# Petition for Writ of Certiorari — Nicholas v. Goord (No. 06-131)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

Supreme Court, U.S.
FILED

: Ny
No.06-___ QQ &-1 31 JUL 25 2006

Semedoee
er

OFFICE OF THE CLERK

IN THE

Gnited States Supreme Court

i

JASON B. NICHOLAS, JOHN LEWIS, PHILIP RABENBAUER,
FRANK SOLIMINE, ROBERT PACINI, CHESTER FLANDERS,
BENNIE BATES, LYMOND STEPHENSON, LUIS MEJIA,
CECIL BARROW, and DOMINIC DERUGGIERO,

Petitioners,
Vz.

GLENN GOoorD, New York State Department of Correctional Services;
KATHERINE LAPP, New York State Division of Criminal Justice
Services; MEDILABS, INC.; and JESSICA WALSH,

Respondents.

On Petition for a Writ of Certiorari
to the United States Court of Appeals for the Second Circuit

~

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH L. KOOB*

JOAN MAGOOLAGHAN
ALEXANDER A. REINERT
Koos & MAGOOLAGHAN

19 Fulton Street — Suite 408
New York, New York 10038
212-406-3095

Counsel for Petitioners
* Counsel of Record

July 24, 2006

QUESTION PRESENTED

Does a State violate the Fourth Amendment when it forcibly

collects and analyzes blood and DNA from individuals without a
warrant or any individualized suspicion of criminal wrongdoing,
where such collection and analysis is solely for the purpose of
creating a DNA database for use in solving crimes?

TABLE OF CONTENTS
QUESTION PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

SEAT CHEESE GE COM RIININS 365 orb d peut esse eb eer es 3
REASONS FOR GRANTING THE PETITION

CERTIORARI SHOULD BE GRANTED
BECAUSE THE SECOND CIRCUIT’S
DECISION CONFLICTS WITH
CONTROLLING SUPREME COURT
PRECEDENT

A. The Court of Appeals’ Decision Conflicts
with this Court’s “Special Needs”
Precedent

The Second Circuit’s Decision Clashes
with this Court’s Reasoning in //linois v.
Lidster

The Court of Appeals Misconstrued the
Purpose of the “Special Needs”
ND, 5 6 Saeed oe ok oa 1}

CONCLUSION

The Petition Should Be Granted to
Correct the Appellate Court’s Erroneous
Balancing Analysis

THE SECOND CIRCUIT’S DECISION
BROADLY UNDERMINES THE PRIVACY
i EP REO Ee 6 bo .. Sr ee 15

THERE IS A SPLIT WITHIN CIRCUITS
REGARDING HOW TO ANALY WE DNA
DATABANK LAWS

TABLE OF AUTHORITIES
CASES
Arkansas v. Sullivan, 532 U.S. 769 (2001)
Bell v. Wolfish, 441 U.S. 520 (1979)

Board of Educ: of Indep. Sch. 3 Dist. No. 92 of Pottawatomie
County v. Earls, 536 U.S. 822 (2002)

Camara v. Municipal Court, 387 U.S. 523 (1967)
Chandler v. Miller, 520 U.S. 305 (1997)
Chimel v. California, 395 U.S. 752 (1969)

Citv of Indianapolis v. Edmond, 531 U.S. 32 (2000)
11, 13, 14, 22

Ferguson v. City of Charleston, 532 U.S. 67 (2001) 5, 8-10,
12, 14, 23

Flippo v. West Virginia, 528 U.S. 11 (1999)

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

Griffin v. Wisconsin, 483 U.S. 868 (1987)

Groceman v. United States Dept. of Justice, 354 F.3d 411 (Sth Cir.
Boe oe CSE EG eyes Cet ae eee eae 21

Harrison v. Barkley, 219 F.3d 132 (2d Cir. 2000)
Henry v. United States, 361 U.S. 98 (1959)

Hudson v. Palmer, 468 U.S 517 (1984) .............2-205.

Illinois v. Lidster, 540 U.S. 419 (2004) ............. 12, 13, 18

Johnson v. Quander, 440 F.3d 489 (D.C. Cir. 2006) petition for
I i gai cin Seeks Fie o bh ie canes ie eee 2)

Jones v. Murray, 962 F.2d 302 (4" Cir. 1992), cert. denied 506

CR SE CREE sc Wiclo'd ped co ee asians ei dies Coan cae ea 22
Katz v. United States, 389 U.S. 347 (1967) ............0005. 6
Kyllo v. United States, 533 U.S. 27 (2001) ............24.. 20
Matter of Abe A., 437 N.E.2d 265 (N.Y. 1982) ............. 13

Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)

ea ears es wis aw ye nid A 6 nagar era's oh etd eee ae 7, 11
Mincey v. Arizona, 437 U.S. 385 (1978) .............0.. 8, 18
New Jersey v. T.L.O., 469 U.S. 325 (1985) ....... $. 7, 8:16, 17
New York v. Burger, 482 U.S. 691 (1987) ............... 7, 16
O'Connor v. Ortega, 480 USS. PEE EEE oes cekbee ns 14, 17
Padgett v. Donald, 401 F.3d 1273 (11th Cir.), cert. denied sub

SE Se tae EE CED © is ak AS oS lke ha ORR oe ee 21
Payton v. New York, 445 U.S. 573 (1980) ................. 19
Samson v. California, 126 S. Ct. 2193 (2006) ..........7... 22
Schmerber v. California, 384 U.S. 757 (1996) .............. 8
Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602

I Arar aa ea gin erate PRA ATCA R yw Ee 14, 16-18
foe te SS eee g

United States v. Conley, No. 05-5900, __ F.3d __, 2006 WL
Saree Cee Co, BURN Fo OO 6s 6 bo occ pes tecesseress 22
United States v. Kimler, 335 F.3d 1132 (10th Cir.), cert. denied

Pa PORE OEE 0s VETERE SAR Obi OE Meee RIN GRIER ERS 21

se

United States v. Kincade, 379 F.3d 813 (9th Cir. 2004), cert.
PE, De Ue ET CRO civic cn badcan pe esnehinnrs 21

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

United States v. Kraklio, No. 06-1369, __ F.3d __, 2006 WL
1736389 (8" Cir. June 27, 2006)

United States v. Sczubleck, 402 F.3d 175 (3d. Cir. 2005), cert.
denied,\126 S. Ct. 2930 (2006)

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)

Williams v. Greifinger, 97 F.3d 699 (2d Cir. 1996)

CONSTITUTIONAL PROVISIONS

U. S. Const. amend. IV

U.S. Const. amend. XIV

STATUTES

28 U.S.C. § 1343(a)(3)
Fed. R. Civ. P. 12(b)(6)

N.Y. Exec. Law § 995-a (Consol. 1999) ................... 3

“N.Y. Exec. Law § 995-c (Consol. 1999)

PETITION FOR WRIT OF CERTIORARI

Jason B. Nicholas, Philip Rabenbauer, Frank Solimine,
Robert Pacini, Chester Flanders, Bennie Bates, Lymond Stephenson,
Dominic DeRuggiero, Luis Mejia, Cecil Barrow, and John Lewis
respectfully petition this Court for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Second
Circuit entered on November 28, 2005, panel rehearing and rehearing
en banc denied April 26, 2006.

OPINIONS BELOW

The decision of the United States Court of Appeals for the
Second Circuit is reported at 430 F.3d 652 (2d. Cir. 2005). See also.
App. la-48a.' The district court’s opinion is reported at No. 01 Civ.
7891, 2004 WL 1432533 (S.D.N.Y. June 24, 2004). See also App.
50a-6 la.

JURISDICTION

The opinion and judgment of the Court of Appeals for the
Second Circuit were entered on November 28, 2005. Petitioners
timely moved for panel rehearing and rehearing en banc. Both
motions were denied on April 26, 2006. See App. 49a. This petition
is timely submitted pursuant to this Court’s Rule 13.3. The
jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS -
INVOLVED

The United States Constitution, Amendment IV reads:

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

=

' References to the Appendices to this Petition are styled “App. __a.”

Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.

The New York State DNA Identification Index Law, N.Y. Exec.

Law § 995-c(Consol. 1999), reads in relevant part:

* * *

(3) Any designated offender subsequent to
conviction and sentencing for a felony specified in
subdivision seven of section nine hundred ninety-
five of this article shal] be required to provide a
sample appropriate for DNA testing to determine
identification characteristics specific to such person
and to be included in a state DNA identification
index pursuant to this article.

x * *

(5) The sample shall be collected, stored and
forwarded to any forensic DNA laboratory which
has been authorized by the commission to perform
forensic DNA testing and analysis for inclusion in
the state DNA identification index. . . . Such
laboratory shall perform DNA analysis only for
those markers having value for law enforcement
identification purposes. . . .

(6) DNA records contained in the state DNA
identification index shall be released only for the
following purposes:

(a) to a federal law enforcement agency, or
to a state or local law enforcement agency
or district attorney’s office for law
enforcement identification purposes upon
submission of a DNA record in connection
with the investigation of the commission of

one or more crimes or to assist in the
recovery or identification of specified
human remains, including identification of
missing persons, provided that there exists
between the division and such agency a
written agreement governing the use and
dissemination of such DNA records in
accordance with the provisions of this
article; ....

STATEMENT OF THE CASE

In 1994, New York created a Commission on Forensic
Science (““Commission’’) and authorized the Commission to create a
computerized collection of DNA profiles (“DNA databank”). N.Y.
Exec. Law § 995-a (Consol. 1999). The data for the DNA databank
are collected from individuals convicted of a designated set of
offenses. Id. § 995-c(3). Petitioners are current and former prisoners
who are subject to the DNA databank statute’s requirements.

On August 23, 2001, petitioners filed a pro se complaint,
maintaining that the suspicionless and warrantless extraction of
blood, and subsequent analysis and retention of bodily fluids by
appellees pursuant to the DNA databank statute, violates the Four...
Amendment.’ The district court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1343(a)(3).

Petitioners, some of whom have been released from prison,
are among the least likely of all offenders covered by the DNA
databank to commit new crimes. (Joint Appendix on Appeal (“JA”)
32, JA77.) Respondents collected petitioner's DNA by drawing
blood. The blood draws have at no time been carried out pursuant to
a warrant or based on individualized suspicion. The nonconsensual
suspicionless extraction of blood samples for the DNA databank is
an ongoing practice that is accomplished through threat of “physical
force and other punishments, including solitary confinement and loss

>The DNA databank law has been amended subsequent to the institution of
Petitioner's lawsuit. None of the amendments is material to Petitioners’ challenge
to the constitutionality of the databank.

of good-time credits.” (Compl. { 10.) The blood is analyzed “only
for those markers having value for law enforcement identification
purposes.” N.Y. Exec. Law § 995-c(5) (emphasis added).
Respondents moved to dismiss petitioners’ complaint
pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the suspicionless
and warrantless extraction of petitioners’ blood did not violate the
Fourth Amendment. The central dispute between the parties below
was whether the DNA databank could be upheld under the “special
needs” exception to the Fourth Amendment’s general presumption in
favor of a warrant and individualized suspicion. See New Jersey v.
T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in
judgment) (introducing “special needs” framework). As this Court
has clarified the “special needs” test, suspicionless and warrantless
searches are generally only permitted when the purpose of the search
is divorced from law enforcement needs. See Ferguson v. City of
Charleston, 532 U.S. 67, 83-84 (2001). The district court dismissed
petitioners’ complaint pursuant to Fed. R. Civ. P. 12(b)(6), applying
the Fourth Amendment’s general balancing test instead of the
“special needs” test. See App. 55a-59a. The district court
recognized that the DNA databank was unlikely to pass muster under
the “special needs” test, precisely because the databank’s purpose
was inextricably linked to law enforcement needs. /d. 57a-58a.
Petitioners filed a timely appeal. The Court of Appeals for
the Second Circuit had jurisdiction pursuant to 28 U.S.C. § 1291. In
a decision announced on November 28, 2005, the Second Circuit
upheld the decision, but not the district court’s reasoning.’ The
Second Circuit agreed with petitioners that the district court had
erred by applying a general Fourth Amendment balancing test to the
DNA databank statute without first asking whether the collection of
DNA meets the “special needs” test. See App. 18a-24a. The Second
Circuit, however, found that such a special need existed because the
databank’s primary purpose is to “create a DNA database to assist in
solving crimes should the investigation of such crimes resort to DNA

‘Although each judge on the panel joined Chief Judge Walker's majority opinion,
Judge Leval and Judge Lynch each wrote separately to explain the basis for their
decision. See App. 32a-42a (Leval, J., concurring): 42a-48a (Lynch, D_J.,
CONCUITING).

testing of evidence.” /d. 25a (internal quotation marks omitted). The
appellate court reasoned that such a purpose was a special need
because the DNA samples “provide no evidence in and of themselves
of criminal wrongdoing, and are not sought for the investigation of
a specific crime.” /d. 26a (internal quotation marks omitted). The
Second Circuit then concluded, balancing the government’s interest
in maintaining the DNA databank against the intrusion on appellants’
privacy, that the challenged searches and seizures were reasonable.

Petitioners requested panel rehearing and rehearing en banc
of the Second Circuit’s decision. On April 26, 2006, the Second
Circuit denied both motions. /d. 60a.

