GREEN, NORMAN C. v. BERGE, GERALD A. (1/9/04 CA 7th Cir.)
Evans, Circuit Judge
The Court here upholds the Wisconsin law compelling felons in Wisconsin prisons to submit a DNA sample for analysis and storage in a data bank.
The plaintiffs contend that taking samples of their DNA pursuant to the law is an unconstitutional search and seizure in violation of the Fourth Amendment of the United States Constitution. * * *All 50 states and the federal government have adopted DNA collection and data bank storage statutes that, although not identical, are similar to the one in Wisconsin. See Robin Cheryl Miller, Annotation, “Validity, Construction, and Operation of State DNA Database Statutes,” 76 A.L.R.5th 239 (2000). Challenges to these statutes as a whole and to their subparts have almost uniformly been unsuccessful. Thus, the plaintiffs in this suit face a decidedly uphill struggle on their one claim that their constitutional rights were violated when DNA was extracted from them in the absence of a warrant, probable cause, or an individualized and reasonable suspicion to believe they committed a crime. * * *
Wisconsin’s DNA collection statute is, we think, narrowly drawn, and it serves an important state interest. Those inmates subject to testing because they are in custody, are already “seized,” and given that DNA is the most reliable evidence of identification—stronger even than fingerprints or photographs—we see no Fourth Amendment impediments to collecting DNA samples from them pursuant to the Wisconsin law. The Wisconsin law withstands constitutional attack under the firmly entrenched “special needs” doctrine.
Judge Easterbrook's concurring opinion has an interesting analysis, based on the premise that:
there are at least four major categories, potentially subject to differing legal analysis.Additional discussion of Kincaide may be found in my Jan. 6 Indiana law Blog entry (scroll down). Posted by Marcia Oddi at January 9, 2004 01:46 PMPrisoners make up the first category. Their privacy interests are extinguished by the judgments placing them in custody. * * * Persons on conditional release—parole, probation, supervised release, and the like—are the second category. * * * One common condition of release is submission to tests for drugs, without the need for person-specific suspicion. DNA may be extracted from samples obtained through these tests without any incremental invasion of privacy. * * * Felons whose terms have expired are the third category. Established criminality may be the basis of legal obligations that differ from those of the general population. “A broad range of choices that might infringe constitutional rights in free society fall within the expected conditions . . . of those who have suffered a lawful conviction.” McKune v. Lile, 536 U.S. 24, 36 (2002). One need only think of Megan’s Law and its variations across the nation. * * *
Those who have never been convicted of a felony are the last distinct category. What is “reasonable” under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population. Just as parolees’ homes may be searched without a warrant or probable cause, while both are required to search a free person’s home, so it may be that collection of DNA samples from the general population would require person-specific cause—or at least a “special need,” whatever the meaning of that phrase in recent decisions turns out to be. See Indianapolis v. Edmond, 531 U.S. 32 (2000); Ferguson v. City of Charleston, 532 U.S. 67 (2001). The majority in United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003), which held that the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. §14135a, violates the fourth amendment, made a fundamental error when it applied the “special need” approach of Edmond and Ferguson to persons on supervised release from criminal sentences that have yet to expire. That confuses the fourth category with the second. Knights, which held that conditions of supervised release may be enforced without regard to whether they would be “reasonable” as applied to the general population, was issued after Edmond and Ferguson; the Justices evidently perceive that these decisions cover different domains.
This appeal does not present the question whether DNA could be collected forcibly from the general population, and I understand the court’s reference to Edmond and Ferguson to mean no more than that these decisions are compatible with collecting and preserving DNA from persons in the first two categories, and likely from those in the third. There will be time enough to address the fourth if and when a more general statute about the collection and use of medical information should be enacted. [emphasis aded]