Nicholas v. Goord

LEVAL, Circuit Judge, concurring.

I concur in the majority’s rejection of this challenge, brought by New 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 Illinois 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.

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 warrant-less searches of probationers, seeking evidence that the probationers had committed new violations of law. Id. 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.” Id. at 873-74, 107 S.Ct. 3164.

Then, in Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), and Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), 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 eases, 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 *67337, 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, Ferguson 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 U.S. 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 Illinois v. Lidster, the Supreme Court signaled a departure from the rigidity of the Edmond/Ferguson proposition. Lidster upheld a programmatic seizure1 without warrant or individualized suspicion, done for the law-enforcement purpose of seeking information identifying the perpetrator of an unsolved crime.

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 rule of presumptive unconstitutionally 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. Id. 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 Lid-ster. 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. Lid-ster 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 *674seizure 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 in all likelihood committed by others.” Id. at 423, 124 S.Ct. 885. Thus, the persons being stopped were not stopped because of any belief, as in the conventional case of search or seizure motivated by law enforcement objectives, that they might have been involved in the crime. Second, in view of the fact just mentioned, it would make no sense to require a warrant or individualized suspicion as the persons being stopped were not suspected of any unlawful conduct; such a requirement would have defeated the information-seeking objective of the traffic stop. See id. at 424, 124 S.Ct. 885 (“[Ujnlike Edmond, the context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play.”). Third, the Court found that the privacy interest ordinarily protected by the warrant/probable cause requirement was diminished. This was so because the persons detained were in automobiles on the highway — circumstances as to which it is well established that expectations of privacy are reduced. See id. (“The Fourth Amendment does not treat a motorist’s car as his castle.”); see also New York v. Class, 475 U.S. 106, 112-13, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450-52, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). Fourth, the extent of the intrusion on privacy was not great, consisting of a brief interruption of a car ride for a police officer’s inquiry whether anyone might volunteer information. Lidster, 540 U.S. at 425, 124 S.Ct. 885. Fifth, the Court found that the State’s motivating objective — to seek information concerning the hit-and-run accident which killed a bicyclist — was a suitable, important State objective.2 Id. at 427, 124 S.Ct. 885. Fi*675nally, the Court did not believe that assessing such stops under a standard of reasonableness, rather than a presumptive rule of unconstitutionality, would cause an unreasonable proliferation of such stops to the detriment of the citizenry. Id. at 426, 124 S.Ct. 885.

In sum, the Court concluded, having examined the pertinent circumstances with reference to the Fourth Amendment’s concerns, that it was appropriate for the constitutionality of that seizure to be evaluated on a basis of reasonableness, rather than under a presumption of unconstitutionality.

We face essentially the same type of question as in Lidster — whether this programmatic search, the taking of blood samples from New York State prisoners serving felony sentences in order to provide evidence solving future criminal cases — is subject to the customary blanket presumption of unconstitutionality for warrantless, suspicionless searches conducted for law-enforcement purposes. It is my understanding that we should approach the question as the Court did in Lidster — by examining all the surrounding circumstances to determine whether it is appropriate in Fourth Amendment terms to reject that presumption of unconstitutionality in favor of a test of reasonableness.

Examination of all the circumstances in light of the concerns of the Fourth Amendment supports the conclusion that the Edmond/Ferguson presumption of unconstitutionality has no appropriate role here. First, this search differs substantially from the usual law-enforcement circumstance where the search is motivated by information connecting the person or place searched with a particular known and unsolved crime. What is involved is the establishment of a database, akin to a fingerprint database, to assist in the future solution of crimes. The search is not motivated by suspicion that the person being searched was involved in any unsolved crime. Second, for the reason just given, rigid adherence to a requirement of a warrant and/or individualized suspicion would be incompatible with the success of the governmental objective. It would be impossible to establish such a database of important law-enforcement information enabling identification of the perpetrators of rapes, murders, and other violent crimes, if the data concerning any individual could not be obtained until the authorities possessed information supporting a reasonable suspicion of his involvement in the crime.

Third, the challenge was brought by prisoners serving felony terms, who do not enjoy the same full rights of privacy as the public at large. The administrative and penalogical concerns of operating a prison system inevitably result in a major diminution of the prisoners’ privacy interest. Prisoners are routinely subject to searches of their persons and their cells without warrant, suspicion, or notice. See Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (holding that the Fourth Amendment proscription against unreasonable searches does not ap*676ply within the confínes of the prison cell); Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (holding that routine body cavity searches of prisoners conducted after contact visits with outside persons do not violate the Fourth Amendment). Furthermore, as DNA is identifying information, it is particularly noteworthy that prisoners’ right to privacy with respect to their identifying information is extremely reduced. Their names, photographs, fingerprints, descriptions, and other identifying information are mandatorily taken and are placed in databases that become available to law enforcement throughout the nation, if not the world.