REASONS FOR GRANTING THE PETITION

CERTIORARI SHOULD BE GRANTED BECAUSE
THE SECOND CIRCUIT’S DECISION CONFLICTS
WITH CONTROLLING SUPREME COURT
PRECEDENT

The Fourth Amendment secures “[t]he right of the people .
.. in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV, XIV. This Court has

held that “[t]o provide the necessary security against unreasonable
intrusions upon the private lives of individuals, the framers of the
Fourth Amendment required adherence to judicial processes
wherever possible.” Chimel v. California, 395 U.S. 752, 758-759
(1969) (internal quotation marks omitted). Particularly relevant to
this case, this Court has held that a search or seizure is presumptively
unreasonable when it is not supported by individualized suspicion.
E.g., City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (“A
search or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing.” ); Katz v. United States, 389
U.S. 347, 357 (1967) (“[S]Jearches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment.”). Consequently,
because the searches and seizures of petitioners’ blood and DNA
were carried out absent individualized suspicion or a warrant, basic
Fourth Amendment principles require the State to show that it is

entitled to invoke one of the-imited exceptions to the usual
requirements of the Fourth Amendment. See, e.g., Vernonia School
Dist. v. Acton, 515 U.S. 646 (1995) (upholding random drug-testing
of student athletes); Michigan Dept. of State Police v. Sitz, 496 U.S.
444 (1990) (finding sobriety checkpoint constitutional); New York v.
Burger, 482 U.S. 691 (1987) (permitting administrative search of
closely regulated business).

One exception to the Fourth Amendment’s genera!
requirement of a warrant and individualized suspicion is where
“special needs, beyond the normal need for law enforcement, make
the warrant and probable-cause requirement impracticable.” T.L.O.,
469 U.S. at 351 (Blackmun, J., concurring in judgment) (emphasis
added). To satisfy the “special needs” exception, the Government
must meet a two step test: first, it must articulate a need for the
search or seizure that is not directed toward vindicating law
enforcement needs; and second, it must show that requiring
conformity to the Fourth Amendment’s strict warrant and probable
cause requirement would be impracticable, given the balance
between the special need asserted by the state and the privacy
interests asserted by the subject of the search or seizure.

The principle behind the “special needs” exception is
straightforward and consistent with other exceptions to the Fourth
Amendment’s requirements. Where the State seeks to obtain
information that’ would under normal circumstances require
application to a judicial officer for a warrant issued on probable
cause, then the State must show that there is a good reason that
justifies suspension of the warrant and probable cause requirements.
E.g., Chandler v. Miller, 520 U.S. 305, 318-19 (1997) (the key
question for evaluating a “special need” is whether the government
can paint to any “concrete danger demanding departure from the
Fourth Amendment’s main rule”); Mincey v. Arizona, 437 U.S. 385,
393 (1978) (“|A] warrantless search must be ‘strictly circumscribed
by the exigencies which justify its initiation.”” (quoting Terry v.
Ohio, 392 U.S. 1, 25--26 (1968))); Chimel v. California, supra
(search of arrested suspect and area within his control for weapons
or evidence); Warden v. Hayden, 387 U.S. 294, 298-300 (1967) (“hot
pursuit” of fleeting suspect); Schmerber v. California, 384 U.S. 757,
770- 771 (1996) (imminent destruction of evidence). The Second

Circuit’s decision, however, conflicts with both the letter and spirit
of the “special needs” test, as it has been articulated and applied by
this Court.

The Court of Appeals’ Decision Conflicts with
this Court’s “Special Needs” Precedent

The “special needs” test originated with Justice Blackmun’s
suggestion that certain warrantless and suspicionless searches may
be “reasonable” under the Fourth Amendment, where they vindicate
a “special need[], beyond the normal need for law enforcement” that
makes the warrant and probable cause requirements “impracticable.”
T.L.O., 469 U.S. at 351 (Blackmun, J., concurring in judgment).
Since 7.L.O., this Court has clarified that an absolute requisite of the
“special needs” exception is that “the ‘special need’ . . . advanced as
a justification for the absence of a warrant or individualized
suspicion [be] one divorced from the State’s general interest in law
enforcement.” Ferguson, 532 U.S. at 79.

The Second Circuit held that searches pursuant to the DNA
databank law fall under the “special needs” exception to the Fourth
Amendment protection against warrantless and _ suspicionless
searches, despite the law’s fundamental purpose of generating
evidence for use in criminal prosecution. This reasoning directly
conflicts with this Court’s most analogous “special needs” holding:
Ferguson v. City of Charleston, supra. In Ferguson, this Court
considered a challenge to a search regime under which pregnant
women were subjected to drug testing at a local hospital, in which
the results of the testing were used in subsequent criminal
prosecutions. The Court found that the suspicionless drug testing
program could not be squared with the Fourth Amendment because
of the intimate involvement of the police and law enforcement in
designing the program and in effectuating arrests under the program.
Id. at 82-83. In so doing, the Court clarified that under the “special
needs” test, even benign motives cannot save the constitutionality of
a program which contemplates “the pervasive involvement of law
enforcement with the development and application” of the program,
such as is present in the instant case. /d. at 85; see also id. at 88

(“The traditional warrant and probable-cause requirements are
waived in our previous cases on the explicit assumption that the
evidence obtained in the search is not intended to be used for law
enforcement purposes.”) (Kennedy, J., concurring in the judgment).
Nonetheless, here the Second Circuit’s decision expressly
contemplates that evidence collected through the DNA databank
regime will be used primarily, if not solely, for the purpose of
solving crime. See App. 25a-26a. This contravenes this Court’s
holding in Ferguson that suspicionless searches will fail the special
needs test where “the immediate objective of the searches [is] to
generate evidence for law enforcement purposes.” 532 U‘S. at
83-84. The DNA databank statute is nothing other than a
codification of the State’s attempt to collect evidence to be used to
investigate and prosecute “ordinary criminal wrongdoing.” City of
Indianapolis v. Edmond, 531 U.S. 32, 41 (2000). This is not a
legitimate purpose under the “special needs” analysis, and never has
been. Ferguson, 532 U.S. at 83 n.20 (“In none of [the Supreme
Court’s| previous special needs cases ha[s] [the Court] upheld the
collection of evidence for criminal law enforcement purposes.”).
The Second Circuit attempted to distinguish Ferguson, and
other “special needs” cases which confirm Ferguson’s general
approach, by stating that it is “crucial” that the DNA databank is not
directed toward investigating a specific crime or to seeking evidence
that the individual being searched has engaged in specific criminal
conduct. See App. 26a. But the Second Circuit’s distinction itself
conflicts with basic principles of the Fourth Amendment and
controlling Supreme Court authority. The relevant cases simply do
not support the Second Circuit’s conclusion that a special need is
present wherever the government searches for evidence related to
unknown or unspecified crimes. Indeed, in Ferguson, the
government did not have any individualized suspicion that the
plaintiffs had engaged in any “specific crime,” and this was precisely
why the Court applied the “special needs” test and ultimately
declared the program unconstitutional. 532 U.S. at 82 (referring to
“range of possible criminal charges” that could be brought against
plaintiffs). Indeed, the Second Circuit's approach suggests that a
lack of individualized suspicion itself would aid in satisfying the
“special needs” test because, where law enforcement is collecting

evidence without reference to a particular crime, it is by definition
engaged in a suspicionless search. But the “special needs” test
would be meaningless if — as the Second Circuit suggests — the lack
of suspicion both triggered the requirement of a “special need,” and
at the same time satisfied the requirement.

Confirming this fundamental Fourth Amendment principle,
in City of Indianapolis v. Edmond, supra, in which the Court
reviewed a drug interdiction checkpoint for motor vehicles, the
program’s broad undifferentiated approach to criminal law
enforcement made it less permissible, not more so. 531 U.S. at 43
(contrasting the “smaller class of offenses” targeted by Michigan
Dept. of State Police v. Sitz, 496 U.S. 444 (1990), with the broader
set of crimes targeted by Indianapolis’s drug interdiction
checkpoint); id. at 44 (refusing to “sanction stops justified only by
the generalized and ever-present possibility that interrogation and
inspection may reveal that any given motorist has committed some
crime”) (emphasis added).* The DNA databank’s broad purpose to
collect evidence for use in the prosecution of any crime, without any
individualized suspicion, does not detract from the obvious
conclusion that its primary purpose is to collect evidence for use in
criminal prosecution of the sampled population. Instead, this broad
purpose only confirms the unconstitutionality of the databank.
Certiorari should be granted to resolve the clear conflict between the
Second Circuit’s decision below and this Court’s holding in
Ferguson.

B. The Second Circuit’s Decision Clashes with this
Court’s Reasoning in Jilinois v. Lidster

The Second Circuit recognized that the language and

* The only Fourth Amendment intrusion at issue in Edmond ¥ as a checkpoint
stop and the only fact revealed by the stops at issue in Ednvond was identification
of the individuals driving on the highway. As in this case “sis fact does not relate
to any specific crime, nor does it provide evidence tht in ...d of itself establishes
criminal wrongdoing. Moreover, although Edmond . ved arrests for crimes
both related and unrelated to drugs, 521 U.S. at 34,i* ~enoreme Court did not
suggest that the checkpoints were only unconstitutiona! » to those drivers who
were arrested for drug offenses.

reasoning of Ferguson and Edmond raise serious doubts about the
constitutionality of the DNA databank. See App. 33a (Leval, J.,
concurring). Hlowever, the appellate court concluded that the
Supreme Court’s decision in ///inois v. Lidster, 540 U.S. 419 (2004),
supports the conclusion that a “special need” is present where a
search gathers evidence for future criminal prosecution of
unspecified crimes. See App. atl 6a-17a; 26a; 33a-36a. As an initial
matter, the reliance on Lidster to support a novel interpretation of the
“special needs” doctrine is curious, because Lidster was a checkpoint
seizure case, and not a “special needs” search case. This Court has
emphasized that a balancing analysis, rather than a “special needs”
analysis, applies to vehicle checkpoint cases like Lidster. Ferguson,
534 U.S. at 83 n.21.

Even assuming that Lidster applies to the suspicionless
searches challenged here, however, Lidster’s reasoning contradicts
the Second Circuit’s conclusion. In Lidster, this Court upheld the
constitutionality of a highway checkpoint in which police stopped
motorists to ask for information about a recent hit-and-run accident.
The Lidster Court based its holding on several reasons that are
pertinent to this case and which are ignored by the Second Circuit’s
decision. First, this Court noted that the police in Lidster had a
primary purpose “to help them apprehend, not the vehicle’s
occupants, but other individuals.” 540 U.S. at 423. This is in direct
contrast to the DNA databank at issue here, and the searches and
seizures struck down in Ferguson and Edmond, in which the purpose
of the government intrusion is to collect evidence to be used against
the individuals being searched and seized.

The Lidster Court also distinguished the seizures at issue in
Edmond because “the context here (seeking information from the
public) is one in which, by definition, the concept of individualized
suspicion has little role to play.” 540 U.S. at 424-25. Collecting
blood for the purpose of criminal prosecution, on the other hand, is
a context in which individualized suspicion has traditionally played
a large role. Indeed, as an ordinary matter, if the State were
investigating a particular crime, a warrant and probable cause would
be necessary to draw appellants’ blood. Matter of Abe A., 437
N.E.2¢ 265, 266 (N.Y. 1982). By contrast, as the Lidster Court
pointed out, police are generally free to seek the voluntary

cooperation of citizens in investigating crime. 540 U.S. at 426. The
Lidster decision simply prevented the anomalous result whereby
police would be permitted “to seek the voluntary cooperation of
pedestrians” but not “to seek similar voluntary cooperation from
motorists.” /d. Here, instead of preventing an anomalous legal
result, the Second Circuit has created one: that is, that ordinarily
individuals cannot be required to provide a blood sample for
investigation of a crime absent individualized suspicion, but that,
where the State seeks to compel a broad category of individuals to
provide blood, it may be done provided that the evidence will be used
in prosecuting any number of unspecified crimes.

Finally, Lidster distinguished Edmond in a way that is fatal
to the prime justification offered by the Second Circuit in support of
its decision, by contrasting the stop’s permissible objective “to help
find the perpetrator of a specific and known crime” with the
impermissible stops at issue in Edmond, which were designed to
assist in the investigation of “unknown crimes of a general sort.”
540 U.S. at 427. Thus, Lidster sharply contradicts the Second
Circuit's assertion that, because the DNA databank is not aimed at
investigating a specific crime, it is permissible under the Fourth
Amendment. The DNA databank is much more analogous, if not
indistinguishable, from the impermissible searches and seizures at
issue in Edmond and Ferguson.

Cc. The Court of Appeals Misconstrued the Purpose
of the “Special Needs” Exception ~

As a general matter, this Court has ruled that, so long as a
search or seizure complies with the Fourth Amendment’s
requirements, there is no role for consideration of the subjective
intent of the police officer. Arkansas v. Sullivan, 532 U.S. 769, 772
(2001). The “special needs” test is an exception to this general rule
that courts are not to examine whether the justification offered in
support of a search is pretextual. Skinner v. Railway Labor
Executives’ Ass'n, 489 U.S. 602, 621 n.5 (1989). Thus, when the
Court spoke in Ferguson of conducting a “close review” of the
justifications for the challenged searches, it was to ensure that the
government did not mask its law-enforcement purpose by adverting

to the other socially beneficial goals of the challenged search regime.
532 U.S. at 81.

The Second Circuit takes this distinction between ultimate
and primary purpose, however, and turns it on its head. Fhe Second
Circuit acknowledges that the ultimate purpose of the DNA
databank, like the primary purpose of the regimes challenged in
Edmond and Ferguson, is to “help law enforcement identify the
perpetrator of a crime.” See App. 27a. But the Second Circuit finds
that the databank should nonetheless be excused from the general
prohibition on suspicionless searches for the purpose of law
enforcement, because its “primary purpose” is only the identification
of a particular class of offenders. /d. This is a perverse
interpretation of Ferguson because, unlike in Ferguson, here the
State has not articulated an ultimate purpose unrelated to law
enforcement in support of the DNA databank. Therefore, there is no
need to inquire whether this ultimate purpose is simply a pretext for
a different, primary purpose that is ultimately indistinguishable from
law enforcement goals. Here, there can be no question that solving
and prosecuting crime is the driving force behind the DNA databank.

