Roy Padgett v. James E. Donald

                                                                   [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT          FILED
                         ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                              No. 03-16527                 March 4, 2005
                                                         THOMAS K. KAHN
                        ________________________
                                                             CLERK

                  D. C. Docket No. 01-01936 CV-TWT-1

ROY PADGETT, et al.,

                                                      Plaintiff,

PAUL N. BOULINEAU,
JOHN BURNEY,


                                                     Plaintiffs-Appellants,

                                  versus

JAMES E. DONALD, Commissioner of
Georgia Department of Corrections,
GEORGIA BUREAU OF INVESTIGATION, and
GEORGIA DEPARTMENT OF CORRECTIONS,

                                                        Defendants-Appellees.

                        ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (March 4, 2005)
Before ANDERSON and BIRCH, Circuit Judges, and ROYAL *, District Judge.

BIRCH, Circuit Judge:

       In a case of first impression for our circuit, we decide whether the United

States and Georgia Constitutions permit the Georgia Department of Corrections to

compel incarcerated felons to submit saliva samples for DNA profiling, pursuant to

O.C.G.A. § 24-4-60. The district court granted summary judgment in favor of the

Commissioner of the Georgia Department of Corrections. Because we conclude

that the statute does not violate the Fourth Amendment, the search and seizure

provisions of the Georgia Constitution, or the felons' rights to privacy under the

United States or Georgia Constitutions, we AFFIRM.

                                      I. BACKGROUND

       The material facts in this case are not in dispute. In 2000, the Georgia

General Assembly amended O.C.G.A. § 24-4-60 (“the statute”) to require

convicted, incarcerated felons to provide a sample of their DNA to the Georgia

Department of Corrections (“GDOC”) for analysis and storage in a data bank

maintained by the Georgia Bureau of Investigation (“GBI”). See O.C.G.A. § 24-4-

60.1 The DNA profiles can be released from the data bank “to federal, state, and

       *
       Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
       1
           The relevant portion of the statute provides:
                 In addition, on and after July 1, 2000, any person convicted of a

                                                  2
local law enforcement officers upon a request made in furtherance of an official

investigation of any criminal offense.” O.C.G.A. § 24-4-63(a). The statute applies

to all persons convicted of a felony and incarcerated on or after 1 July 2000 and all

felons incarcerated as of that date. O.C.G.A. § 24-4-60.

       The statute allows the GDOC to obtain an incarcerated felon’s DNA sample




              felony and incarcerated in a state correctional facility shall at the
              time of entering the prison system have a sample of his or her
              blood, an oral swab, or a sample obtained from a noninvasive
              procedure taken for DNA (deoxyribonucleic acid) analysis to
              determine identification characteristics specific to the person. The
              provisions and requirements of this Code section shall also apply
              to any person who has been convicted of a felony prior to July 1,
              2000, and who currently is incarcerated in a state correctional
              facility in this state for such offense. The provisions and
              requirements of this Code section shall also apply to any person
              who has been convicted of a felony in this state on or after July 1,
              2000, and who is incarcerated in a private correctional facility in
              this state for such offense pursuant to a contract with the
              Department of Corrections upon entering the facility, and for any
              person convicted of a felony prior to July 1, 2000, and who is
              incarcerated in a private correctional facility in this state pursuant
              to contract with the Department of Corrections. The analysis shall
              be performed by the Division of Forensic Sciences of the Georgia
              Bureau of Investigation. The division shall be authorized to
              contract with individuals or organizations for services to perform
              such analysis. The identification characteristics of the profile
              resulting from the DNA analysis shall be stored and maintained by
              the bureau in a DNA data bank and shall be made available only as
              provided in Code Section 24-4-63. For the purposes of this Code
              section, the term "state correctional facility" means a penal
              institution under the jurisdiction of the Department of Corrections,
              including inmate work camps and inmate boot camps; provided,
              however, that such term shall not include a probation detention
              center, probation diversion center, or probation boot camp under
              the jurisdiction of the Department of Corrections.
O.C.G.A. § 24-4-60.

                                                 3
by taking blood, swabbing the inside of his mouth for saliva, or using any other

noninvasive procedure. Id. In implementing the statute, the GDOC formulated

policy dictating that members of the prison staff obtain the samples by swabbing

the inside of felons’ mouths for saliva. The GDOC then sends the swabs to the

GBI for typing and placement in the DNA database. Inmates that refuse to submit

to the procedure are subjected to disciplinary reports followed by hearings and

possible disciplinary action. If any inmate still refuses to cooperate, the prison

staff takes the sample by force.

