A better interpretation of "special needs" doctrine after Edmond and Ferguson.

• Author: Kravis, Jonathan
• Position: Case Note

United States v. Miles, 228 F. Supp. 2d 1130 (E.D. Cal. 2002).

In 2000, Congress enacted the DNA Analysis Backlog Elimination Act, (1) which requires convicted sex offenders and other felons (2) to submit DNA samples to the Combined DNA Index System (CODIS), a national database used to identify DNA evidence found at crime scenes. (3) Two federal district courts have applied the Supreme Court's special needs doctrine to determine whether the collection of samples from felons under the DNA Act violates the Fourth Amendment, with different results. This Comment argues that the debate over the constitutionality of the DNA Act demonstrates that the Supreme Court's most recent interpretation of the special needs doctrine is misguided.

Two recent cases, United States v. Miles (4) and United States v. Reynard, (5) have reached different conclusions about whether the collection of samples under the DNA Act violates the Fourth Amendment. (6) The Miles and Reynard courts agreed that the blood-sample extractions mandated by the Act are warrantless searches lacking probable cause, and therefore would be constitutional only if they fell under the "special needs" exception to the warrant requirement. (7) This exception holds that the government may conduct a search without a warrant or probable cause "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." (8) Both courts further agreed that the Court's recent decisions in City of Indianapolis v. Edmona (9) and Ferguson v. City of Charleston (10) should be the guideposts for special needs inquiry. The courts disagreed only on the outcome of that inquiry: Miles struck down the DNA Act searches, (11) while Reynard upheld them. (12)

Part I of this Comment summarizes the special needs doctrine as interpreted in Edmond and Ferguson; Part II offers an alternative approach to the doctrine; and Part III applies that alternative approach to the CODIS, concluding that the constitutionality of the CODIS should be evaluated under the alternative doctrine.

I

In discussing the DNA Act searches, both the Miles and Reynard courts relied on City of Indianapolis v. Edmond and Ferguson v. City of Charleston. (13) In Edmond, the Court struck down Indianapolis's highway checkpoint program, under which randomly stopped cars were visually inspected by officers and sniffed by narcotics-detecting dogs. (14) Unlike highway checkpoints with virtually identical effects upheld in earlier cases, (15) Indianapolis's program was created for the "primary purpose [of detecting] evidence of ordinary criminal wrongdoing." (16) Thus, the Border Patrol could stop cars near the border, (17) and the police could stop motorists for sobriety checks, (18) because in both cases the searches were justified by a primary purpose distinct from "general crime control ends," namely, safeguarding the border and removing drunk drivers from the roads. But because Indianapolis had conceded that its program "unquestionably [had] the primary purpose of interdicting illegal narcotics," (19) the program could not be similarly justified.

In Ferguson, Charleston proved that it had learned from Indianapolis's unwise concession in Edmond. Charleston argued that a public hospital's policy of testing pregnant women for cocaine use had the primary non-law-enforcement purpose of protecting the health of mother and child, and therefore fell within the special needs exception. (20) The Court nevertheless struck down the program, concluding that while the "ultimate goal of the program" may have been to get the women into treatment, the "immediate object of the searches was to generate evidence for law enforcement purposes in order to reach that goal." (21)

How did the Court distinguish the "immediate object of the searches" at issue in Ferguson from the warrantless drug-testing programs upheld in earlier cases? Here again, the Court defined the special needs category by considering the primary purpose to which the government intended to put the results of the search. Each of the earlier programs upheld by the Court was justified by a purpose that did not involve arrest and prosecution: protecting the integrity of the front lines in the war on drugs, (22) gathering reliable data on train accidents caused by substance abuse, (23) or ensuring the safety of high school students. (24) The Charleston policy, by contrast, focused on "the arrest and prosecution" of the drug-abusing mothers. (25)

Taken together, Edmond and Ferguson articulate a kind of evidentiary approach to special needs analysis. In determining whether a warrantless search falls under the special needs exception, the court asks, "What is the primary purpose to which the government intends to put the results of the search?" If the answer is simply, "to generate evidence for law enforcement purposes," (26) then the exception does not apply. If, however, the government can plausibly argue that it needs the search results primarily for something other than criminal prosecution, then the special needs exception applies.

The Miles and Reynard courts faithfully applied this test in their analyses of the constitutionality of the DNA Act searches. In both cases, the government argued that the primary purpose of the searches was to create a more accurate DNA database, which would assist law enforcement in solving past and future crimes and thereby ensure a more accurate criminal justice system. (27) The Miles court concluded that this purpose was "indistinguishable from the government's basic interest in enforcing the law," since the evidence was being used to...