Characterizing the “primary purpose” of the databank as being
different because it relates to identification creates an artificial
distinction between the ultimate goal of the databank and the means
by which the databank accomplishes that goal.

D. The Petition Should Be Granted to Correct the
Appellate Court’s Erroneous Balancing Analysis

The writ of certiorari is also appropriate because the Second
Circuit’s balancing analysis contravenes controlling Supreme Court
authority~— First, the Second Circuit assumed, incorrectly, that
appellants suffered a minimal intrusion because prisoners “are
routinely subject to medical procedures, including blood draws.” See
App. 28a. This assumption contradicts the record evidence showing
that prisoners cannot be compelled to submit to medical
examinations and blood tests against their will (JA22, JA46), and
longstanding authority supporting a prisoner’s right to refuse medical
care. Harrison v. Barkley, 219 F.3d 132, 140 (2d Cir. 2000);
Williams v. Greifinger, 97 F.3d 699, 701 (2d Cir. 1996).

Second, the Court of Appeals incorrectly assumed that the
DNA databank accomplishes a minimal intrusion because the DNA
samples were only analyzed for so-called “junk DNA,” and not other
more private information. See App. 29a. By focusing on the actual
use to which the sample is put rather than the potential use of the
sample, the Second Circuit ignored contrary Supreme Court authority
which measures the intrusiveness of the search by the potential
amount of information revealed, not by the actual information
revealed. E.g., Skinner, 489 U.S. at 617 (breath test and urinalysis
intrude upon legitimate expectation of privacy because the material
collected “can reveal a host of private medical facts about an
employee,” even though sample was only tested ‘«¢ presence of
drugs).

Finally, after incorrectly balancing the interests at issue in
this case, the Second Circuit misapplied controlling Supreme Court
authority which requires that the government demonstrate that the

- warrant and probable cause requirements are “impracticable.” See,
e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. at 663-64 (1995).
This Court has excused the absence of a warrant in past “special
needs” cases largely because of the burden imposed by the delay
necessary to obtain a warrant. See Skinner, 489 U.S. at 631 (burden
of obtaining warrant would frustrate government purpose behind the
search, because of potential elimination of drugs from bloodstream);
Griffin v. Wisconsin, 483 U.S. 868, 876 (1987) (finding warrant
impracticable because it would interfere with probation system and
would cause undue delay); New York v. Burger, 482 U.S. 691,
710-11 (1987) (requiring warrant would diminish element of surprise
which was important to government’s legitimate interests);
O'Connor v. Ortega, 480 U.S. 709, 720 (1987) (plurality op.)
(exception to warrant requirement permitted where obtaining burden
will “frustrate the governmental purpose behind the search’); 7.L.O.,
469 U.S. at 340 (obtaining warrant would “unduly interfere with the
maintenance of the swift and informal disciplinary procedures
needed in the schools”). And this Court has excused the absence of
individualized suspicion for other reasons which are not implicated
here. Board of Educ. of Indep. Sch. 3 Dist. No. 92 of Pottawatomie
County v. Earls, 536 U.S. 822, 837 (2002) (requiring individualized
suspicion would place “additional burden on public school teachers”

and might “unfairly target members of unpopular groups”); Acton,
S15 U.S. at 663-64 (referring to shame of being selected for drug
testing, impracticability of obtaining parental consent, and additional
tasks for teachers for which they are “ill prepared”); Skinner, 489
U.S. at 631 (requirement of individualized suspicion is “unrealistic,
and inimical to the Government’s goal of ensuring safety in rail
transportation”); Griffin, 483 U.S. at 878-79 (probable cause
requirement is incompatible with ongoing supervisory relationship
and because probation agency “must be able to act based upon a
lesser degree of certainty than the Fourth Amendment would
otherwise require in order to intervene before a probationer does
damage to himself or society”); O’Connor, 480 U.S. at 723-25
(probable cause standard inappropriate in work context because it is
“rooted . . . in the criminal investigatory context,” because employer
has different interest than law enforcement, and because of delay
inherent to only being able to act on probable cause); 7.L.0., 469
U.S. at 343 (probable cause impracticable because Court wanted to
“spare teachers and school administrators the necessity of schooling
themselves in the niceties of probable cause and permit them to
regulate their conduct according to the dictates of reason and
common sense’’).

As the relevant cases demonstrate, context is critical in
assessing the “impracticability” of the warrant and probable cause
requirement. The Second Circuit ignored this context-driven inquiry,
finding instead that the Fourth Amendment’s presumptive
requirements were impracticable with the following tautological
reasoning: “Obtaining a warrant requires probable cause, . . . which
obviously does not exist in the context of suspicionless searches;
requiring a warrant from law enforcement would thus plainly be
‘impracticable.’ See App. 3la. This is a toothless version of the
impracticability test, and if accepted would make the test
meaningless when reviewing suspicionless searches. The Second
Circuit’s reasoning ignores the lesson from relevant cases that
context is critical in assessing the “impracticability” of both the
warrant and probable cause requirements. Here, where appellants
were confined in prison when their blood was extracted, none of the
reasons that have been relied upon by the Supreme Court in the past
(delay, or interference with a custodial relationship) apply. F.g.,

Acton, 515 U.S. at 663-64; Skinner, 489 U.S. at 631; Griffin, 483
U.S. at 878-79." The Second Circuit’s decision does not articulate
how the DNA databank fits within this longstanding requirement,
other than to state, essentially, that the Constitution does not require
individualized suspicion in this case because a requirement of
individualized suspicion would defeat the DNA databank’s purpose.
But this explanation assumes the constitutionality of the challenged
database, and leads to an evisceration of the warrant and probable
cause requirements. If States may dispense with the Fourth
Amendment’s presumptive requirements simply by pleading an
inability to satisfy them, the constitutional protections of a warrant
and probable cause would be rendered meaningless. Mincey v.
Arizona, 437 U.S. 385, 393-94 (1978) (“The investigation of crime
would always be simplified if warrants were unnecessary.”); Payton
v. New York, 445 U.S. 573, 602 (1980) (policy arguments in favor of
permitting warrantless felony arrest made in the home “must give
way to a constitutional command that we consider to be
unequivocal”). Because the Second Circuit’s balancing test conflicts
with controlling decision of this Court, certiorari should be granted.

II. THE SECOND CIRCUIT’S DECISION BROADLY
UNDERMINES THE PRIVACY RIGHTS OF ALL
CITIZENS

The Second Circuit’s analysis implies that the Fourth
Amendment has less force when the State is farther removed from
investigating specific crimes and is collecting evidence tangentially
related to guilt rather than direct evidence of criminal wrongdoing.
This approach ignores the significant history of the Fourth
Amendment, adopted in response to British abuse of the general
warrant, which permitted customs officials to enter any; home to

* The Second Circuit points to Lidster and farls as examples of “special needs”
cases where the Court did not make an explicit finding of impracticability. See
App. 3a. Putting aside the fact thar Lidster is not a “special needs” case,
however, the Court did specifically find that individualized suspicion does not fit
within the context of “an information-seeking stop.” 540 U.S. at 425. And while
the decision in Ear/s docs not specifically refer to the “impracticability” test, the
Earls Court relies on Acton’s impracticability holding for the proposition that
individualized suspicion is inappropriate in the school drug testing context. 536
U.S. at 837.

search without particularized suspicion. Henry v. United States, 361
U.S. 98, 100-02 (1959); United States v. Verdugo-Urquidez, 494
U.S. 259, 267 (1990) (“driving force” behind the Amendment was
hostility to general search warrants). General warrants were issued
not based on suspicion that a particular individual had violated a
particular crime, but on the possibility that authorities might uncover
evidence linking the searched individual to any of a number of
possible crimes. The Second Circuit’s assumption that the Fourth
Amendment imposes fewer restrictions on State privacy intrusions
where such general searches occur, unmotivated by individual
suspicion as to certain individuals or certain crimes, cannot be
squared with the longstanding Supreme Court authority regarding the
history and purpose of the Fourth Amendment. As the Supreme
Court has declared, “[iJt is surely anomalous to say that the
individual and his private property are fully protected by the Fourth
Amendment only when the individual is suspected of criminal
behavior.” Camara v. Municipal Court, 387 U.S. 523, 530 (1967). °

This aspect of the Second Circuit’s decision is unfortunately
subject to much broader application. The centra] reasoning of the
appellate court — that a search regime passes the “special needs” test
where it carries out blanket DNA sampling, not directed at any
particular crime — will ensure that broader sampling regimes are
upheld as constitutional. The logic of the Second Circuit’s opinion
supports expansion of the DNA databank to arrestees, regardless of
whether the arrest results in a conviction. And there is no logical
distinction, given the Second Circuit’s reasoning, between the DNA
databank challenged in this case and a DNA databank directed at all
citizens. Like the DNA databank in this case, a databank directed at
all citizens will be used to identify individuals in the event that such
identificatory information can be used in a criminal prosecution.
And like the DNA databank in this case, the government’s interest in

~

® Similarly, the Second Circuit’s suggestion that the Fourth Amendment has less
force when the evidence relates to identification rather than direct evidence of
“criminal wrongdoing,” App. at 26a-27a, is in direct conflict with longstanding
Supreme Court authority. The Supreme Court has often found a search to violate
the Fourth Amendment despite the fact that the evidence uncovered by the search
did not necessarily establish that a crime had been committed. £.¢., Kyllo v.
United States, 533 U.S. 27 (2001): Flippo v. West Virginia, 528 U.S. 11 (1999),

maintaining a comprehensive DNA databank will trump the public’s
interest in remaining free of what the Second Circuit viewed as the
_.. minimal intrusiveness of the blood draws challenged here. Given the
recurring nature of this important problem, certiorari is appropriate
so that the Court can more fully consider the ramifications of the
Second Circuit’s broad decision.

Hil. THERE IS A SPLIT WITHIN CIRCUITS REGARDING
HOW TO ANALYZE DNA DATABANK LAWS

The constitutionality of DNA databanks for individuals
convicted of specified crimes has been actively litigated within the
Courts of Appeals. While every appellate court to date has held that
such databanks are constitutional, there is a serious split between the
circuits as to how to analyze the issue. The Second, Seventh, and
Tenth Circuits have correctly chosen to apply the “special needs”
analysis to the suspicionless prison searches and seizures similar to
those challenged herein. Sev App. 24a; Green v. Berge, 354 F.3d 675,
677-78 (7th Cir. 2004); United States v. Kimler, 335 F.3d 1132, 1146
(10th Cir.), cert. denied 540 U.S. 1083 (2003). Also, at rehearing en
banc, a majority of the judges in the Ninth Circuit applied the
“special needs” analysis in evaluating a DNA databank statute. See
United States v. Kincade, 379 F.3d 813 (9th Cir. 2004), cert. denied,
544 U.S. 924 (2005) (Gould, J., concurring and Reinhardt, J.,
dissenting).

An alternate test that has been use by six appellate courts
is a general balancing test pursuant to this Court’s decision in United
States v. Knights, 534 U.S. 112 (2001). See United States v. Kraklio,
No. 06-1369, F.3d __, 2006 WL 1736389 (8" Cir. June 27, 2006);
Johnson v. Quander, 440 F.3d 489, 496 (D.C. Cir. 2006), petition for
certiorari filed; United States v. Sczubleck, 402 F.3d 175, 184 (3d.
Cir. 2005), cert. denied,126 S. Ct. 2930 (2006); Padgett v. Donald,
401 F.3d 1273, 1280 (11th Cir.), cert. denied sub. nom 1268S. Ct. 352
(2005); Kincade, 379 F.3d 813, 832 (9th Cir. 2004) (plurality op.);
Groceman v. United States Dept. of Justice, 354 F.3d 411, 413 (Sth
Cir. 2004). The Sixth Circuit has upheld a DNA databank under both
analytical frameworks, see United States v. Conley, No. 05-5900, __
F.3d __, 2006 WL 1867092, *4—6 (6th Cir. July 7, 2006), and the

Fourth Circuit, pre-Ferguson, has applied a balancing test to uphold
a DNA databank, see Jones v. Murray, 962 F.2d 302 (4" Cir. 1992),
cert. denied 506 U.S. 977 (1992).

There is thus a clear split of authority between almost every
Circuit regarding the proper analysis to use in evaluating the
constitutionality of DNA databanks. The split in analyses is an
important issue to resolve—in spite of the lack of conflict in the
decisions—because, as the Second Circuit recognized below: “the
test applied continues to matter, especially since the reasons for
adopting a particular test will inevitably have consequences in other
search contexts.” See App. 24a. Furthermore, a correct application
of the special needs test should result in the DNA databank statutes
being struck down because the suspicionless searches can only be
seen as serving a “law enforcement need.” See Part | supra.’

This Court recently held that suspicionless searches of a
parolee do not violate the Fourth Amendment, applying the “totality
of the circumstances” balancing test. See Samson v. California, 126
S. Ct. 2193 (2006). The Court’s decision in Samson is not
dispositive of whether the “special needs” test applies here, however,
because a blood and DNA search—requiring forced bodily intrusion
for biological matter that will be held and analyzed indefinitely—is
quite different from the external and temporally limited searches at
issue in Samson. In order to comport with the Fourth Amendment’s
guiding principle of reasonableness, the only test used to evaluate the
constitutionality of a statute that allows for forced bodily intrusion
to obtain inherently private biological matter that can be searched ad
infinitum is the more stringent special needs analysis. Ferguson, 532
U.S. at 83 n.21 (stating that “special needs” test is proper framework
for evaluating suspicionless searches involving bodily intrusion).

