Padgett v. Donald: Why Not So Special - Victoriya Kulik

• Citation: Vol. 57 No. 2
• Publication year: 2006

Casenote

Padgett v. Donald: Why Not So Special

In Padgett v. Donald,¹ the Eleventh Circuit Court of Appeals unanimously held that a state statute,² permitting compelled collection of saliva samples from incarcerated felons for DNA profiling, does not violate the federal Constitution's Fourth Amendment,³ the search and seizure provisions of the state constitution,⁴ or the felons' rights to privacy under the federal or state constitutions.⁵ The circuits are split whether to apply the special needs analysis or the balancing test to DNA profiling statutes.⁶ In this case of first impression for the circuit, the Eleventh Circuit applied the balancing test.⁷ This decision is important because it opens up the possibility for the courts to disregard the special needs analysis and through the traditional balancing test balance away individuals' freedoms.

I. Factual Background

In 2000 the Georgia General Assembly amended O.C.G.A section 24-460⁸ (the "Statute") to require convicted, incarcerated felons to provide a sample of their deoxyribonucleic acid ("DNA") to the Georgia Department of Corrections ("GDOC") for analysis and storage in a data bank maintained by the Georgia Bureau of Investigation ("GBI").⁹ Federal, state, and local law enforcement officers have access to the data bank when they are engaged in an official investigation of any criminal offense.¹⁰ The Statute covers all convicted felons incarcerated on or after July 1, 2000, as well as all felons incarcerated as of July 1, 2000.¹¹

Pursuant to the Statute, the GDOC can obtain an incarcerated felon's DNA sample by taking blood, swabbing the inside of his or her mouth for saliva, or using any other noninvasive procedure.¹² The GDOC's policy is to obtain DNA samples through saliva from oral swabs.¹³ The samples are then sent to the GBI for typing and placement in the DNA database.¹⁴ Inmates refusing to submit to the test are subjected to disciplinary reports followed by hearings and possible disciplinary action.¹⁵ Upon refusal to cooperate, the prison staff forcefully takes the sample.¹⁶

On July 15, 2001, Roy Padgett, a Georgia state prison inmate, tried to avoid giving his DNA sample by filing a pro se civil rights action in which he challenged the constitutionality of the Statute.¹⁷ As the suit was pending, Paul Boulineau and John Burney (the "intervenors-appellants"), prison inmates convicted of felonies prior to July 1, 2000, intervened, and counsel was appointed.¹⁸ After the appellants' intervention, Padgett, the original challenger, consented to the taking of the DNA sample shortly before the release from incarceration and became a non-party to the appeal after he was dismissed from the action.¹⁹

More than a year after the original action was filed, the appellants filed an amended complaint seeking a declaratory judgment against GDOC, GBI, and the Commissioner of the GDOC, alleging, among other claims, that the Statute violated their federal and state constitutional protections from unreasonable searches as well as their right to privacy.²⁰ The appellants also sought an injunction to prevent the GDOC from taking the DNA samples without inmates' consent.²¹

On cross-motions for summary judgment, the United States District Court for the Northern District of Georgia denied the appellants' motion and granted the GDOC, the GBI, and the Commissioner's motion.²² The district court held that the plaintiffs abandoned their allegations against the GDOC and the GBI.²³ On appeal, the appellants did not challenge this part of the district court's holding.²⁴ Thus, the appellate court considered the district court's holding only with respect to the Commissioner's motion regarding the appellants' right to privacy and unreasonable searches.²⁵ Under the Eleventh Amendment,²⁶ the Commissioner could claim immunity, but failed to do so.²⁷ The appellate court did not raise the issue of the Commissioner's immunity sua sponte and decided the appellants' state constitutional claims on their merits.²⁸

Regarding the unreasonable searches claim, the district court rejected the appellants' "special need" analysis and instead applied the traditional Fourth Amendment balancing test to uphold the Statute.²⁹ Regarding the privacy rights claim, the district court held that the appellants' right to privacy was not infringed because the state's interest in having a DNA data bank outweighed the appellants' privacy rights in their identities.³⁰ The district court reasoned that because the appellants are already subject to other invasions due to their incarceration, the bodily intrusions caused by the Statute are minimal.³¹