       Roy Padgett, a Georgia prison inmate, filed a pro se civil rights action

challenging the constitutionality of the statute. Paul Boulineau and John Burney,

prison inmates convicted of felonies prior to 1 July 2000, intervened,2 and counsel

was appointed. Padgett was later dismissed from the action and is not a party to

this appeal.

       In their Amended Complaint, Boulineau and Burney sought a declaratory

judgment that the statute violated their constitutional rights and an injunction

preventing the GDOC from taking their DNA without their consent. They claimed

the statute (1) violated the search and seizure provisions of the United States and

Georgia Constitutions; (2) violated the Fifth and Fourteenth Amendment because


       2
          Frederick Pettigrew also intervened. He was later dismissed from the action and is not a
party to this appeal.

                                                4
it is unreasonably vague; (3) deprived them of due process of law; (4) violated

their rights to privacy under the United States and Georgia Constitutions; and (5)

constituted an ex post facto law in violation of the United States and Georgia

Constitutions. They named the GBI, the GDOC, and the Commissioner of the

GDOC (“the Commissioner”) as defendants.

      On cross-motions for Summary Judgment, the district court granted the GBI,

the GDOC, and the Commissioner’s motion for Summary Judgment and denied

Boulineau and Burney’s motion. The district court held that Boulineau and Burney

had abandoned their claims against the GBI and the GDOC. As for their search

and seizure and right to privacy claims against the Commissioner, the claims they

appeal here, the district court concluded that the statute did not authorize an

unreasonable search or infringe their rights to privacy in violation of the United

States or Georgia Constitutions. In evaluating Boulineau and Burney’s search and

seizure claims, the court applied a balancing test and held that Georgia’s legitimate

interest in creating a DNA data bank outweighs their diminished privacy interests.

It rejected Boulineau and Burney’s argument that Georgia could not take their

DNA sample without a suspicion of individual wrongdoing absent a “special need”

other than general law enforcement. As for their right to privacy claims, the

district court held that the bodily intrusion caused by the statute is minimal in light



                                           5
of the other invasions prisoners endure by virtue of their incarceration. It further

concluded that the state’s interest in creating a DNA data bank outweighs any

privacy rights that Boulineau and Burney have in their identities. On appeal,

Boulineau and Burney argue that the district court erred in concluding that the

warrantless extraction and analysis of their DNA under the statute (1) is a

constitutional search under the United States and Georgia Constitutions; and (2)

does not violate their rights to privacy.3

       Prior to his scheduled release date, Burney moved for an injunction to

prevent the collection, analysis, and storage of his DNA sample. The district court

ordered Burney to provide a DNA sample but enjoined the Commissioner, the

GDOC, and the GBI from analyzing the sample or including it in the data bank

until further order of the court. By consent order entered on 13 January 2004,

Boulineau also provided a DNA sample to the GDOC. Neither Burney nor

Boulineau’s DNA sample will be analyzed or stored in the data bank until the

outcome of this litigation.

                                     II. DISCUSSION



       3
         Boulineau and Burney do not address the district court’s conclusion that they abandoned
their claims against the GBI and the GDOC. Thus, they waive any arguments against these
defendants, and we only address their arguments against the Commissioner. See United States v.
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (appellant abandons any issue not raised on
appeal).

                                               6
      We review de novo a district court’s legal conclusions as to the

constitutionality of a statute. Doe v. Kearney, 329 F.3d 1286, 1293 (11th Cir.

2003), cert. denied __ U.S. __, 124 S. Ct. 389.

      A. Search and Seizure

      Under the Fourth Amendment,

              “[t]he 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.”
U.S. C ONST. amend. IV. The Commissioner does not dispute that the statutorily

required extraction of saliva for DNA profiling constitutes a “search” within the

meaning of the Amendment. See Skinner v. Ry. Labor Executives’ Ass’n, 489

U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13 (1989) (blood tests, breathalyser tests,

and the taking of urine constitute searches); Cupp v. Murphy, 412 U.S. 291, 295,

93 S. Ct. 2000, 2003 (1973) (inquiry that goes “beyond mere physical

characteristics . . . constantly exposed to the public” constitutes a search). As such,

we need address only the search’s reasonableness, an inquiry which takes into

account “all of the circumstances surrounding the search or seizure and the nature

of the search or seizure itself.” See Skinner, 489 U.S. at 619, 109 S. Ct. at 1414

(citations omitted).

