also apply to any person who has been convicted of a felony

prior to July 1, 2000, and who currently is incarcerated in a

state correctional facility in this state for such offense. The

provisions and requirements of this Code section shall also

27a

apply to any person who has been convicted of a felony in

this state on or after July 1, 2000, and who is incarcerated in

a private correctional facility in this state for such offense

pursuant to a contract with the Department of Corrections

upon entering the facility, and for any person convicted of a

felony prior to July 1, 2000, and who is incarcerated in a

private correctional facility in this state pursuant to contract

with the Department of Corrections. The analysis shall be

performed by the Division of Forensic Sciences of the

Georgia Bureau of Investigation. The division shall be

authorized to contract with individuals or organizations for

services to perform such analysis. The identification

characteristics of the profile resulting from the DNA analysis

shall be stored and maintained by the bureau in a DNA data

bank and shall be made available only as provided in Code

Section 24-4-63. For the purposes of this Code section, the

term ‘state correctional facility’ means a penal institution

under the jurisdiction of the Department of Corrections,

_ including inmate work camps and inmate boot camps;

provided, however, that such term shall not include a

probation detention center, probation diversion center, or

probation boot camp under the jurisdiction of the -

Department of Corrections.

§ 24-4-61. Time and procedure for withdrawal of

samples.

(a) Each sample required pursuant to Code Section 24-4-

60 from persons who are to be incarcerated shall be

withdrawn within the first 30 days of incarceration at the

receiving unit or at such other place as is designated by the

Department of Corrections. Each sample required pursuant

to Code Section 24-4-60 from persons who are to be released

from a state correctional facility or private correctional

facility shall be withdrawn within the 12 months preceding

such person’s release at a place designated by the

Department of Corrections. The required samples from

persons who are not sentenced to a term of confinement shall

be withdrawn as a condition of probation. The Division of

28a

Forensic Sciences of the Georgia Bureau of Investigation

shall publish in its quality manuals the procedures for the

collection and transfer of samples to such division pursuant

to Code Section 35-3-154. Personnel at a Department of

Corrections facility shall implement the provisions of this

Code section as part of the regular processing of offenders.

(b) Samples collected by oral swab or by a noninvasive

procedure may be collected by any individual who has been

trained in the procedure. Only a correctional health nurse

technician, physician, registered professional nurse. licensed

practical nurse, graduate laboratory technician, or

phlebotomist shall withdraw any sample of blood to be

submitted for analysis. No civil liability shall attach to any

person authorized to take a sample as provided in this article

as a result of the act of taking a sample from any person

submitting thereto, provided the sample was taken according

to recognized medically accepted procedures. However, no

person shall be relieved from liability for negligence in the

withdrawing of any blood sample.

(c) Chemically clean sterile disposable needles shall be

used for the withdrawal of all samples of blood. The

containers for blood samples, oral swabs, and the samples

obtained by noninvasive procedures shall be sealed and

labeled with the subject's name, social security number, date

of birth, race, and gender plus the name of the person

collecting the sample and the date and place of collection.

The containers shall be secured to prevent tampering with

the contents. The steps set forth in this subsection relating to

the taking, handling, identification. and disposition of

samples are procedural and not substantive. Substantial

compliance therewith shall be deemed to be sufficient. The

samples shall be transported to the Division of Forensic

Sciences of the Georgia Bureau of Investigation not more

than 15 days following withdrawal and shall be analyzed and

stored in the DNA data bank in accordance with Code

Sections 24-4-62 and 24-4-63.

29a

§ 24-4-62. Procedures for analysis and storage of blood

sample; use of remainder of sample not subjected to

analysis; confidentiality of results.

Whether or not the results of an analysis are to be included

in the data bank, the bureau shall conduct the DNA analysis

in accordance with procedures adopted by the bureau to

determine identification characteristics specific to the

individual whose sample is being analyzed. The director of

the Georgia Bureau of Investigation or his or her designated

representative shall complete and maintain on file a form

indicating the name of the person whose sample is to be

analyzed, the date and by whom the sample was received and

examined, and a statement that the seal on the container

containing the sample had not been broken or otherwise

tampered with. The remainder of a sample submitted for

analysis and inclusion in the data bank pursuant to Code

Section 24-4-60 may be divided, if possible, labeled as

provided for the original sample, and securely stored by the

bureau in accordance with specific procedures of the bureau

to ensure the integrity and confidentiality of the samples. All

or part of the remainder of that sample may be used only to

create a statistical data base provided no_ identifying

information on the individual whose sample is being

analyzed is included or for retesting by the bureau to validate

or update the original analysis. A report of the results of a

DNA analysis conducted by the bureau as authorized,

including the identifying information, shall be made and

maintained at the bureau. Except as specifically provided in

this Code section and Code Section 24-4-63, the results of

the analysis shall be securely stored and shall remain

confidential.