I do not mean to imply , by this latter point that the Fourth Amendment offers no protection to convicted prisoners. The point is less extreme. It is merely that the privacy interest they enjoy is less broad than that of the ordinary person. As noted above, in Ferguson, the Supreme Court justified Griffin’s toleration of a warrantless, suspicionless, routine search of probationers, conducted for the purpose of collecting information for law-enforcement purposes, on the ground that “probationers have a lesser expectation of privacy than the public at large.” Ferguson, 532 U.S. at 81 n. 15, 121 S.Ct. 1281. If that is true for probationers, it is so a fortiori for prisoners serving felony sentences. Similarly, one of the factors that led the Supreme Court to approve the warrantless, suspicionless seizure for law-enforcement purposes in Lidster was the fact that while people are in automobiles on the highway, the scope of their Fourth Amendment protection is diminished. Lidster, 540 U.S. at 424, 124 S.Ct. 885 (“The Fourth Amendment does not treat a motorist’s car as his castle ...: And special law enforcement concerns will sometimes justify highway stops without individualized suspicion.”). Once again, to the extent that the diminished privacy expectations of persons in a car on the highway played a role in justifying the rejection of the rigid presumption of unconstitutionality for a law-enforcement motivated seizure in Lidster, the diminished privacy expectations of the felony prisoners is an a fortiori case.

Fourth, the extent of intrusion occasioned by this search is not great, either in terms of the inconvenience inflicted on the prisoner or the degree of intrusion into private matters. This factor is slightly more favorable to the parties objecting than was true in Lidster, where the only inconvenience inflicted was a brief traffic stop, and the only information sought was on a volunteered basis without direct questioning. Here, the subject prisoners have no choice whether to yield the information, and the procedure (at least in the cases of these plaintiffs) involved piercing the skin to draw a blood sample. The drawing of such a blood sample is, nonetheless, quite a minor intrusion, of the sort that ordinary citizens voluntarily submit to routinely for medical purposes. See Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“[T]he intrusion occasioned by a blood test is not significant, since such tests are commonplace in these days of periodic physical examinations and experience with them teaches us that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.” (internal quotation marks omitted)). Furthermore, the information being exacted from the test consists of nothing more than identifying information, akin to the fingerprint and identifying photograph which are routinely taken from prisoners. The blood sampling mandated by the statute is not being used to detect diseases, substances ingested, or anything revelatory of the prisoner’s conduct.

*677Finally, the State objective is useful and valuable. For a very long time, law-enforcement authorities both state and federal have built up and maintained criminal identification files, consisting of fingerprint data and identifying photographs for use in solving crimes in the future. DNA statutes bring such crime databases up to date with contemporary (and infinitely more reliable) scientific methods of identification. The establishment of such databases not only increases the likelihood of identifying the perpetrators of violent offenses, but, as a very important corollary, reduces the likelihood of mistaken conviction of innocent persons. The importance of the objective, and the impossibility of achieving it if a warrant is required, surely tends to support rejection of the role of presumptive uneonstitutionality. Nor would rejection of a rule of presumptive uneonstitutionality lead to proliferation of such procedures to the detriment of the citizenry. The challenge considered here is brought by prisoners convicted of a felony, and their status as such plays a significant role in the reasoning justifying the search. A ruling exempting this search from the Edmond/Ferguson presumption of uneonstitutionality would not result in a proliferation of mandatory DNA sampling of the publie-at-large.

All of the factors pertinent to the goals of the Fourth Amendment favor rejection of the Edmond/Ferguson presumption of uneonstitutionality. The conventional rule of presumptive uneonstitutionality for law-enforcement-motivated searches not supported by a warrant or individualized suspicion should accordingly have no application here.

It does not necessarily follow that the search “is automatically, or even presumptively, constitutional.” Lidster, 540 U.S. at 426, 124 S.Ct. 885.

It simply means that we must judge its reasonableness, hence, its constitutionality, on the basis of the individual circumstances .... [I]n judging reasonableness, we look to the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.

Id. at 426-27, 124 S.Ct. 885 (internal quotation marks omitted).

There is no difficulty concluding that the challenged searches conducted under the DNA Statute are reasonable and consistent with the Fourth Amendment. It is unnecessary for me to go through the factors that made the challenged searches reasonable. Such a discussion would largely duplicate what was said in the majority opinion and in the foregoing discussion explaining the rejection of the Edmond/Ferguson presumption of unconstitutionality.

In sum, I understand the teaching of Lidster as follows. When confronting a challenge to a law-enforcement motivated search or seizure not supported by a warrant or individualized suspicion, before striking it down on the basis of presumed uneonstitutionality, the court should undertake, as in Lidster, an examination of all the circumstances to determine whether in light of Fourth Amendment concerns and norms it is appropriate to reject the Edmond/Ferguson rule of presumed unconstitutionality. If the court finds that the circumstances do not call for rigid application of the requirement of a warrant or individualized suspicion, the court would go on to consider the reasonableness of the pertinent search to determine whether it withstands the challenge on the basis of the Fourth Amendment.

. 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. In any event, there appears to be no difference for these purposes in the Fourth Amendment standards as between searches and seizures.

. I recognize that the discussion in Lidster of the gravity of the State's objective was in the *675portion of the opinion discussing the reasonableness of the stop, after the determination that the presumptive rule of unconstitutionality was not applicable. Lidster, 540 U.S. at 427, 124 S.Ct. 885. It nonetheless seems clear from the tenor of the Court’s discussion that an evaluation of the importance of the State’s interest plays a role in the determination whether the rule of presumed unconstitutionality should apply. An important State objective better supports departure from the presumptive rule of unconstitutionality than an insignificant or frivolous State objective. It would be perverse to interpret the Supreme Court’s opinion otherwise.