                                           7
      Although reasonableness in most criminal cases depends on the

government’s obtaining a warrant supported by probable cause, the Supreme Court

has emphasized “the longstanding principle that neither a warrant nor probable

cause, nor, indeed, any measure of individualized suspicion, is an indispensable

component of reasonableness in every circumstance.” Nat’l Treasury Employees

Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 1390 (1989); accord

Skinner, 489 U.S. at 624, 109 S. Ct. at 1417 (“[A] showing of individualized

suspicion is not a constitutional floor, below which a search must be presumed

unreasonable.”). Suspicionless searches have been upheld, for example, to protect

the country’s borders, United States v. Ramsey, 431 U.S. 606, 619, 97 S. Ct. 1972,

1980 (1977), to maintain order within prisons, Hudson v. Palmer, 468 U.S. 517,

527, 104 S. Ct. 3194, 3201 (1984), and to achieve certain administrative purposes,

New York v. Burger, 482 U.S. 691, 702-04, 107 S. Ct. 2636, 2643-44 (1987). In

these “special needs” cases, the Court has performed the traditional Fourth

Amendment analysis–balancing the interests of the state against the privacy

interests of the individual–only after finding that the search vindicated a “special

need” of government that goes beyond general law enforcement. See, e.g.,

Skinner, 489 U.S. at 619-20, 109 S. Ct. at 1414-15 (upholding nonconsensual

blood and urine tests of certain railroad employees).



                                           8
      Each circuit to address the question has upheld the constitutionality of DNA

profiling statutes, but the circuits have disagreed on whether to do so through the

special needs analysis or through the traditional balancing test. The Second,

Seventh, and Tenth Circuits have engaged in balancing only after finding that the

statute served a special need beyond general law enforcement. See Roe v.

Marcotte, 193 F.3d 72, 79 (2d Cir. 1999); Green v. Berge, 354 F.3d 675, 679 (7th

Cir. 2004); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1997). The Fourth,

Fifth, and Ninth Circuits have applied the traditional balancing test without finding

a special need. See Jones v. Murray, 962 F.2d 302, 306-07 (4th Cir. 1992);

Groceman v. United States Dep’t of Justice, 354 F.3d 411, 413 (5th Cir. 2004) (per

curiam); United States v. Kincade, 379 F.3d 813, 832 (9th Cir. 2004) (reaffirming

balancing approach of Rise v. Oregon, 59 F.3d 1556, 1559 (9th Cir. 1995)).

      Boulineau and Burney argue that the Supreme Court’s decisions in City of

Indianapolis v. Edmond, 531 U.S. 32 (2000), and Ferguson v. City of Charleston,

532 U.S. 67 (2001), require us to join the Second, Seventh and Tenth Circuits in

applying the special needs analysis. In contrast, the Commissioner argues that we

should follow the Fourth, Fifth, and Ninth Circuits and engage in traditional

balancing. This question of which analysis to apply is more than academic: in

Edmond and Ferguson, the Supreme Court limited the scope of the special needs



                                          9
exception by rejecting states’ arguments that suspicionless searches with stated

goals of drug rehabilitation and interdiction served special needs beyond general

law enforcement. See Edmond, 531 U.S. at 41-42, 121 S. Ct. at 454 (“Because the

primary purpose of the Indianapolis narcotics checkpoint program is to uncover

evidence of ordinary criminal wrongdoing, the program contravenes the Fourth

Amendment.”); Ferguson, 532 U.S. at 83-84, 121 S. Ct. at 1291-92 (deeming

unconstitutional searches with the broader goal of drug rehabilitation for women

because their immediate objective was general law enforcement). If we apply the

“special needs” analysis, Boulineau and Burney argue, we cannot uphold the

statute under these cases. Because we conclude that Knights, 534 U.S. 112, 122 S.

Ct. 587 (2001), not Ferguson and Edmond, is the applicable Supreme Court

precedent, we agree with the Commissioner.4

       Prisoners “do not forfeit all constitutional protections by reason of their

conviction and confinement in prison,” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.