30a

§ 24-4-63. Dissemination of information in data bank to

law enforcement officials; request for search; separate

Statistical data base authorized; fee for search and

comparative analysis.

(a) It shall be the duty of the bureau to receive samples

and to analyze, classify, and file the results of DNA

identification characteristics of samples submitted pursuant

to Code Section 24-4-60 and to make such information

available as provided in this Code section. The results of an

analysis and comparison of the identification of the

characteristics from two or more biological samples shall be

made available directly to federal, state. and local law

enforcement officers upon a request made in furtherance of

an official investigation of any criminal offense. A request

may be made by personal contact. mail. or electronic means.

The name of the requestor and the purpose for which the

information is requested shall be maintained on file with the

bureau.

(b)(1) Upon his or her request, a copy of the request for

search shall be furnished to any person identified and

charged with an offense as the result of a search of

information in the data bank. Only when a sample or

DNA profile supplied by the requestor satisfactorily

matches the requestor’s profile in the data bank shall the

existence of data in the data bank be confirmed or

identifying information from the data bank be

disseminated.

(2) The name of the convicted offender whose profile is

contained in the data bank may be related to any other

data bases which are constructed for law enforcement

purposes and may be disseminated only for law

enforcement purposes.

(3) Upon a showing by the defendant in a criminal case

that access to the DNA data bank is material to the

investigation, preparation, or presentation of a defense at

trial or in a motion for a new trial, a superior court having

3la

proper jurisdiction over such criminal case shall direct the

bureau to compare a DNA profile which has been

generated by the defendant through an independent test

against the data bank, provided that such DNA profile has

been generated in accordance with standards for forensic

DNA analysis adopted pursuant to 42 U.S.C. Section

14131, as amended.

(c) The bureau shall develop procedures governing the

methods of obtaining information from the data bank in

accordance with this Code section and procedures for

verification of the identity and authority of the requestor.

The bureau shall specify the positions in that agency which

require regular access to the data bank and samples

submitted as a necessary function of the job.

(d) The bureau may create a separate statistical data base

comprised of DNA profiles of samples of persons whose

identity is unknown. Nothing in this Code section or Code

Section 24-4-64 shall prohibit the bureau from sharing or

otherwise disseminating the information in the statistical data

base with law enforcement or criminal justice agencies

within or outside the state.

(e) The bureau may charge a reasonable fee to search and

provide a comparative analysis of DNA profiles in the data

bank to any authorized law enforcement agency outside of

the state.

§ 24-4-64. Unlawful dissemination or use of information;

obtaining sample without authority.

(a) Any person who, without authority, disseminates

information contained in the data bank shall be guilty of a

misdemeanor. Any person who disseminates. receives. or

otherwise uses or attempts to so use information in the data

bank. knowing that such dissemination, receipt, or use is for

a purpose other than as authorized by law, shall be guilty ofa

misdemeanor of a high and aggravated nature.

(b) Except as authorized by law, any person who, for

purposes of having DNA analysis performed. obtains or

32a _

attempts to obtain any sample submitted to the Division of

Forensic Sciences for analysis shall be guilty of a felony.

§ 24-4-65. Expungement of profile in data bank upon re-

versal and dismissal of conviction.

A person whose DNA profile has been included in the

data bank pursuant to this article may request that it be

expunged on the grounds that the conviction on which the

authority for including his or her DNA profile was based has

been reversed and the case dismissed. The bureau shall purge

all records and identifiable information in the data bank

pertaining to the person and destroy all samples from the

person upon receipt of a written request that such data be

expunged, pursuant to this Code section, and a certified copy

of the court order reversing and dismissing the conviction.

@

No. 04-1616

3n The

Supreme Court of the Anited States

¢

PAUL N. BOULINEAU AND JOHN W. BURNEY,

Petitioners,

Vz.