The appellants presented two issues on appeal. First, whether the district court should have concluded that warrantless extraction and analysis of the appellants' DNA under the Statute was unconstitutional under the United States and Georgia Constitutions' search and seizure provisions.³² Second, whether the Statute violated the appellants' rights to privacy.³³

II. Legal Background

The court of appeals had the choice of which test to apply in deciding whether the Statute allowing forced collection of DNA samples was constitutional. The first test is the traditional Fourth Amendment balancing test, which determines reasonableness of the search by weighing the private interests of the individual against the government's interests without a finding of a special need.³⁴ The second test is a relatively new special needs analysis, which allows suspicionless search if the government has a special need that goes beyond general law enforcement,³⁵ such as maintaining order within prisons,³⁶ protecting the United States' borders,³⁷ or achieving certain administrative purposes.³⁸ The term "special needs" entered the legal arena twenty years ago in Justice Blackmun's concurring opinion in New Jersey v. T.L.O,³⁹ where he agreed with the Court that the probable cause requirement has exceptions.⁴⁰ However, the exceptions are allowed only if "special needs, beyond the normal need for law enforcement, make the warrant and probable [] cause requirement impracticable. . . ."⁴¹ Subsequently, the Court adopted the new terminology, and thus created a new test in O'Connor v. Ortega⁴² and Griffin v. Wisconsin.⁴³ In those cases the Court held that, in limited circumstances, a search may be constitutional even if unsupported by a warrant or probable cause when special needs, other than the normal need for law enforcement, provide sufficient justification for the search.⁴⁴ The Fourth, Fifth, and Ninth Circuits apply the traditional Fourth Amendment balancing test.⁴⁵ The Second, Seventh, and Tenth Circuits apply the special needs analysis.⁴⁶

A. Special Needs Analysis

A federal challenge concerning searches and seizures starts with the Fourth Amendment of the United States Constitution, which prohibits unreasonable searches and seizures.⁴⁷ A State of Georgia challenge begins with the amendment in the Georgia Constitution which is equivalent to the United States Constitution's Fourth Amendment. The Fourth Amendment 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 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.⁴⁸

The Fourth Amendment and the Georgia Constitution's amendment on searches and seizures are written essentially with the same language.⁴⁹ The Eleventh Circuit acknowledged that "the statutorily required extraction of saliva for DNA profiling constitutes a 'search' within the meaning of the [Fourth] Amendment."⁵⁰ Georgia's standard for evaluating reasonableness of searches under the state's Constitution—the "totality of the circumstances" test—is identical to the Fourth Amendment federal standard.⁵¹ Thus, because both amendments provide the same amount of protection to individuals, extraction of saliva for DNA profiling purposes constitutes a search within the search and seizure amendments of both the federal Constitution and the Georgia Constitution.

1. The Fourth Amendment Reasonableness Requirement. The

Fourth Amendment proscribes only those searches and seizures that are unreasonable.⁵² Traditionally, for a search or seizure to be reasonable and, thus, constitutional under the Fourth Amendment, the government must produce a warrant supported by probable cause, unless an exception that justifies the absence of the former is available.⁵³ Under the new approach, in certain areas the courts move away from requiring a warrant supported by probable cause and proceed to balance individuals' and states' interests without a warrant supported by probable cause. Thus, reasonableness also "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself."⁵⁴ Moreover, "a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreason-able."⁵⁵ Thus, "[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion."⁵⁶

The principle demonstration of a reasonable search lacking even a reasonable suspicion of a criminal wrongdoing is Skinner v. Railway Labor Executives' Ass'n.⁵⁷ There, the Federal Railroad Administration (the "FRA") promulgated regulations mandating blood and urine tests of railroad employees involved in certain train accidents.⁵⁸ Moreover, the FRA authorized railroads to administer breath and urine tests to employees who violated certain safety rules.⁵⁹ The FRA justified its regulations on the premise that alcohol and drug abuse by railroad employees presents a serious threat to safety.⁶⁰ Railway labor...