Ct. 1861, 1877 (1979), but they do not enjoy the same Fourth Amendment rights as

free persons. See Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991) (noting

that a prisoner retains only those rights consistent “with his status as a prisoner or

with the legitimate penological objectives of the corrective system” (citations


       4
        Because we uphold the statute under a totality of the circumstances analysis, we do not
address whether it could satisfy a “special needs” analysis.

                                               10
omitted)). Prisoners have no Fourth Amendment rights against searches of their

prison cells, for example. Hudson v. Palmer, 468 U.S. 517, 526 (1984). They

must submit to visual body-cavity searches executed without individualized

suspicion. Bell, 441 U.S. at 558, 99 S. Ct. at 1884. They must undergo routine

tests of their blood, hair, urine, or saliva for drugs. Green v. Berge, 354 F.3d 675,

679 (7th Cir. 2004) (Easterbrook J., concurring). Because of these and other

limitations on prisoners’ Fourth Amendment rights, courts have recognized that

prisoners comprise a separate category of persons for purposes of the Amendment.

See, e.g., Jones, 962 F.2d at 307 n.2; see also, e.g., Green, 354 F.3d at 679

(Easterbrook, J., concurring).

      Ferguson and Edmond struck down suspicionless searches because they

vindicated no special need distinguishable from general law enforcement.

However, the searches they discussed were performed on free persons, not

incarcerated felons. Edmond, 531 U.S. at 40-41, 121 S. Ct. at 453-54 (police

searched motorists’ cars at roadside checkpoints in order to uncover “evidence of

ordinary criminal wrongdoing”); Ferguson, 532 U.S. at 82, 121 S. Ct. at 1290-91

(hospital personnel administered drug tests to certain pregnant woman and turned

over any positive results to the police). Neither case condemned suspicionless

searches of prisoners executed without a special need nor required us to apply the



                                          11
special needs analysis in every situation.

       After Ferguson and Edmond, the Supreme Court used the traditional

balancing test to evaluate warrantless searches performed on probationers, who,

like prisoners, have limited Fourth Amendment rights because of their relationship

with the state. In United States v. Knights, the Court applied the balancing test to

uphold a warrantless search of a probationer’s home. The search was conducted

for general law enforcement purposes only and was not based on a “special need.” 5

534 U.S. at 118-21, 122 S. Ct. at 591-92. Key to the Court’s ruling was Knights’

status as a probationer. Id. at 119, 122 S. Ct. at 591 (“Knights’ status as a

probationer informs both sides of the balance.”) Likening probation to

incarceration, the Court noted that probationers do not “enjoy the absolute liberty

to which every citizen is entitled.” Id. (citations omitted). Probationers are more

likely to violate the law than ordinary citizens, the Court concluded, and the state’s

“interest in apprehending violators of the criminal law, thereby protecting potential

victims of criminal enterprise, may therefore justifiably focus on probationers in a

way that it does not on the ordinary citizen.” Id. at 120-21, 122 S. Ct. at 592. The

Court explicitly rejected the argument that only searches of probationers serving a



       5
         Although Knights involved a search based on reasonable suspicion, the Court left open
the question of whether suspicionless searches of probationers are constitutional. Knights, 534
U.S. at 120 n.6.

                                               12
“special need” are constitutionally permissible. Id. at 117-18, 122 S. Ct. at 590-91.

       If the Supreme Court approves dispensing with the special needs analysis for

probationers, we are persuaded that we may take a similar approach in cases

involving prisoners, who enjoy less Fourth Amendment rights.6 See Green, 354

F.3d at 679-80 (Easterbrook, J., concurring) (arguing that the rights of prisoners,

probationers, convicted but released felons, and free persons represent a continuum

of Fourth Amendment liberties and may be subjected to different Fourth

Amendment analyses). As such, Ferguson and Edmond, while consistent with our

ruling, do not apply here. Instead, we follow Knights and apply a traditional

balancing test.