Moreover, Samson is consistent with this Court’s

‘For instance, the District Court of Massachusetts has approved a probationer’s
request for a preliminary injunction against DNA extraction because “the lack of
any special need for the state to obtain a DNA sample precluded the extraction of
such [a] sample in the absence of any individualized suspicion that an offense had
been committed.” United States v. Weikert, 421 F. Supp. 2d 259, 264-65(D.
Mass. 2006) (emphasis added). The court found that the government's purpose
was “to determine whether the searched individual has committed a crime,” a
purpose that 1s not beyond an ordinary law enforcement purpose and thus does
not qualify as a“special need.” /d. at 265 (citing Edmond, 531 U.S. at 37).

longstanding authority that prisoners have no expectation of privacy
in their prison cells (in contrast to the privacy expectations
resounding in their bodily integrity). See Hudson v. Palmer, 468 U.S
517, 526 (1984); Bell v. Wolfish, 441 U.S. 520, 545 (1979) (prisoners
“do not forfeit all constitutional protections by reason of their
conviction and confinement in prison”). It does not eliminate the
need for the State to demonstrate a “special need” when it seeks to
justify suspicionless mass intrusions of citizens’ bodily integrity.
Therefore, it is respectfully suggested that a writ of certiorari should
issue to resolve the conflict within the federal courts of appeals
regarding how to analyze the constitutionality of suspicionless DNA
databanks.

CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari

to the United States Court of Appeals for the Second Circuit should
be granted.

Respectfully submitted,

ELIZABETH L. Koos*
JOAN MAGOOLAGHAN
ALEXANDER A. REINERT
Koos & MAGOOLAGHAN
19 Fulton Street

Suite 408

New York, NY 10038
(212) 406-3095

Counsel for Petitioners

*Counsel of Record

APPENDIX

TABLE OF APPENDICES

APPENDIX A
Decision of the United States Court
of Appeals for the Second Circuit,
dated November 28, 2005

APPENDIX B
Decision denying petition for rehearing
and rehearing en banc, dated April
26, 2006

APPENDIX C
Decision of the United States District
Court for the Southern District of
New York, dated June 24, 2004

APPENDIX A

United States Court of Appeals,
Second Circuit.

Jason B. NICHOLAS, John Lewis, Philip Rabenbauer, Frank
Solimine, Robert Pacini, Chester Flanders, Bennie Bates, Lymond
Stephenson, Luis Mejia, Cecil Barrow, Dominic Deruggiero,
Plaintiffs-Appellants,

Alvaro Sanchez, Plaintiff,

Glenn S. GOORD, New York State Department of Correctional
Services; Katherine Lapp, New York State Division of Criminal
Justice Services; Medilabs, Inc.; Jessica Walsh,
Defendants-Appellees.

No. 04-3887-PR.

Argued April 4, 2005.
Decided Nov. 28, 2005.

Before: WALKER, Chief Judge, LEVAL, Circuit Judge, and
LYNCH, District Judge. -

[Page numbering from 430 F.3d 652 in bold]
OPINION BY JOHN M. WALKER, JR., Chief Judge.

[655] Jason B. Nicholas, John Lewis, Philip Rabenbauer,
Frank Solimine, Robert Pacini, Chester Flanders, Bennie Bates,
Lymond Stephens », Luis Mejia, Cecil Barrow, and Dominic
DeRuggiero (collec.. vely, “plaintiffs” ) appeal from a judgment of the
United States District Court for the Southern District of New York
(Kevin T. Duffy, Judge ) granting defendants’ motion to dismiss.
Nicholas v. Goord, No. 01 Civ. 7891, 2004 WL 1432533 (S.D.N_Y.
June 24, 2004). Plaintiffs, who filed suit under 42 U.S.C. § 1983,
challenge the constitutionality under the Fourth Amendment of New
York’s DNA statute, which requires certain classes of convicted
felons to provide DNA samples to be maintained in a state database.

We affirm the district court’s dismissal of plaintiffs’
complaint, but rely on different reasoning. We hold that the
constitutionality of New York’s DNA statute is properly analyzed
under the Fourth Amendment’s “special needs” test; under that test,
we find the statute constitutional.

BACKGROUND
I. Facts

Plaintiffs are felons convicted in New York who, at the time
they brought this lawsuit, were incarcerated. They challenge the
1999 version of New York’s DNA statute, which requires certain
classes of convicted felons to provide DNA samples to be maintained
in a state database. N.Y. Exec. Law § 995 et seq. (McKinney 1999).
[FN1] New York’s law is similar to the numerous DNA-indexing
statutes that have been established at both the state and federal
levels; it (1) mandates the extraction of DNA samples from certain
classes of convicted felons, id. § 995-c(3); [FN2] (2) provides for
DNA information obtained from those samples to be maintained in
an index, or database, id.; (3) specifies that DNA samples will be
analyzed only for markers “having value for law enforcement
identification purposes,” [656] id. § 995-c(5); [FN3] (4) allows for
release of DNA records only in limited circumstances, id. § 995-c(6);
[FN4] (5) penalizes the unauthorized disclosure or use of DNA
records, id. § 995-f; and (6) requires that an individual’s DNA
records be expunged if his conviction is reversed or if he is pardoned,
id. § 995-c(9). All nine plaintiffs have provided blood samples for
purposes of the DNA index. [FN5]

FN1. The statute, originally enacted in 1994, at first
applied only to individuals convicted after January
1, 1996. 1994 N.Y. Laws, ch. 737, §§ 1, 3. In 1999,
the statute was amended to apply to persons already
convicted of certain offenses who were still serving
a sentence. 1999 N.Y. Laws, ch. 560, § 9. Plaintiffs,
all of whom were convicted before 1996 and were
serving their sentences in 1999, became subject to
the statute at that time. References to the statute

throughout this opinion are entirely to the 1999
version. The parties agree that subsequent
amendments-are not at issue.

FN2. The 1999 statute applied only to certain
felonies (e.g., assault, homicide, rape, incest, escape,
attempted murder, kidnaping, arson, burglary). See
N.Y. Exec. Law § 995(7).

FN3. DNA databases like New York’s utilize “junk
DNA,” which does not (as far as we know) contain
genetic information. See United States v. Kincade,
379 F.3d 813, 818 (9th Cir. 2004) (en banc), cert.
denied, 544 U.S. 924, 125 S.Ct. 1638, 161 L.Ed.2d
483 (2005).

FN4. Records may only be released (1) to
law-enforcement agencies for identification of
specified human remains or for identification
purposes in criminal investigations, (2) to a
defendant or his legal representative, or (3) after
nersonally identifiable information has been
removed, to authorized entities for the purpose of
maintaining a population-statistics database. N.Y.
Exec. Law § 995-c(6).

FN5. Although the statute originally required that
DNA be extracted by blood sample, see 1994 N.Y.
Laws, ch. 737, § 3, the statute was amended in 1999
to require only “a sample appropriate for DNA
testing,” 1999 N.Y. Laws, ch. 560, § 3. The state
maintains that its “current normal practice ... is to
{obtain DNA by taking] [bJuccal cheek swab[s],”
but conceded at oral argument that plaintiffs have all
had their blood drawn. We therefore confine our
analysis to the extraction of plaintiffs’ DNA via
blood sample. In any event, even less intrusive
measures of obtaining physiological data, such as

cheek swabs, can constitute a search, since “[t]he
ensuing chemical analysis of the sample” may also
effect an “invasion of the [searchee’s] privacy
interests.” Skinner v. Ry. Labor Executives’ Ass'n,
489 U.S. 602, 616, 109 S. Ct. 1402, 103 L. Ed. 2d
639 (1989).

Suing under 42 U.S.C. § 1983, plaintiffs claim that New
York’s statute violates the Fourth Amendment, which prohibits
unreasonable searches and seizures. See U.S. Const. amend. IV.
They seek to have their DNA records expunged from New York’s
database as well as money damages. [FN6] In addition to
defendants-appellees Goord and Lapp (“State defendants”), plaintiffs
named as defendants Medilabs, Inc., and its employee Jessica Walsh,
who conducted DNA sampling for the state. [FN7]

FN6. At the time of filing, two plaintiffs had not yet
had their blood drawn; they initially sought to bar
the state from doing so. At oral argument, however,
the parties informed the court that all nine plaintiffs
have had their blood drawn for DNA-indexing
purposes. We therefore understand that all plaintiffs
now seek the same remedies.

FN7. Private parties are subject to the Fourth
Amendment if they act as agents of the state. See
Skinner, 489 U.S. at 614, 109 S. Ct. 1402; United
States v. Bennett, 709 F.2d 803, 805 (2d Cir. 1983).
Under 42 U.S.C. § 1983, private parties acting under
color of state law can be held liable for violations of
federal constitutional rights. See Adickes v. S.H.
Kress & Co., 398 U.S. 144, 152, 90S. Ct. 1598, 26
L. Ed.2d 142 (1970): Fries v. Barnes, 618 F.2d 988,
990-91 (2d Cir. 1980).

Il. Proceedings Below

On February 6, 2003, Magistrate Judge Gabriel W.

Gorenstein issued a report recommending that the case be dismissed.
Nicholas v. Goord, No. 01 Civ. 7891, 2003 WL 256774 (S.D.NLY.
Feb. 6, 2003) (“Report-Recommendation “). He first concluded that
DNA sampling under the statute constituted a “search and seizure
implicating the Fourth Amendment.” /d. at *3. After extensively
analyzing the relevant case law, the magistrate judge found that New
York’s DNA statute was subject to the “special needs” test first
articulated by Justice Blackmun in his concurrence in New Jersey v.
T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)
(Blackmun, J., concurring), and applied by this court in analyzing
Connecticut’s [657] DNA statute, see Roe v. Marcotte, 193 F.3d 72,
79-82 (2d Cir. 1999). In Magistrate Judge Gorenstcin’s view, recent
Supreme Court cases “require[d| that DNA indexing statutes ... be
analyzed solely in accordance with the ‘special needs’ doctrine.”
Report-Recommendation, 2003 WL 256774, at *11.

Following that doctrine, the magistrate judge conducted a
two-part inquiry. He first asked whether New York’s law served a
“ “special need, beyond the normal need for law enforcement.’ “ Jd.
In doing so, however, he declined to rely on the special need that we
had identified in Marcotte, in part because that case preceded two
significant intervening Supreme Court decisions concerning the
special-needs test, see id. at *14, and in part because he was
unconvinced that New York’s DNA statute was meant to deter
recidivism, the special need relied upon in Marcotte, see id. at *12.
Ultimately, the magistrate judge concluded that the primary purpose
of New York’s DNA statute was “to maintain information available
to solve future crimes,” and deemed that purpose a special need. Jd.
at *13. The magistrate judge then applied a balancing test and found
that the interests of the state in maintaining a database to aid in crime
investigation outweighed the minimal intrusion on plaintiffs’ privacy
interests. The magistrate judge emphasized plaintiffs’ greatly
reduced expectation of privacy as prisoners, id. at *16-*17, and the
“blanket approach” of the statute, which reduced the possibility of
arbitrary conduct by the state, id. at *18.

The district court reached the same conclusion by a different
route. The district court first expressed skepticism as to whether the

Fourth Amendment even applied, noting that it was “not necessarily
convinced that the Magistrate Judge was correct to so quickly
dismiss the question,” but ultimately decided, in the absence of any
argument from the state, to assume that the Fourth Amendment did
apply. Nicholas, 2004 WL 1432533, at *2. Rather than conducting
the special-needs inquiry, however, the district court found that under
the Supreme Court’s decision in United States v. Knights, 534 U.S.
_— 142, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001), a general balancing

test was more appropriate. See Nicholas, 2004 WL 1432533, at *3.
The district court therefore explicitly declined to follow Marcotte or
the magistrate_judge’s recommendation, id. at *3 n. 7, and even
suggested that the statute might not survive under the special-needs
test, id. at *4 (arguing that “collecting DNA is part and parcel” of the
state’s general interest in law enforcement, which would not qualify
as a special need).

Instead of engaging in a special-needs inquiry, therefore, the
district court proceeded directly to consider the statute under the
traditional Fourth Amendment balancing test. After concluding that,
in light of the totality of the circumstances, the state’s significant
interest in “having information readily available to aid criminal

investigations” outweighed plaintiffs’ minimal interest in not having
to submit their DNA to indexing, the district court dismissed the
complaint. /d. at *5-*6.

This appeal followed.
DISCUSSION

We review de novo a district court’s grant of a motion to
dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). [FN8] See, e.g, W. Mohegan Tribe & Nation
v. Orange County,|658] 395 F.3d 18, 20 (2d Cir. 2004) (per curtam).
We accept as true the allegations in the complaint and draw all
reasonable inferences in plaintiffs’ favor. /d.

FN8. Medilabs and Walsh submitted a motion for
judgment on the pleadings, pursuant to Federal Rule

of Civil Procedure 12(c), but such a motion is
evaluated under the same standard as a Rule
12(b)(6) motion to dismiss. See Sheppard v.
Beerman, 18 F.3d 147, 150 (2d Cir. 1994).

I. The Applicability of the Fourth Amendment

As a preliminary matter, we reject the district court’s sua
sponte suggestion that the Fourth Amendment might not apply to
New York’s DNA statute because plaintiffs may not have a
reasonable expectation of privacy in their DNA. See Nicholas, 2004
WL 1432533, at *2; see generally Oliver v. United States, 466 U.S.
170, 177, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984) (“The
Amendment [protects] only those expectation{s] that society is
prepared to recognize as reasonable.” (internal quotation marks
omitted)). The state did not dispute the applicability of the Fourth
Amendment below, nor does it on appeal. Our sister circuits have
consistently found, as we presumed in Marcotte, 193 F.3d at 77, that
prisoner DNA extraction is subject to the Fourth Amendment. See
United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir. 2005);
Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir. 2005); United
States v. Kincade, 379 F.3d 813, 821 n. 15 (9th Cir. 2004) (en banc),
cert. denied, 544 U.S. 924, 125 S. Ct. 1638, 161 L. Ed. 2d 483
(2005); Green v. Berge, 354 F.3d 675, 676 (7th Cir. 2004);
Groceman v. DOJ, 354 F.3d 411, 413 (Sth Cir. 2004); Boling v.
Romer, 101 F.3d 1336, 1340 (10th Cir. 1997); Jones v. Murray, 962
F.2d 302, 306 (4th Cir. 1992).