JAMES DONALD, COMMISSIONER OF THE

GEORGIA DEPARTMENT OF CORRECTIONS,

GEORGIA BUREAU OF INVESTIGATIONS, AND

GEORGIA DEPARTMENT OF CORRECTIONS,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

é

vw

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

,

vw

THURBERT E. BAKER

Attorney General for the

State of Georgia

KATHLEEN M. PACIOUS

Deputy Attorney General

JOHN C. JONES

Senior Assistant Attorney General

DAVID E. LANGFORD*

Assistant Attorney General

GEORGIA DEPARTMENT OF LAW

40 Capitol Square SW

Atlanta, GA 30334

(404) 463-8850

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a state statute mandating the extraction of a

DNA sample from all incarcerated convicted felons in the

state prison system violates the search and seizure provi-

sion of the Fourth Amendment.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

I. There Being No Conflict Between The Circuits,

The Petition Should Be Denied

II. The Court Below Properly Differentiated This

Case From This Court’s Decisions In City of

Indianapolis v. Edmond and Ferguson v. City

of Charleston Such That The Decisions Are Not

In Conflict

TABLE OF AUTHORITIES

CASES

Beaulieu v. United States, 497 U.S. 1038 (1990)

Bell v. Wolfish, 441 U.S. 520 (1979)

Board of Education v. Earls, 536 U.S. 822 (2002)

Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996)

City of Indianapolis v. Edmond, 531 U.S. 32 (2000)... 3, 10, 11

Ferguson v. City of Charleston, 532 U.S. 67 (2001)... 4, 10, i1

Green v. Berge, 354 F.3d 675 (7th Cir. 2004)

Groceman v. United States Dept. of Justice, et al.,

354 F.3d 411 (5th Cir. 2004)

Hudson v. Palmer, 468 U.S. 517 (1984)

Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), cert.

denied, 506 U.S. 977 (1992)

Padgett v. Donaid, 401 F.3d 1273 (11th Cir. 2004)

Padgett v. Ferrero, 294 F. Supp.2d 1338 (N.D. Ga.

Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995)

Roe ». Marcotte, 193 F.3d 72 (2d Cir. 1999)

Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D.

Wis. 1996)

Skinner v. Railway Labor Executives Assn., 489

U.S. 602 (1989)

Velasquez v. Woods, et al., 329 F.3d 420 (5th Cir.

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

2003), cert. denied, 540 U.S. 1083 (2003)

TABLE OF AUTHORITIES - Continued

Page

United States v. Kincade, 345 F.3d 1095 (9th Cir.

2005), rehearing granted by United States uv.

Kincade, 354 F.3d 1000 (9th Cir. 2004), vacated

by, rehearing, en banc, granted by United States

v. Kincade, 2004 U.S. App. LEXIS 89 (9th Cir.

United States v. Kincade, 379 F.3d 813 (9th Cir.

2004), cert. denied, 125S.Ct 1638 (2005) 9, 11, 14

United States v. Knights, 534 U.S. 112 (2001) 11, 12, 13

United States v. Martinez-Fuerte, 428 U.S. 543

(1976)

CONSTITUTIONAL AMENDMENTS:

I FO hos iaesacdtncsves sinesmnncdteeeosanen passim

FEDERAL STATUTES:

42 U.S.C. §1983

SUPREME COURT RULES:

Supreme Court Rule 10

GEORGIA STATUTES:

O.C.G.A. §24-4-60

O0.C.G.A. §24-4-63

STATEMENT OF THE CASE

Petitioners Boulineau and Burney are convicted felons

who were serving prison terms in the Georgia correctional

system when they intervened in a case which had been

filed originally by fellow convicted felon Padgett. The three

sued under 42 U.S.C. §1983 seeking court-ordered relief

from a statutory requirement that they allow Department

of Corrections personnel to take a sample of thar DNA

and submit it to the Georgia Bureau of Investagations

(GBI) for placement in a DNA database before their

release from incarceration. The Petitioners sought a ruling

that the statute requiring the giving of such a sample

violated their constitutional rights. They also sought an

injunction stopping the Defendants from taking their

samples or placing them in the database.’

In Padgett v. Ferrero, 294 F. Supp.2d 1338 (N.D. Ga.

2003), the trial court states that:

the material facts in the case are not in dis-

pute. In 2000, the Georgia general Assembly

amended OCGA §24-4-60 to require “any person

convicted of a felony and incarcerated in a state

correctional facility” to have a sample of his de-

oxyribonucleic acid (DNA) taken: (1) by swabbing

the inside of his mouth; (2) from a sample of his

blood; or (3) by some other non-invasive proce-

dure. {cit.| The DNA sample is to be ‘typed’ or

analyzed to determine the identifying character-

istics of the person from whom it was taken. Id.