       Utilizing the Knights approach, we next address whether the statute is

reasonable under a totality of the circumstances analysis. We employ a balancing

test, weighing the degree to which the search intrudes on an individual’s privacy

against the degree to which it promotes a legitimate governmental interest. See


       6
         Boulineau and Burney suggest that our decision in Fortner v. Thomas, 983 F.2d 1024,
1030 (11th Cir.), requires us to conclude that prisoners enjoy the same rights to bodily privacy as
free persons unless the statutorily mandated intrusion furthers a legitimate penological interest,
such as institutional security. Although we concluded in Fortner that prisoners retain a right to
bodily privacy that may be violated if female prison guards can view male prisoners in states of
nudity, we held that this right was limited and noted that prisoners’ rights to privacy are
evaluated on a case-by-case basis. 983 F.2d at 1030. We continue to hold that prisoners, unlike
free persons, retain only those rights that are consistent with their incarceration. See Harris, 941
F.2d at 1513. Because we rely on Knights to apply the balancing test to searches of prisoners,
we do not need to address whether the DNA profiling statute requires a search that is justified by
penal concerns.

                                                 13
Knights, 534 U.S. at 118-19, 122 S. Ct. 591. The Fourth Circuit applied the

totality of the circumstances analysis and found a similar statute to be a reasonable

intrusion into convicted felons’ privacy. See Jones, 962 F.2d at 306-08. Because

we believe that Georgia’s legitimate interest in creating a permanent identification

record of convicted felons for law enforcement purposes outweighs the minor

intrusion involved in taking prisoners’ saliva samples and storing their DNA

profiles, given prisoners’ reduced expectation of privacy in their identities, we

adopt the reasoning in Jones and hold that the statute does not violate the Fourth

Amendment. See 962 F.2d at 306-08.

      We also apply the balancing test to evaluate the reasonableness of the

statutorily required search under the search and seizure provision of the Georgia

Constitution. See G A. C ONST. art. I, § 1, ¶ 13; City of East Point v. Smith, 258 Ga.

111, 112 (1988) (evaluating reasonableness of a search under the Georgia

Constitution by looking to the Fourth Amendment cases as persuasive authority

and applying the balancing test); Wells v. State, 348 S.E.2d 681, 683 (Ga. App.

1986) (noting that Georgia adopted the “totality of the circumstances” test in

evaluating reasonableness of searches under its Constitution and that the standard

under the federal and state Constitutions are the same). For the same reasons we

adopt in our Fourth Amendment analysis, we hold that the statute does not violate



                                          14
Boulineau and Burney’s rights to be free from unreasonable search and seizures

under the Georgia Constitution.

      B.     Right to Privacy

      Boulineau and Burney contend that the district court erred in concluding that

the forcible extraction of their DNA does not violate their rights to bodily privacy

as guaranteed by the United States and Georgia Constitutions. Because they

explicitly waive the argument that they have an independent right to privacy in

their identities, we address only the bodily intrusion caused by the statute.

             1.     The United States Constitution

      The United States Constitution does not expressly guarantee a right to

privacy, but the Supreme Court has held that a right to privacy does exist within

the liberty component of the Fourteenth Amendment. See Roe v. Wade, 410 U.S.

113, 152-53, 93 S. Ct. 705, 726-27 (1973). To date, the Supreme Court has

recognized two types of interests protected by the right to privacy. First, the right

to privacy guards an individual’s interest in avoiding disclosure of certain personal

matters. Second, it protects an individual’s personal autonomy in making certain

important decisions, such as those involving marriage, contraception, and

procreation. Whalen v. Roe, 429 U.S. 589, 598-99, 97 S. Ct. 869, 876-77 (1977);

Carey v. Population Servs. Int’l, 431 U.S. 678, 684, 97 S. Ct. 2010, 2016 (1977);



                                          15
Harris v. Thigpen, 941 F.2d 1495, 1513 n.26 (11th Cir. 1991).

      Boulineau and Burney argue that our decision in Fortner v. Thomas, 983

F.2d 1024 (11th Cir. 1993), establishes that prisoners enjoy a right to bodily

privacy that is infringed by the compelled extraction of their saliva. In Fortner, we

held that male prisoners’ rights to bodily privacy may be violated by allowing

female correctional officers to view them in states of nudity. Id. at 1029-30. We

explained, “[M]ost people have a special sense of privacy in their genitals, and

involuntary exposure of them in the presence of people of the other sex may be

especially demeaning and humiliating.” Id. at 1030 (citations omitted). We thus

based our holding on the Supreme Court’s recognition that people have a protected

privacy interest in avoiding disclosure of certain personal matters–there, the

exposure of their naked bodies. See id. at 1030. We did not consider prisoners’

right to privacy against other types of governmental intrusions, and Fortner cannot

be read to expand the right to privacy to interests other those involving certain

compelled nudity.