Moreover, while we agree with the district court that
fingerprinting and DNA indexing serve similar purposes, see
Nicholas, 2004 WL 1432533, at *2 n. 4; see also infra Part U1.B, and
while the Supreme Court has suggested that the former may not fall
within the Fourth Amendment’s scope, see United States v. Dionisio,
410 US. 1, 14-15, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); but cf. id.
at 39, 93 S. Ct. 764 (Marshall, J., dissenting), the Court has also
recognized a distinction between non-intrusive means of obtaining
physical evidence (such as fingerprinting) and more invasive
measures (such as drawing blood), id. at 14-15, 93 S.Ct. 764. The

EE ———————aa—eeeew~we LN OL EEE EE

Jatter are, under Skinner, deemed Fourth Amendment searches. See
489 U.S. at 616, 109 S. Ct. 1402. The distinction between the
physical intrusion required to take a fingerprint and the intrusion
required to draw a blood sample is thus constitutionally significant.

Finally, to the extent that the district court relied on Second
Circuit cases holding that prisoners have a reduced expectation of
privacy, see, ¢.g., Willis v. Artuz, 30) F.3d 65, 69 (2d Cir. 2002)
(prisoners lack expectation of privacy in prison cell), we note that
prisoners retain a right to bodily privacy, even if that right is limited
by institutional and security concerns, see Marcotte, 193 F.3d at 78;
Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992). Drawing blood
from inmates thus effects a constitutionally cognizable intrusion on
prisoners’ expectation of bodily privacy, though that expectation may
be diminished. Accordingly, we find that the extraction and analysis
of plaintiffs’ blood for DNA-indexing purposes constituted a search
implicating the Fourth Amendment.

From this point, our analysis proceeds in two parts: We first
decide which Fourth Amendment test to apply to New York’s DNA
statute, and then we analyze the statute’s constitutionality under that
test.

Il. Special-Needs Test
A. Special-Needs or General Balancing Test?

To date, both state and federal DNA-indexing statutes have
withstood Fourth [659] Amendment challenges. [FN9] See
Sczubelek, 402 ¥.3d at 184; Kincade, 379 F.3d at 830-31 & n. 25.
Courts remain divided, however, as to the appropriate test to apply.
The Second, Seventh, and Tenth Circuits have applied the
special-needs test. See Marcotte, 193 F.3d at 78-79; Green, 354 F.3d
at 677-78: United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.
2003). [FN10} The Third, Fourth, Fifth. Ninth, and Eleventh Circuits
have applied a general balancing test, see Sczubelek, 402 F.3d at 184;
Jones, 962 F.2d at 307; Groceman, 354 F.3d at 413; Kincade, 379
F.3d at 832; Padgett, 401 F.3d at 1280, although the Third and Ninth

ee th nmi in et et Rar es Sl A SS An L es a _— = : Be

Circuit decisions prompted impassioned dissents, see Sczubelek, 402
F.3d at 189-204 (McKee, J., dissenting); Kincade, 379 F.3d at
842-71 (Reinhardt, J., dissenting); id. at 871-75 (Kozinski, J.,
dissenting); id. at 875- 76 (Hawkins, J., dissenting). [FN11]

FN9. Courts have also upheld DNA-indexing
statutes in the face of other constitutional
chalienges. See, e.g., Doe v. Moore, 410 F.3d 1337
(lith Cir. 2005) (rejecting due-process,
separation-of-powers, and equal-protection
challenges to DNA-indexing provisions of Florida’s
sex-offender statute); Sczubelek, 402 F.3d at 187-89
(rejecting separation-of-powers challenge to federal
statute); Padgett, 401 F.3d at 1280-81 (rejecting
substantive due-process challenge to Georgia’s
DNA statute). ;

FN10. Prior to Kimler, the Tenth Circuit applied a
general balancing test to Colorado’s DNA statute.
See Boling, 101 F.3d at 1340. Kimler, however,
applied the special-needs test without commenting
on Boling. See 335 F.3d at 1146.

FN11. Indeed, it is not so clear that proponents of
the general balancing test prevailed in the Ninth
Circuit. Kincade was decided by eleven judges
sitting en banc. Five judges voted to uphold the
federal DNA statute under a general balancing test,
and a sixth judge voted to uphold the statute under
the special-needs exception. The five dissenters
would have applied the special-needs test to strike
down the statute, See Kincade, 379 F.3d at 842 n. |
(Reinhardt, J., dissenting). Thus, the special-needs
test received six yotes in Kincade, while the general
balancing test only received five. See also Moreno
v. Baca, 400 F.3d 1152, 1157 n. 2 (9th Cir. 2005)
(“{In Kincade |, we were unable to resolve the
proper test to be applied ....”).

In Marcotte, we applied the special-needs test to the
DNA-indexing requirement under Connecticut’s sex-offender statute,
which is similar to New York’s statute. [FN12] See Marcotte, 193
F.3d at 75 (describing Connecticut statute). Plaintiffs, as might be
expected, argue that Marcotte should be followed and the more
stringent special-needs test applied. Our analysis of New York’s
statute must, however, take into account not only Marcotte, but also
several significant intervening Supreme Court cases. Particularly
relevant are 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),
Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L.
Ed. 2d 205 (2001), and Jilinois v. Lidster, 540 U.S. 419, 124 S. Ct.
885, 157 L. Ed. 2d 843 (2004), which clarify the circumstances in
which the special-needs exception applies and how courts should
apply it. Of course, we are bound by our own precedent “unless and
until its rationale is overruled, implicitly or expressly, by the
Supreme Court or this court en banc.” BankBoston, N.A. v.
Sokolowski, 205 F.3d 532, 534-35 (2d Cir. 2000) (per curiam). In
light of these subsequent [660] Supreme Court decisions, however,
we are free to revisit Marcotte’s reasoning, and, in light of the
judicial views reflected in the circuit split, we think it prudent to do
So.

FN12. Specifically, Connecticut’s statute, Conn.
Gen.Stat. § 54- 102g, applies to persons convicted
of certain offenses after October 1, 1994 and
sentenced to incarceration, as well as_ those
convicted before October 1, 1994 of certain
offenses, but incarcerated at that time. Marcotte,
193 F.3d at 75. Connecticut’s statute requires that
DNA be obtained through blood sample, specifies
that DNA be tested for identification purposes, and
provides that the results of DNA testing be kept
confidential. /d.

B. The Evolution of the Special-Needs Exception

The Fourth Amendment prohibits unreasonable searches and

seizures. In the criminal-law context, a warrant and probable cause
are usually required. See Mincey v. Arizona, 437 U.S. 385, 390, 98
S. Ct. 2408, 57 L. Ed. 2d 290 (1978). Warrantless searches must
generally fit within “a few specifically established and
well-delineated exceptions,” id. (internal quotation marks omitted),
such as the warrantless search pursuant to a lawful arrest, see Chime!
v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 23 L. Ed. 2d 685
(1969). And warrantless searches must still generally be based upon
probable cause, see T.L.O., 469 U.S. at 340, 105 S. Ct. 733, though
the Court has recognized that probable cause, which is “peculiarly
related to criminal investigations,” Bd. of Educ. of Indep. Sch. Dist.
No. 92 v. Earls, 536 U.S. 822, 828, 122 S. Ct. 2559, 153 L. Ed. 2d
735 (2002) (internal quotation marks omitted), is not an “irreducible
requirement of a valid search,” 7.L.0., 469 U.S. at 340, 105 S. Ct.
733. However, and crucially for our purposes, where neither warrant
nor probable cause is required, searches must usually be based upon
some quantum of individualized suspicion; suspicionless searches
are constitutional “only [in] limited circumstances.” Edmond, 531
U.S. at 37, 121 S. Ct. 447.

The special-needs exception, which developed against this
backdrop of Fourth Amendment requirements, was first enunciated
by Justice Blackmun in his 7:L.O. concurrence, in which he clarified
that exceptions to the usual warrant and probable-cause requirements
were appropriate only where “special needs, beyond the normal need
for law enforcement, make the warrant and _ probable-cause
requirement impracticable.” 7.L.0., 469 U.S. at 351, 105 S. Ct. 733
(Blackmun, J., concurring). As originally formulated, the
special-needs exception was thus aimed at evaluating the
constitutionality of warrantless searches, but did not address the
appropriate standard for evaluating suspicionless searches. See also
Ferguson, 532 U.S. at 74 n. 7, 121 S. Ct. 1281. Indeed, 7-L.O. itself
involved a warrantless search based on individualized suspicion. See
T.L.O., 469 U.S. at 342 n. 8, 105 S. Ct. 733 (“Because the search ...
was based upon an individualized suspicion ... we need not consider
the circumstances that might justify school authorities in conducting
searches unsupported by individualized suspicion.”).

Warrantless searches that serve a special need and are based
on individualized suspicion have been upheld by the Court several
times. See, e.g., O'Connor v. Ortega, 480 U.S. 709, 725, 107 S. Ct.
1492, 94 L. Ed. 2d 714 (1987) (warrantless search of employee
workspace based on reasonable suspicion of employee misconduct).
As the government implicitly concedes, however, the New York
statute establishes a suspicionless-search regime, not just a
warrantless one. Cf. United States v. Lifshitz, 369 F.3d 173, 188 (2d
Cir. 2004) (“In Marcotte, we explicitly distinguished searches based
solely on an individual’s status as a convicted sex offender from
searches based upon at least some level of individualized
suspicion.”). Relevant to this appeal, therefore, are those cases
concerning suspicionless searches.

Such searches, which have historically been treated as a
“closely guarded category,” Chandler v. Miller, 520 U.S. 305, 309,
117 S. Ct. 1295, 137 L. Ed. 2d 513 (1997), have been upheld only in
limited circumstances, [661] including searches conducted at the
border, [FN13] in prisons, [FN14] and at airports and entrances to
government buildings; [FN15] administrative or regulatory

searches, particularly of closely regulated businesses; [FN16]
student and employee drug tests; [FN17] information-seeking
checkpoints; [FNI8] and searches of probationers’ residences.
[FN19] See also Kincade, 379 F.3d at 822-23 (describing categories
of suspicionless searches).

FN13. See United States v. Martinez-Fuerte, 428
U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976)
(finding constitutional reasonably located permanent
checkpoints for brief stops and questioning, for
purpose of policing the border).

FN14. See Bell v. Wolfish, 441 U.S. 520, 99 S. Ct.
1861, 60 L. Ed. 2d 447 (1979) (upholding, on
penological and _ institutional-safety grounds,
suspicionless visual body-cavity searches of inmates
following contact visits).

FN15. See Chandler, 520 U.S. at 323, 117 S. Ct.
1295 (“[W]here the risk to public safety is
substantial and real, blanket suspicionless searches
calibrated ts the risk may rank as ‘reasonable’--for
example, searches now routine at airports and at
entrances to courts and other official buildings.”).

FN16. See New York v. Burger, 482 U.S. 691, 107
S. Ct. 2636, 96 L. Ed. 2d 601 (1987) (upholding
administrative inspection of automobile junkyards);
Camara v. Mun. Ct. of S.F., 387 U.S. 523, 87S. Ct.
1727, 18 L. Ed. 2d 930 (1967) (upholding municipal
area inspections to monitor compliance with
building safety codes).

FN17. See Earls, 536 U.S. 822, 122 S. Ct. 2559
(upholding random, suspicionless drug testing of
students involved in extracurricular activities);
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115
S. Ct. 2386, 132 L. Ed. 2d 564 (1995) (same); Nat’/
Treasury Employees Union v. Von Raab, 489 U.S.
656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989)
(upholding suspicionless drug testing of certain
customs employees); Skinner, 489 U.S. 602, 109 S.
Ct. 1402 (upholding testing of railroad employees
involved in train accidents).

FN18. See Lidster, 540 'J.S. 419, 124 S. Ct. 885
(upholding brief stops of motorists at checkpoint
where police sought information about recent
hit-and-run accident).

FN19. See Griffin v. Wisconsin, 483 U.S. 868, 107
S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (upholding
searches of probationer’s home because of state’s
interest in supervising probationers).

What unifies these cases, despite their varied contexts, ts that

in each instance, the Court found that the suspicionless-search regime
at issue served some special need distinct from normal
law-enforcement needs. In Martinez-Fuerte, for example, the Court
“emphasized the difficulty of eff <.vely containing illegal
immigration at the border itself.” Edmond, 53} U.S. at 38, 121 S. Ct.
447 (construing Martinez-Fuerte). In Bell v. Wolfish, the Court’s
concern was the “significant and legitimate security interests of the
[prison] institutions.” 441 U.S. at 559-60, 99 S. Ct. 1861. In Von
Raab, Skinner, Vernonia, and Earls--all involving drug tests--the
Court found that the purpose of the regime “was one divorced from
the State’s general interest in law enforcement.” Ferguson, 532 U.S.
at 79, 121 S. Ct. 1281 (construing those cases); see also id. at 80 n.
16, 121 S. Ct. 1281 (noting that in each of the four cases, results of
the drug tests could not be used in criminal prosecution).

Thus, although the special-needs exception was originally
formulated in the context of warrantless searches, the evolution of
the Court’s Fourth Amendment jurisprudence suggests that the
doctrine has increasingly become the test employed by the Court in
suspicionless search cases. See also Chandler, 520 U.S. at 313, 117
S. Ct. 1295 (“[P]articularized exceptions to the main rule [requiring
individualized suspicion] are sometimes warranted based on special
needs, beyond the normal need for law enforcement.” (internal
quotation marks omitted)). Indeed, in two recent [662] cases, the
relationship between the special-needs exception and
suspicionless-search regimes has become explicit.