The convict’s identifying information is to be

* Plaintiff Padgett became a non-party to the suit after he con-

sented to the taking of a DNA sample shortly before his release from

incarceration and moved to voluntarily dismiss his claims.

2

stored in a data bank maintained by the Georgia

Bureau of Investigation. Jd. The information in

the data bank may then be released directly to

federal, state, or local law enforcement upon a

“request made in furtherance of an official inves-

tigation of any criminal offense.” OCGA §24-4-

63(a).

294 F. Supp.2d at 1340.

The Court, in further describing the facts of the case,

noted that:

Department of Corrections’ policy dictates

that a member of the prison medical staff will

take a sample of [an inmate’s] DNA by using

swabs to collect saliva from the inside of his

mouth. Those swabs will then be sent to the

Georgia Bureau of Investigation for typing and

placement in the DNA database. Failure to com-

ply with the requirement to give a DNA sample

will subject the inmate to a disciplinary report,

followed by a hearing and disciplinary action by

prison staff. If the inmate still refuses to cooper-

ate, the sample will be taken by force.

Id., at 1341.

The District Court granted summary judgment for the

Respondents, saying that “{blecause DNA sampling is

reasonable — of the strong interests of the state and

the diminished privacy interests of the Plaintiffs, OCGA

§24-4-60 does not violate the Fourth Amendment.” Jd., at

1344. The Eleventh Circuit Court of Appeals upheld the

lower court’s decision, saying:

{blecause we believe that Georgia's legiti-

mate interest in creating a permanent identification

3

record of convicted felons for law enforcement

purposes outweighs the minor intrusion involved

in taking the prisoners’ saliva samples and stor-

ing their DNA profiles, given prisoners’ reduced

expectation of privacy in their identities, we ...

hold that the statute does not violate the Fourth

Amendment.

Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2004).

Following denial of a petition for rehearing, Petition-

ers filed their petition for writ of certiorari.

ry

Vv

SUMMARY OF THE ARGUMENT

The Eleventh Circuit correctly ruled that the taking of

a DNA sample from incarcerated convicted felons for

placement in a DNA database to be used in the investiga-

tion of both past and future crimes does not violate the

Petitioners’ Constitutional right and unreasonable search

or seizure in view of the state of the law. The decision is

consistent with the holdings of all other circuit courts

addressing the issue, as the Petitioners admit in their

petition, saying “the Circuit Courts which have addressed

the constitutionality of DNA collection statutes have found

them constitutional, ... ” Brief of Petitioners, p. 6. Peti-

tioners show the circuits are split only in their approach to

the means by which they find these statutes constitu-

tional: “[T]he courts are split,” they write, “on the proper

Fourth Amendment analysis to apply.” Respondents

submit this is an insufficient reason for this Honorable

Court to grant certiorari.

Furthermore, Respondents contend that Petitioners’

reliance on this Court’s decisions in City of Indianapolis v.

4

Edmond, 531 U.S. 32 (2000) and Ferguson v. City of

Charleston, 532 U.S. 67 (2001) in arguing for certiorari is

misplaced, in that those cases involved searches of free

citizens rather than those incarcerated for violating a

state’s felony laws. Respondents urge the Court to lock not

at cases involving free persons, but rather at cases involv-

ing prison inmates when determining the rights of the

individuals involved in the present action.

For these reasons, the petitions in the present case

should be denied.

REASONS FOR NOT GRANTING THE WRIT

There Being No Conflict Between The Circuits,

The Petition Should Be Denied.

There is no conflict between decisions of the federal

circuits as to the question at issue in the present case.

Respondents argue the conflict is not ripe for a writ of

certiorari at the present time. Supreme Court Rule 10(a)

clearly opens the door for this Court to grant certiorari

where “a United States court of appeals has entered a

decision in conflict with the decision of another United

States court of appeals on the same important matter.”

The Petitioners urge this Court to grant certiorari based

on differences as to what analysis is applied, not differing

results of that analysis.

“Rule 10 of the Rules of the Supreme Court ‘indicate

the character of reasons’ that will be considered in grant-

ing or denying petitions for certiorari. Among these con-

siderations is whether there is a conflict between two

courts of appeals,” wrote Justice White, dissenting to a

denial of a petition for a writ of certiorari in Beaulieu v.

5

United States, 497 U.S. 1038, 1039 (1990). Justice White,

who wrote almost regularly in dissent to such denials,

added that “[j]ust this past Monday, we granted certiorari

in two cases that, absent conflict between courts of ap-

peals, very likely would not have been granted. [cit.] This

is a weekly occurrence, but it also regularly happens that

certiorari is denied in other cases presenting the kind of

conflicts singled out by Rule 10.”