        The statute no doubt requires the disclosure of prisoners’ personal DNA

information, albeit to a limited audience for limited, law enforcement purposes.

However, Boulineau and Burney explicitly limit their privacy challenge to the

bodily intrusion caused by the statute:



                                          16
                Boulineau and Burney are not trying to hide who they
                are, or to prevent the state from keeping a record of
                lawfully obtained DNA samples. Instead, they seek to
                prevent illegal searches of their persons and to prevent
                the state from using the fruits of these illegal searches in
                hypothetical future criminal investigations.

Br. of Appellants Paul Boulineau and John Burney at 34. The extraction of saliva

itself does not implicate their interests in avoiding disclosure of information, but

rather “the right of the individual to be free in his private affairs from

governmental . . . intrusion.” Whalen v. Roe, 429 U.S. at 599 n.24, 97 S. Ct. at 876

(1977) (citations omitted). Fortner does not address prisoners’ bodily privacy in

this context.

      Prisoners do “retain certain certain fundamental rights to privacy,” and

Fortner did not foreclose the possibility that prisoners enjoy other rights to bodily

privacy in our circuit. 983 F.2d at 1029-30 (citations omitted). Nonetheless, we

conclude that the right Boulineau and Burney claim here is neither “fundamental”

nor “implicit in the concept of ordered liberty.” See Roe, 410 U.S. at 152, 93 S.

Ct. at 726. As we discussed supra section II.A, prisoners routinely undergo drug

testing, which requires a bodily intrusion similar to the intrusion here. This and the

other restrictions on their freedom which are inherent to their status as prisoners

indicate that the right Boulineau and Burney claim here is not protected by the




                                             17
right to privacy.7

       2. The Georgia Constitution

       The Georgia Constitution gives its citizens a right to privacy that is broader

than that recognized by the United States Constitution. Georgia considers privacy

a fundamental right, and it requires that courts carefully scrutinize cases in which

an individual’s privacy may have been infringed. King v. Georgia, 272 Ga. 788,

789 (2000). The right to privacy protects matters that a reasonable person would

consider private. Id. at 790.

       A person’s privacy interest is not inviolable, however. The state may

constitutionally intrude upon a protected privacy interest “pursuant to a statute

which effectuates a compelling state interest and which is narrowly tailored to

promote only that interest.” Law enforcement constitutes a compelling state

interest. Id. at 791.

       In spite of their incarceration, Boulineau and Burney retain a right to bodily


       7
         Citing Turney v. Safley, 482 U.S. 78, 97 (1987), Fortner v. Thomas, 983 F.2d 1024,
1030 (11th Cir. 1993), and several other cases from other circuits, Boulineau and Burney argue
that the district court erred in failing to find a legitimate penological purpose behind the statute
before authorizing the required intrusion into their privacy. They contend that absent
individualized suspicion, “the only applicable rationale [for invading any retained privacy rights
of prisoners] is . . . for legitimate penological purposes.” The cases do not stand for this
proposition. Turner addresses prison regulations, not statutes, 482 U.S. at 89, and it leaves intact
the long standing rule that prisoners do not enjoy constitutional rights “inconsistent with [their]
status as . . . prisoner[s].” Id. at 94; see Hudson, 468 U.S. at 523. Fortner, as discussed
previously, is inapposite. The other cases cited by Bouliney and Bourney are Fourth
Amendment cases involving free persons.

                                                 18
privacy under the Georgia Constitution. Zant v. Prevatte, 248 Ga. 832, 834 (1982)

(prisoners retain the right to bodily privacy). The extraction of saliva required by

the statute implicates this right. However, the statute promotes law enforcement, a

compelling state interest, King, 272 Ga. at 791, and it is narrowly tailored to

promote law enforcement. The statute requires DNA profiling on incarcerated

felons, O.C.G.A. § 24-4-60, a limited population. Further, it forbids the release of

felons’ DNA profiles except for law enforcement purposes. O.C.G.A. § 24-4-63.

Thus, the forcible extraction of saliva does not violate Boulineau and Burney’s

rights to privacy under the Georgia Constitution.

                                III. CONCLUSION

       We conclude the statute does not violate Boulineau and Burney’s rights

against unreasonable searches and seizures or their rights to bodily privacy under

the United States or Georgia Constitutions. As such, we AFFIRM the order of the

district court.




                                          19