In 2001, the court decided Edmond, which concerned an
Indianapolis checkpoint program “whose primary purpose [was] the
discovery and interdiction of illegal narcotics.” 531 U.S. at 34, 121
S. Ct. 447. After noting that it had “never approved a checkpoint
program whose primary purpose was to detect evidence of ordinary
criminal wrongdoing,” id. at 41, 121 &. Ct. 447, the Court held the
program unconstitutional, emphasizing that it had recognized “only
limited exceptions to the general rule that a seizure must be
accompanied by some measure of individualized suspicion,” id. Of
particular importance was Edmond’ s characterization of the Court’s
own special-needs jurisprudence: “[W Je have upheld certain regimes

14a

of suspicionless searches where the program was designed to serve
special needs, beyond the normal need for law enforcement,” as well
as limited searches for “certain administrative purposes.” /d. at 37,
121 S. Ct. 447 (internal quotation marks omitted) (emphasis added).
And Chief Justice Rehnquist in dissent seemed to assume that
suspicionless searches must satisfy the special-needs inquiry. See id.
at 54, 121 S. Ct. 447 (Rehnquist, C.J., dissenting) (“The ‘special
needs’ doctrine, which has been used to uphold suspicionless
searches performed for reasons unrelated to law enforcement, is an
exception to the general rule that a search must be based on
individualized suspicion of wrongdoing.”).

The following year the Court decided Ferguson, in which the
petitioners challenged a hospital program that tested their urine for
cocaine use. See $32 U.S. at 71-73, 121 S. Ct. 1281. The Court
found that the “immediate objective cf the searches was to generate
evidence for law enforcement purposes,” id. at 83, 121 S. Ct. 1281],
and deemed the program unconstitutional under the special-needs
test, id. at 85, 121 S. Ct. 1281. In so holding, the Court again
indicated that the special-needs test applied to searches conducted in
“the absence of a warrant or individualized suspicion.” 532 US. at
79, 121 S. Ct. 1281.

Edmond and Ferguson are notable for two reasons. First,
they indicate that searches conducted in the absence of individualized
suspicion are subject to the special-needs test. While the
special-needs exception was originally developed in relation to the
Fourth Amendment’s warrant requirement, cases like Edmond and
Ferguson have increased the doctrine’s importance in a subcategory
of warrantless searches--suspicionless searches. See N.G. v.
Connecticut, 382 F.3d 225, 236-37 (2d Cir. 2004) (noting that when
it comes to “searches undertaken pursuant to a general scheme
without individualized suspicion,” the Supreme Court has applied the
special-needs test and has held that “a primary purpose to advance
the genera! interest in crime control will not suffice” (internal -
quotation marks and citations omitted)). In this regard, we disagree
with Sur colleagues on the Ninth Circuit, who observed in Kincade
that “[t}he Court has long understood special needs analysis to be

triggered not by a complete absence of suspicion, but by a departure
from the Fourth Amendment’s warrant-and-probable cause
requirements.” Kincade, 379 F.3d at 829. Asexplained above, while
T.L.O. and other early special-needs cases employed the exception in
the context of warrantless searches, the Court’s recent Fourth
Amendment jurisprudence has increasingly associated the
special-needs test with suspicionless-search regimes.

Second, Edmond and Ferguson clarify what may qualify as
a special need. Edmond asserts that a program serving a [663]
“general intefest in crime control” will not suffice. 531 U.S. at 44,
121 S. Ct. 447. Edmond rejected the state’s argument that the
checkpoint program served a non-law-enforcement need because it
was broadly aimed at society’s drug problem: “If we were to rest the
case at this high level of generality, there would be little check on the
ability of the authorities to construct roadblocks for almost any
conceivable law enforcement purpose.” /d. at 42, 121 S-Ct. 447.
Ferguson reiterated Edmond’s holding, finding that a search whose
“immediate objective ... was to generate evidence for law
enforcement purposes” was unconstitutional, even if its “ultimate
goal” was to stop substance abuse by pregnant women. 532 U.S. at
82-83, 121 S. Ct. 1281. We thus read Edmond and Ferguson to call
for the application of the special-needs test in cases involving
suspicionless searches, and to require that such searches serve as
their immediate purpose an objective distinct from the ordinary
evidence gathering associated with crime investigation. See also
Chandler, 520 U.S. at 314, 117 S. Ct. 1295 (defining special needs
as those “other than crime detection”).

Our understanding -of the special-needs doctrine and our
reading of Edmond and Ferguson must, however, also take into
account the Court’s more recent decision in //linois v. Lidster. That
case concerned a highway checkpoint set up by police one week after
a hit-and-run accident “at about the same time of night and at about
the same place” as the accident; the checkpoint was “designed to
obtain more information about the accident from the motoring
public.” 540 U.S. at 422, 124 S. Ct. 885. In upholding the
checkpoint program, the Court noted that it “differ[ed] significantly

l6a

from that in Edmond,” emphasizing in particular that the
checkpoint’s “primary law enforcement purpose was not to
determine whether a vehicle’s occupants were committing a crime,
but to ask vehicle occupants, as members of the public, for their help
in providing information about a crime in all likelihood committed
by others.” /d. at 423, 124 S. Ct. 885. The Court distinguished
between an “information-seeking kind of stop” like the one at issue
in Lidster, and the traffic stop at issue in Edmond, which served the
state’s “general interest in crime control.” /d. at 424, 124 S. Ct. 885
(internal quotation marks omitted). And, in a-seeming effort to
expand the boundaries of the special-needs exception, the Court
expressly observed that Edmond’s prohibition on searches conducted
pursuant to a “general interest in crime control” did “not refer to
every law enforcement objective,” but rather only to normal
law-enforcement objectives. [FN20] /d. (internal quotation marks
omitted). Lidster explained that not all law-enforcement concerns
would be deemed to fall outside of the special-needs exception;
rather, some “special law enforcement concerns will sometimes
justify [checkpoint seizures] without individualized suspicion.” /d.
[FN21]

FN20. The dissenters also recognized “a valid and
important distinction between seizing a person to
determine whether she has committed a crime and
seizing a person to ask whether she has any
information.” /d. at 428, 124 S.Ct. 885 (Stevens, J.,
concurring in part and dissenting in part). They
agreed that in the latter case, Edmond did not
require that the seizure be deemed per se
unconstitutional. /d.

FN21. At oral argument, plaintiffs argued that
Lidster 1s inapplicable in this case because (1)
Lidster concerned a seizure, and (2) the Court has
treated suspicionless checkpoint seizures differently
from suspicionless searches. We reject the
argument. Plaintiffs are correct insofar as the Court,
in a footnote in Ferguson, observed that it had

17a

historically distinguished between “seizure cases in
which we have applied a balancing test,” and cases
involving searches of the body or the home, in
which it had applied the special-needs test. 532
U.S. at 83 n. 21, 121 S. Ct. 1281. But Lidster, which
postdates Ferguson, does not distinguish between
searches and seizures in discussing the special-needs
test. Rather, Lidster discusses the scope of the
special-needs exception and Edmond without
reference to any distinction between searches and
seizures. Moreover, drawing a sharp distinction
between search cases and seizure cases is unhelpful
in this instance because the extraction and analysis
of bodily fluids may constitute a seizure as well as
a search. See Skinner, 489 U.S. at 616-17 & n. 4,
109 S.Ct. 1402.

[664] C. Analysis

With Edmond, Ferguson, and Lidster in mind, we now
consider plaintiffs’ contention that the district court erred in applying
the traditional Fourth Amendment balancing test, rather than the
special-needs test. Plaintiffs urge us to follow the methodology
employed in Marcotte and to apply the more stringent special-needs
test. [FN22] Certainly, the Court’s emphasis in its recent cases on
applying the special-needs test to suspicionless searches strongly
suggests, if it does not require, that we should continue to apply the
special-needs test to DNA-indexing statutes as we did in Marcotte.

FN22. We find puzzling the Third Circuit’s
comment in Sczubelek that the special-needs inquiry
is less rigorous than the general balancing test. See
402 F.3d at 184. The special needs exception
requires the court to ask two questions. First, is the
search justified by-a special need beyond the
ordinary need for normal law enforcement? Second,
if the search does serve a special need, is the search
reasonable when the government’s special need is

weighed against the intrusion on the individual’s
privacy interest? See N.G., 382 F.3d at 230-31;
Report-Recommendation, 2003 WL 256774, at *15.
A general balancing test, on the other hand, only
requires the court to balance the government’s
interest in conducting the search against the
individual’s privacy interests. See, e.g., Kincade,
379 F.3d at 836.

Defendants, however, maintain that a general Fourth
Amendment balancing inquiry is more appropriate and argue that we
should affirm the district court’s approach. Defendants offer two
primary reasons for departing from Marcotte, which we now
consider. [FN23]

FN23. The district court also relied on Bell v.

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

447 (1979), for the proposition that a balancing test

may be used on searches of inmates conducted on

“less than probable cause.” See Nicholas, 2004 WL

1432533, at *3. We reject the argument that Wolfish

justifies application of a balancing test to prisoners,

given that the Supreme Court itself, as well as this

court, have characterized Wolfish as a special-needs

case because of its focus on institutional safety

concerns unique to prisons. See Skinner, 489 U.S.

at 619, 109 S. Ct. 1402 (listing Wolfish as a

special-needs case); N.G., 382 F.°d at 231; see also

Wolfish, 441 U.S. at 559, 99 £. Ct. 1861 (noting

“serious security dangers” of de.ention facilities).

1. United States v. Knights

Defendants first contend that the Supreme Court’s decision
in United States v. Knights, 534 U.S. 112, 122 S. Ct. $87, 151 L. Ed.
2d 497 (2001), justifies application of a traditional balancing test.
That case, on which several courts, including the district court, have
relied in dispensing with the special-needs test, see Nicholas, 2004

WL 1432533, at *3; Sczubelek, 402 F.3d at 186; Padgett, 401 F.3d
at 1279-80; Kincade, 379 F.3d at 830; Groceman, 354 F.3d at 413,
concerned a probationer whose house and residence the police
searched. The police had long suspected Knights of being involved
in various acts of vandalism. Knights, 534 U.S. at 114, 122 S. Ct.
587. The Court observed that the search, which was conducted
pursuant to a search condition of Knights’s probation order, [FN24]
was [665] “supported by reasonable suspicion.” /d. In upholding the
search, the Court explained that searches of probationers conducted
pursuant to probation conditions did not need to serve a special need,
such as a probationary purpose, to be deemed constitutional. /d. at
117-18, 122 S. Ct. 587. The Court found that, in light of the
reasonable suspicion supporting the search, and in light of Knights’s
“significantly diminished ... expectation of privacy,” id. at 120, 122
S. Ct. 587, the search satisfied the Fourth Amendment’s
reasonableness requirement.

FN24. The probation order required that Knights,
inter alia, submit his “person, property, place of
residence, vehicle, personal effects, to search at any
time, with or without a search warrant, warrant of
arrest or reasonable cause.” 534 U.S. at 114, 1225S.
Ct. 587.

Courts that have relied upon Knights as justifying the
application of a general balancing test to DNA-indexing statutes have
emphasized Knights’s status as a probationer and his knowledge of
the probation search condition, which reduced his expectation of
privacy. See, e.g., Sczubelek, 402 F.3d at 183 (noting that Court had
viewed Knights’s probation search condition as the “ ‘salient
circumstance’” (quoting Knights, 534 U.S. at 118, 122 S. Ct. 587));
Padgett, 401 F.3d at 1279 (“Key to the Court’s ruling was Knights’
status as probationer.”); Kincade, 379 F.3d at 827-28. Because the
Court emphasized Knighis’s status as a probationer subject to a
probation search condition, and because the Court applied a general
balancing inquiry, our sister circuits have assumed that those two
facts are causally related. They have thus interpreted the Court’s
willingness to employ a general balancing test, rather than the

special-needs test, as an indication that a general balancing test is
appropriate wherever the person searched has a reduced expectation
of privacy, regardless of whether the search is supported by
individualized suspicion. See, e.g., id. at 832.

We are unwilling to leap to that conclusion. The Court’s
decision to employ a traditional balancing test in Knights must be
viewed in context. In particular, we think it telling that the Court
emphasized, from the very first paragraph of its opinion, that the
search of Knights’s apartment was “supported by reasonable
suspicion.” Knights, 534 U.S. at 114, 122 S. Ct. 587; see also id. at
121-22, 122 S. Ct. 587 (noting repeatedly that the search was
supported by reasonable suspicion). And this court has previously
construed Knights as limited to situations involving some quantum
of individualized suspicion. See Lifshitz, 369 F.3d at 180-81 (“In
Knights ... [the Court] decided only that the particular search at issue
met the requirements of the Fourth Amendment, because it was based
on reasonable suspicion.”). Indeed, the Court expressly noted that it
was “not address[ing] the constitutionality of a suspicionless search
because the search in this case was supported by reasonable
suspicion.” Knights, 534 U.S. at 120 n. 6, 122 S. Ct. 587. In light of
the Court’s emphasis on the existence of reasonable suspicion in
Knights, its decision to employ a general balancing test in that case
was arguably due as much to the existence of individualized
Suspicion as it was to Knights’s reduced expectation of privacy under
the search condition. As Judge Reinhardt explained in his Kincade
dissent, in Knights,

The Court distinguished the “special needs” line of

cases, but it did so cautiously, explaining that its

departure from that framework was justified only by

the combination of all of the circumstances present.

Those circumstances included the reduced

expectation of privacy held by Knights on account
of the conditions of his probation. [They] also included, as the Court
emphasized repeatedly, the fact that the search was supported by
reasonable suspicion{.]