In Beaulieu, this Court declined to grant certiorari

where the issue was whether a district judge can rely on

testimony from the trial of a defendant’s co-conspirators in

sentencing that defendant. The Tenth Circuit had ex-

pressly rejected a position taken by the Eleventh Circuit

on the topic. Voting 8-1, this Court elected not to take up

the issue, with Justice White standing alone in dissent.

In stating the possible reasons for not taking certio-

rari, Justice White wrote that “[i]n some of these cases it is

perhaps arguable that the alleged conflict was not ‘real’ or

‘square’. In most cases, however, it is very difficult to deny

the conflict, especially where, as in this case, the court of

appeals expressly differs with another court, yet certiorari

is denied because the conflict is ‘tolerable’ or ‘narrow,’ or

because other courts of appeals should have the opportu-

nity to weigh in on one side or another of the unsettled

issue, or for some other unstated reason.” Jd.

It should be noted, Respondents urge, that this

Court’s rule clearly says the Court should consider

whether “a United States court of appeals has entered a

decision in conflict with the decision of another United

States court of appeal on the same important matter.” The

type of analysis used, Respondents argue, is not as impor-

tant as the result. Respondents also argue difference in

the type of analysis, rather than difference in result, does

not create the “real” difference to which Justice White

6

referred. The result of all circuit courts’ analysis of the

issue has been the same: Courts have repeatedly upheld

DNA database statutes as constitutional.

“Though, like fingerprinting, collection of a DNA

sample for purposes of identification implicates the Fourth

Amendment, persons incarcerated after conviction retain

no constitutional privacy interest against their correct

identification.” Groceman v. U.S. Dept. of Justice, et al.,

354 F.3d 411, 413-414 (5th Cir. 2004). Dealing with a

challenge to the federal DNA database law requiring

federal inmates to give a DNA sample for the FBI’s data-

base in Groceman, the Fifth Circuit said simply “(t]he

DNA Act [] does not violate the Fourth Amendment, and

its application does not infringe these plaintiffs’ constitu-

tional rights.” Id.

Burney and Boulineau in this case challenge a law

similar to that in Groceman: it requires that they, as

felony inmates in the Georgia prison system, give a DNA

sample to be placed in a database. They say it violates

their Fourth Amendment right against unreasonable

search and seizure.

“The Fourth Amendment to the United States Consti-

tution protects ‘the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures.’ [cit.]” Board of Education v. Earls,

536 U.S. 822, 122 S.Ct. 2559, 2564, 153 L.Ed.2d 735

(2002). In Earls, this Honorable Court said “we generally

determine the reasonableness of a search by balancing the

nature of the intrusion on the individual’s privacy against

the promotion of legitimate governmental interests. [Cit.]

But we have long held that ‘the Fourth Amendment

imposes no irreducible requirement of individualized

suspicion.’” Jd., citing United States v. Martinez-Fuerte,

428 U.S. 5438, 561, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

This Court has not granted certiorari on the constitu-

tionality of taking DNA from incarcerated convicts for the

purpose of filling a DNA database. However, several lower

courts, like the Fifth Circuit in Groceman, Supra, have

dealt with it and nearly all have ruled in the favor of the

states. The leading case on point with the present case is

Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), cert. denied,

at 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992).

In Jones, the Fourth Circuit was presented with a

challenge to Virginia’s DNA sample requirement by six

convicts. The challenged statute required all convicted

felons to submit blood samples for DNA analysis and the

creation of a databank for law enforcement purposes. Like

the statute presently before this Court, it required felons

serving time on the statute’s start date to give a sample

before their release.

Noting that this Honorable Court had previously

upheld a program requiring blood testing of an entire class

of rail workers in Skinner v. Railway Labor Executives

Assn., 489 U.S. 602, 625, 109 S.Ct. 1402, 102 L.Ed.2d 639

(1989), the Fourth Circuit said “[a]lgainst the minor

intrusion, ... we weigh the government’s interest in

preserving a permanent identification record of convicted

felons for resolving past and future crimes.” 962 F.2d, at

307. The Court found the intrusion caused by the taking of

blood to be outweighed by Virginia’s interest in solving

past and future crimes.

Other federal courts have also upheld similar statutes

under Fourth Amendment attacks. See Boling v. Romer,

101 F.3d 1336 (10th Cir. 1996); Rise v. Oregon, 59 F.3d