[666] Kincade, 379 F.3d at 861 (Reinhardt, J., dissenting); see also
Sczubelek, 402 F.3d at 196 (McKee, J., dissenting) (“[T]here was no
real issue [in Knights] about whether the search was justified by a
reasonable suspicion .... Rather, the issue was whether the
warrantless- search of Knights’ private residence |was

9

constitutional ].”’).

We thus reject defendants’ argument that Knights justifies
applying the traditional Fourth Amendment balancing test to New
York’s DNA statute. In light of the Court’s emphasis in its recent
Fourth Amendment cases on applying the special-needs test to
suspicionless-search regimes, see, e.g., Chandler, 520 U.S. at 313-14,
117 S. Ct. 1295; Edmond, 531 U.S. at 37, 121 S. Ct. 447, as well as
the Court’s focus in Knights on the existence of reasonable suspicion
in that case, we decline to construe Knights as permitting us to apply
a general balancing test to suspicionless searches. The Supreme
Court has never applied a general balancing test to a
suspicionless-search regime. See Kincade, 379 F.3d at 862
(Reinhardt, J., dissenting). Until the Supreme Court expressly adopts
such an approach, the more prudent route, and the route more
consonant with the values underlying the Fourth Amendment, see
Vernonia, 515 U.S. at 667, 115 S. Ct. 2386 (O'Connor, J., dissenting)
(“For most of our constitutional history, mass, suspicionless searches
have been generally considered per se unreasonable within the
meaning of the Fourth Amendment.”), is to construe Knights as
dispensing with the special-needs test not solely because of the
probation search condition, but also because of the existence of
individualized suspicion. See Kincade, 379 F.3d at 863 (Reinhardt,
J., dissenting). .

2. Reduced Expectation of Privacy

Defendants also contend that the searches conducted in
Ferguson and Edmond are distinguishable from the search at issue in
this case, and therefore those cases do not apply. Specifically,
defendants argue that neither Edmond nor Ferguson involved a
“class of individuals [that] has a diminished expectation of privacy,”
whereas this case involves prison inmates, who have a “substantially

diminished expectation of privacy in their identifying information.”
[FN25] See also Kincade, 379 F.3d at 832; Nicholas, 2004 WL
1432533, at *3. In other words, defendants and those courts that have
applied Knights argue that while suspicionless searches of the
general public may require scrutiny under the special-needs test,
suspicionless searches of individuals with a reduced expectation of
privacy are subject only to the more lenient balancing test.

FN25. At the time of filing, all plaintiffs were
incarcerated. We discuss further below the fact that
some plaintiffs have since been released.

The problem with this argument is that neither Ferguson nor
Edmond rested upon the plaintiffs’ undiminished expectation of
privacy. Rather, the key to each case was the program’s
law-enforcement purpose. See Ferguson, 532 U.S. at 79, 121 S. Ct.
1281 (noting that the “critical difference between [earlier]
drug-testing cases and this one ... lies in the nature of the ‘special
need’ asserted as justification for the warrantless searches”); id. at
83-84, 121 S. Ct. 1281 (finding “critical” the fact that the “immediate
objective of the searches was to generate evidence for law
enforcement purposes “ (emphasis in original)); Edmond, 531 U.S.
at 48, 121 S. Ct. 447 (“Because the primary purpose of the
Indianapolis checkpoint program is ultimately indistinguishable from
the general interest in crime control, the checkpoints violate the
Fourth Amendment.”). Moreover, as plaintiffs point out, almost
every [667] special-needs case considered by the Supreme Court has
involved individuals with a diminished expectation of privacy. See,
e.g., Vernonia, 515 U.S. at 657, 115 S. Ct. 2386; Earls, 536 U.S. at
830, 122 S. Ct. 2559. Indeed, this court has previously held that a
“diminished expectation of privacy” is a principal criterion of
special-needs cases. Lifshitz, 369 F.3d at 186 (“[T hose subject to the
search must enjoy a diminished expectation of privacy, partly
occasioned by the special nature of their situation, and partly derived
from the fact that they are notified in advance of the search policy.”).

We therefore cannot agree with defendants’ contention that
a reduced expectation of privacy allows courts to dispense with the

special-needs test in cases involving suspicionless-search regimes.
Indeed, we view such logic with some concern, in light of the wide
swath of the general public who at one point or another has had a
reduced expectation of privacy. See, e.g., Lidster, 540 U.S. at 424,
124 S. Ct. 885 (motorists); Earls, 536 U.S. at 831-32, 122 S. Ct. 2559
(student athletes and students participating in extracurricular
activities); Vernonia, 515 U.S. at 656, 115 S. Ct. 2386 (public-school
students); Von Raab, 489 U.S. at 672, 109 S. Ct. 1384 (government
employees involved in drug interdiction); Skinner, 489 U.S. at 627,
109 S. Ct. 1402 (employees participating “in an industry that is
regulated pervasively to ensure safety”). Were we to apply the
general balancing test to New York’s statute simply because the
individuals searched had a diminished expectation of privacy, we
would be approving the application of a considerably more lenient
standard of review to suspicionless-search regimes that have
heretofore been subject to a more searching inquiry. We decline so
to relax our review of such regimes, which have historically been
regarded as a “closely guarded category.” Chandler, 520 U.S. at 309,
117 S. Ct. 1295; see also Edmond, 531 U.S. at 37, 121 S. Ct. 447.

We therefore reaffirm the approach we took in Marcotte and
conclude that plaintiffs’ Fourth Amendment challenge to New
York’s DNA-indexing statute is properly analyzed under the
special-needs test. Although courts have unanimously upheld
DNA-indexing statutes whether they have applied the special-needs
test or the general Fourth Amendment balancing test, the test applied
continues to matter, especially since the reasons for adopting a
particular test will inevitably have consequences in other search
contexts. We therefore continue to hold suspicionless searches to the
higher standard of review embodied in the special-needs inquiry.

III. Analysis Under the Special-Needs Test
A. Does New York’s Statute Serve a Special Need?
In determining whether New York’s DNA statute can be

justified under the special-needs exception, we first ask what the
statute’s primary purpose is, mindful that it is the statute’s immediate

rather than ultimate objective that is relevant. See Ferguson, 532
U.S. at 82-83, 121 S. Ct. 1281. In Marcotte, we considered the
constitutionality of Connecticut’s DNA statute, which, inter alia,
required covered sex offenders to submit a blood sample for DNA
indexing. See 193 F.3d at 74. We recognized that the statute was
“not motivated by concerns for inmate safety and health, institutional
order, or discipline” that have usually supported a special-needs
exception in the prison context. /d. at 78. Nevertheless, we found
that the statute did serve special needs, in that it would (1) aid law
enforcement in solving past and future crimes, and (2) deter
recidivism. Jd. at 79.

[668] Although we conclude that New York’s statute
likewise serves a special need, distinguishable from ordinary
law-enforcement needs, we do not think that the immediate objective
of the statute is to deter recidivism, although such deterrence may be
a valuable byproduct. [FN26] We instead agree with the magistrate
judge that close examination of the statute reveals that its “primary
purpose is to create a DNA database to assist in solving crimes
should the investigation of such crimes permit resort to DNA testing
of evidence.” Report-Recommendation, 2003 WL 256774, at *12.
The website of New York’s Division of Criminal Justice Services
states that “[t]he primary function of the DNA Databank is to
maintain DNA profiles of convicted offenders that can be used by
law enforcement to identify a perpetrator of a crime when DNA
evidence is retrieved from a crime scene.” Joint Appendix (“JA”) at
35. {FN27] By contrast, the website makes no mention of deterring
recidivism and, as the magistrate judge pointed out, the legislative
history surrounding both the 1994 enactment of the statute and its
1999 amendment is “devoid of references to identifying human
remains and discouraging recidivism.” Report-Recommendation,
2003 WL 256774, at *12.

FN26. The Marcotte court was not alone in relying
on a deterrence rationale. See Kincade, 379 F.3d at

840 (Gould, J., concurring).

FN27. As of November 22, 2005, the website was

currently available at http://criminal justice
.state.ny.us/forensic /dnafags.htm.

Significant also are those provisions of the New York statute
authorizing release of DNA records. The statute allows DNA
records to be released only (1) to law-enforcement agencies “upon
submission of a DNA record in connection with the investigation of
the commission of one or more crimes or to assist in the recovery or
identification of specified human remains”; or (2) for “criminal
defense purposes,” where a defendant seeks access to “samples and
analyses performed in connection with the case.” /d. § 995-c(6).
[FN28] As the magistrate judge recognized, unless we think
identification of human remains Is the primary purpose of the statute
(an unlikely prospect), the release provisions indicate that providing
information to aid in investigations is the statute’s immediate
objective. See Report-Recommendation, 2003 WL 256774, at *11.

FN28. The statute also provides for release of DNA

records for research and statistical purposes, but

only “after personally identiftable information has

been removed.” /d. § 995-c(6)(c).

We therefore ask whether a DNA-indexing statute that aims
to create a DNA-identification index to assist in solving crimes
serves a special need, as that term has been defined by the Court in
its recent cases. There can be little doubt that New York’s statute
serves a purpose related to law enforcement, but we do not think that
fact automatically condemns the New York statute. In light of the
distinction drawn by the Court in Lidster between
“information-seeking” searches or seizures, which respond to
“special law enforcement concerns,” 540 U.S. at 424, 124S. Ct. 885,
and those regimes aimed at “detect[ing] evidence of ordinary
criminal wrongdoing,” id. at 423, 124 S. Ct. 885 (internal quotation
marks omitted), we think a more nuanced approach to
law-enforcement concerns is appropriate. Lidster instructs courts to
examine carefully the type of law-enforcement concern served by a
particular search or seizure regime. Like the magistrate judge, we
find it crucial that the state, in collecting DNA samples, is not trying

to “determine that a particular individual has engaged in some
specific wrongdoing.” Report-Recommendation, [669] 2003 WL
256774, at *13. Although the DNA samples may eventually help law
enforcement identify the perpetrator of a crime, at the time of
collection, the samples “in fact provide no evidence in and of
themselves of criminal wrongdoing,” and are not sought “for the
investigation of a specific crime.” /d. (internal quotation marks
omitted). Because the state’s purpose in conducting DNA indexing
is distinct from the ordinary “crime detection” activities associated
with normal law-enforcement concerns, it meets the special-needs
threshold. See Green, 354 F.3d at 678 (“Although the state’s DNA
testing of inmates is ultimately for a law enforcement goal, ... it is not
undertaken for the investigation of a specific crime” (internal
quotation marks omitted)); Kimler, 335 F.3d at 1146 (“[U]nder the
special needs exception ... the desire to build a DNA database goes
beyond the ordinary law enforcement need.”).

B. Special-Needs Balancing Test

Having concluded that New York’s DNA statute serves a
special need, we now weigh that special need against the privacy
intrusion it effects to determine whether it is reasonable within the
meaning of the Fourth Amendment. See O'Connor, 480 U.S. at
725-26, 107 S. Ct. 1492: see also Lidster, 540 U.S. at 426-27, 124 S.
Ct. 885. We conduct a “fact-specific balancing of the intrusion on
the ... Fourth Amendment rights [of the persons searched] against the
promotion of legitimate governmental interests.” Earls, 536 U.S. at
830, 122 S. Ct. 2559; see also Chandler, 520 U.S. at 314, 117 S. Ct.
1295.

There can be little doubt that New York has a strong
government interest in obtaining identifying information from
convicted offenders and keeping a record of such information. See,
e.g., Sczubelek, 402 F.3d at 185 (“The interest in accurate criminal
investigations and prosecutions is a compelling interest that the DNA
Act can reasonably be said to advance.”); Kincade, 379 F.3d at
838-39 (finding that federal DNA statute serves “undeniably
compelling” state interests in (1) identifying probationers who

commit crimes once they are at large, and (2) deterring recidivism);
Green, 354 F.3d at 679 (finding that Wisconsin’s DNA statute
“serves an important state interest” in allowing law enforcement to
collect “the most reliable evidence of identification”); see also Earls,
536 US. at 824, 122 S. Ct. 2559 (evaluating strength of
government’s interest as well as “efficacy” of program in serving that
interest). Nor is there any question that New York’s statute is
effective in advancing that state interest. :

Against these government interests, the court must weigh the
intrusion on inmates, which is twofold. First, offenders are subject
to a physical intrusion when they are required to provide the DNA
samiple, whether by blood sample or buccal cheek swab: We
conclude that this physical intrusion is far outweighed by the
government’s strong interests in obtaining from plaintiffs the
uniquely effective identifying information that DNA provides. The
Supreme Court has long maintained that the intrusion effected by
taking a blood sample, while subject to the Fourth Amendment, is
minimal. See Skinner, 489 U.S. at 624, 109 S. Ct. 1402. In the
prison context, where inmates are routinely subject to medical
procedures, including blood draws, and where their expectation of
bodily privacy, while intact, is diminished, see Marcotte, 193 F.3d at
78, the intrusiveness of a blood draw is even further minimized.
[FN29]

FN29. In this regard, we note that plaintiffs have
submitted materials indicating that they were subject
to blood tests when they first entered prison. See JA
at 49 (“The taking of a DNA sample involves a
similar procedure to the one that was used on you
when you first entered the system and a blood
sample was taken from your arm by medical
personnel.”).

{670} The second intrusion to which offenders are subject is
the analysis and maintenance of their DNA information in New
York’s database. This intrusion may be viewed either as a search,
see Skinner, 489 U.S. at 616-17, 109 S. Ct. 1402 (chemical analysis

of blood sample “to obtain physiological data” is a Fourth
Amendment search), or as a seizure, see id. at 617 & n. 4, 109 S. Ct.
1402. Regardless, it is potentially a far greater intrusion than the
initial extraction of DNA, since the state analyzes DNA for
information and maintains DNA records indefinitely. It is this
intrusion that has caused the greatest concern among those of our
colleagues who would strike down DNA- indexing statutes as
unconstitutional. See Kincade, 379 F.3d at 867 (Reinhardt, J.,
dissenting) (arguing that DNA indexing “constitutes far more of an
intrusion than the mere insertion of a needle,” since the samples are
turned into “profiles capable of being searched time and time again
throughout the course of an individual’s life”); id. at 872 (Kozinski,
J., dissenting) (“[I]f we accept the legal presumption ... that once [an
offender] leaves supervised release he will be just like everyone else,
authorizing the extraction of his DNA now to help solve crimes later
is a huge end run around the Fourth Amendment.”); see also
Sczubelek, 402 F.3d at 201 (McKee, J., dissenting) (“In order to
sustain the DNA search of Sczubelek, we must conclude that it is
reasonable to catalogue his DNA even though he has committed no
new crimes because of the possibility, however remote or theoretical,
that he may one day commit another crime.”).

Although we acknowledge these concerns, we ultimately
conclude that the intrusion into plaintiffs’ privacy resulting from
state’s practice of analyzing and maintaining DNA records does not
outweigh the government’s strong interests. Although DNA
indexing has the potential to be broadly revealing, the New York
statute as written does not provide for sensitive information to be
analyzed or kept in its database. Rather, it provides only for the
analysis of identifying markers. N.Y. Exec. Law § 995-c(3), (5).
The junk DNA that is extracted has, at present, no known function,
except to accurately and uniquely establish identity. Although
science may someday be able to unearth much more information
about us through our junk DNA, that capability does not yet exist,
and, more importantly, the New York statute prohibits such analysis.
Id. The law provides that DNA records “shall be confidential,” id. §
995-d(1), and criminally punishes (1) the intentional disclosure of
DNA records to unauthorized individuals or entities, (2) the

intentional use or receipt of DNA records for “purposes other than
those authorized [by the statute],” and (3) knowingly tampering or
attempting to tamper with any DNA sample or the collection
container without lawful authority, id. § 995-f; 1999 N.Y. Laws, ch.
560, § 6 (amending the statute to include anti-tampering provision).
[FN30] Although plaintiffs and amici suggest that New York’s
statute could permit the state to use DNA for more harmful purposes
than maintaining an identification database, those facts are not
present here, and if they should arise, no doubt a different [671]
calculus under the special-needs analysis would result.

FN30. These offenses, previously misdemeanors,

were made class E felonies in 1999. 1999 N.Y.

Laws, ch. 560, § 5.

Given the limits imposed on the collection, analysis, and use
of DNA information by the statute, we see the intrusion on privacy
effected by the statute as similar to the intrusion wrought by the
maintenance of fingerprint records. [FN31] See Kincade, 379 F.3d
at 836 n. 3] (noting that “everyday ‘booking’ procedures routinely
require even the merely accused to provide fingerprint identification,
regardless of whether investigation of the crime involves fingerprint
evidence” (internal quotation marks omiutted)); Green, 354 F.3d at
680 (Easterbrook, J., concurring) (“Collecting felons’ DNA, like
collecting their fingerprints, handwriting exemplars, and other
information that may help solve future crimes (and thus improve the
deterrent force of the criminal sanction) is rationally related to the
criminal conviction.”); cf. Sczubelek, 402 F.3d at 185 (“Individuals
on supervised release cannot reasonably expect to keep information
bearing on their physical identity from government records.”). The
collection and maintenance of DNA information, while effected
through relatively more intrusive procedures such as blood draws or
buccal cheek swabs, in our view plays the same role as
fingerprinting. Given that the state likely already has a plethora of
identifying information about plaintiffs, in light of their status as
convicted felons, see Report-Recommendation, 2003 WL 256774, at
*16, the additional intrusion effected by the DNA statute is
insufficient to outweigh the state’s strong interest in maintaining a

30a

DNA index. [FN32] In other words, plaintiffs’ status as convicted
felons renders minimal the degree to which the New York statute
intrudes on their privacy.

FN31. The analogy we draw here between
fingerprinting and DNA indexing is not inconsistent
with our conclusion, in Part 1, supra, that the two
practices are dissimilar for purposes of determining
whether the Fourth Amendment is implicated. We
disagreed above, in light of Dionisio and Skinner,
with the district court’s suggestion that the physical
intrusion caused by drawing blood could be
considered identical to the state’s practice of taking
fingerprints. That conclusion, however,

does not preclude us from finding that the state’s
purpose in keeping DNA records is comparable to
the state’s purpose in keeping fingerprints and
photographs.

FN32. Thus, even though some plaintiffs are no
longer prisoners, and may thus claim a greater
expectation of privacy than they held while
incarcerated, we still find that--in light of the fact
(hat the state regularly maintains identifying records
of former tmmates--the privacy intrusion remains
relat‘vely minimal.

We therefore conclude that New York’s statute, which serves
a special need beyond the normal need for law enforcement, is
supported by strong government interests that outweigh the relatively
minimal intrusion on plaintiffs’ expectation of privacy. Moreover,
we reject plaintiffs’ argument that the state should be required to
obtain a warrant before taking DNA samples. 7.L.0., 469 U.S. at
351, 105 S. Ct. 733 (Blackmun, J., concurring) (noting that state must
generally show that obtaining a warrant would be “impracticable”
when it conducts warrantless search under the special-needs
exception). Obtaining a warrant requires probable cause, see, e.g.,
Mincey, 437 U.S. at 390, 98 S. Ct. 2408, which obviously does not

exist in the context of suspicioniess searches; requiring a warrant
from law enforcement would thus plainly be “impracticable.” The
usual purpose of obtaining a warrant--to permit the state to engage in
the normal law-enforcement function of crime investigation--is
absent in the context of an information-gathering search. And the
concerns that usually animate the warrant requirement--that the state
will exercise its search and seizure powers arbitrarily, [672] see
Skinner, 489 U.S. at 622, 109 S. Ct. 1402--are not at play in the case
of DNA-indexing statutes, which take a blanket approach and apply
to all convicted offenders falling within certain categories. We |
further note that in applying the special-needs exception in other
cases, the Supreme Court has not always required an express finding
that obtaining a warrant would be impracticable. See, e.g., Lidster,
540 U.S. at 427-28, 124 S. Ct. 885; Earls, 536 U.S. at 829-37, 122 S.
Ct. 2559.

Relying on the special-needs test rather than the general
balancing test employed by the district court, we hold that New
York’s DNA statute satisfies the Fourth Amendment. Accordingly,
the district court properly granted defendants’ motion to dismiss.

CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.

LEVAL, Circuit Judge, concurring.

I concur in the majority’s rejection of this challenge, brought
by “ew York State prisoners convicted of felony offenses, to the
taking of their DNA to assist in solving and prosecuting crimes. See
N.Y. Exec. Law § 995 et seq. (McKinney, 1999). I write separately
because I believe a few more words are in order to explain the
somewhat confusing relationship among the various precedents of
the Supreme Court. In my view, the model for analysis of the
question is provided by //linois v. Lidster, 540 U.S. 419, 124 S. Ct.
885, 157 L. Ed. 2d 843 (2004), the Supreme Court’s most recent
confrontation of the issue.

32a

I begin with Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct.
3164, 97 L. Ed. 2d 709, in which the Supreme Court in 1987 upheld
a Wisconsin law validating warrantless searches of probationers,
seeking evidence that the probationers had committed new violations
of law. /d. at 873, 107 S. Ct. 3164. The Court explained that “[a]
State’s operation of a probation system, like its operation of a school,
government office or prison, or its supervision of a regulated
industry, ... presents “special needs’ beyond normal law enforcement
that may justify departures from the usual warrant and
probable-cause requirements.” /d. at 873-74, 107 S. Ct. 3164.

Then, in /ndianapolis 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), the Supreme
Court struck down a highway checkpoint program designed to
discover and interdict narcotics, and a public hospital’s program to
screen urine samples of nonconsenting pregnant patients for the
purpose of prosecuting pregnant drug users for endangering their
unborn children. In these two cases, the Court asserted a broad rule
that searches or seizures without a warrant or individualized
suspicion were presumptively unconstitutional unless the primary
purpose was “‘to serve special needs, beyond the normal need for law
enforcement.” Edmond, 531 U.S. at 37, 121 S.Ct. 447 (internal
quotation marks omitted). In Ferguson, the Court explained the
different result reached in Griffin on grounds of the reduced
expectation of privacy held by persons on probation as a
consequence of a criminal conviction. See Ferguson, 532 U.S. at 81
n. 15, 121 S. Ct. 1281 (“Griffin is properly read as limited by the fact
that probationers have a lesser expectation of privacy than the public
at large.”). On a literal reading of Edmond and Ferguson, the broad
declared rule of presumptive unconstitutionality appeared to bar any
search or seizure without warrant or individualized suspicion unless
its primary purpose was “beyond the normal need for law
enforcement.” Edmond, 531 U.S. at [673] 37, 121 S. Ct. 447
(internal quotation marks omitted) (emphasis added); see also
Ferguson, 532 U.S. at 79, 121 S. Ct. 1281 (defining a valid “special
need” as “one divorced from the State’s general interest in law
enforcement”). In an extended footnote and elsewhere, Fe*guson

cast doubt on whether a warrantless, suspicionless search intended
to gather evidence for criminal prosecution could ever escape
presumptive unconstitutionality. See Ferguson, 532 U.S. 67, 81 n.
15, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (questioning “whether
‘routine use in criminal prosecutions of evidence obtained pursuant
to the administrative scheme would give rise to an inference of
pretext, or otherwise impugn the administrative nature of the ...
program’ “) (quoting Skinner v. Ry. Labor Executives’ Ass'n, 489
U.S. 602, 621, n. 5, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989}); see
also Ferguson, 532 US. at 82-83 & n. 20, 121 S. Ct. 1281.

Were Edmond and Ferguson the last word on the matter, it
would be difficult to reconcile approval of the New York DNA
Statute, whose purpose is to collect identifying evidence for use in
criminal prosecution, with the broad rule of presumptive
unconstitutionality announced in those cases. More recently,
however, in //linois v. Lidster, the Supreme Court signaled a
departure from the rigidity of the Edmond/Ferguson proposition.
Lidster upheld a programmatic seizure [FN1] without warrant or
individualized suspicion, done for the law-enforcement purpose of
seeking information identifying the perpetrator of an unsolved crime.

FN1. While Lidster concerned a seizure rather than
a search, the two can be closely analogized and are
both subject to the same provisions of the Fourth
Amendment. The New York DNA Statute seems to
involve both a search and a seizure. [n any event,
there appears to be no difference for these purposes
in the Fourth Amendment standards as between
searches and seizures.

The seizure in Lidster was a roadblock stopping motorists to
ask for information regarding a hit-and-run-accident which resulted
in the death of a cyclist. Lidster, 540 U.S. at 422, 124 S. Ct. 885.
The Court determined that the seizure was not presumptively
unconstitutional, notwithstanding the absence of a warrant or
individualized suspicion and that it had a law-enforcement purpose
of seeking information identifying the perpetrator of a crime. Instead

of applying the Edmond/Ferguson tule of presumptive
unconstitutionality to the Lidster facts, the Supreme Court instead
determined to test the constitutionality of the Lidster seizure on the
basis of a test of reasonableness. /d. at 426, 124 S. Ct. 885.

Following Lidster, the question remains when a search or
seizure for law-enforcement purposes without warrant or
individualized suspicion will be judged under the strict
Edmond/Ferguson test, and when it will be judged under the more
permissive reasonableness test found to apply in Lidster. While
Lidster refrained from laying out explicit standards, the mode of
analysis followed by the Supreme Court provides a guide to assess
the justification of New York’s DNA screening of the convicted
prisoners who bring this challenge. Lidster indicates that before
striking down a search or seizure not supported by a warrant or
individualized suspicion, the Court should undertake an examination
of all the circumstances in light of Fourth Amendment concerns and
norms to determine whether departure from the rule of presumptive
unconstitutionality is appropriate. If the Court finds that the
circumstances do not call for rigid application of the requirement of
a warrant or individualized suspicion, the Court must then consider
the reasonableness of the search or [674] seizure to determine
whether it satisfies the Fourth Amendment.

Lidster began by cautioning against reading the earlier,
broadly restrictive language too literally.

We concede that Edmond describes the law
enforcement objective there in question as a
“general interest in crime control,” but it specifies
that the phrase “general interest in crime control”
does not refer to every “law enforcement” objective.
We must read this and related general language in
Edmond as we often read general language in
judicial opinions--as referring in context to
circumstances similar to the circumstances then
before the Court and not referring to quite different
circumstances that the Court was not then

considering.

Lidster, 540 U.S. at 424, 124 S. Ct. 885 (internal citations omitted)
(quoting Edmond, 531 U.S. at 44 n. 1, 121 S. Ct. 447).

The Court then undertook a broad examination of all the
circumstances in light of Fourth Amendment objectives to determine
whether it was reasonable and appropriate, notwithstanding the
law-enforcement purpose, to depart in those circumstances from the
presumption of unconstitutionality asserted in Edmond and
Ferguson. The Court rejected the application of the rigid rule of
presumed unconstitutionality to the circumstances in favor of a test
based on reasonableness. The factors which led the Court to reject
the applicability of the more rigid rule of Edmond/Ferguson were the
following.

First, the checkpoint stop differed significantly from the
conventional model of search/seizure for law enforcement, which is
generally directed against persons believed to be complicit in the
crime. The police in Lidster were stopping all cars for a brief, polite
inquiry, to ask motorists “for their help in providing information
about a crime i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1234%3A1. Public record. Not legal advice.