N.D. Oklahoma Notes Circuit Split re Constitutional Test to Apply to DNA-Indexing Statutes
Per Banks v. Gonzalez, 415 F. Supp. 2d 1248 (N.D. Ok. Feb. 14, 2006):
. . . The following quotation from a Third Circuit opinion summarizes the circuit split among courts on this issue in the context of the DNA [Backlog Elimination] Act or similar statutes:
The courts of appeals that have addressed the constitutionality of the DNA Act or of similar state statutes, while unanimous in their decisions to uphold the statutes, are split as to whether to apply the Knights reasonableness standard or the Griffin special needs exception. The Fourth, Fifth and Ninth Circuit Courts of Appeals have utilized a reasonableness standard. See Jones v. Murray, 962 F.2d 302 (4th Cir.1992) (upholding Virginia DNA statute); Groceman v. United States, 354 F.3d 411 (5th Cir.2004) (relying on Knights to uphold the DNA Act); Rise v. Oregon, 59 F.3d 1556 (9th Cir.1995), and United States v. Kincade, 379 F.3d 813 (9th Cir.2004) (en banc, five judges endorsing the reasonableness standard; one, the special needs exception; and five dissenting). The Tenth Circuit Court of Appeals appears to be split. The court first analyzed the issue using a reasonableness analysis to uphold a Colorado DNA statute. See Boling v. Romer, 101 F.3d 1336 (10th Cir.1997 [sic] ) (principally citing Jones and Rise ). However, more recently, and without substantive analysis, the court relied on the special needs doctrine to uphold the DNA Act. See United States v. Kimler, 335 F.3d 1132 (10th Cir.2003). The Second and Seventh Circuit Courts of Appeals have employed the special needs exception. See Roe v. Marcotte, 193 F.3d 72 (2d Cir.1999) (upholding Connecticut DNA statute); Green v. Berge, 354 F.3d 675 (7th Cir.2004) (upholding Wisconsin DNA statute).
United States v. Sczubelek, 402 F.3d 175, 184 (3rd Cir.2005).
. . .
In addition to finding that the Knights test is supported by Tenth Circuit law, this Court has considered the reasons articulated by various circuits for applying each respective test. The Court agrees with the reasoning in those circuit cases holding that the Supreme Court's decision in Knights indicates the Supreme Court's willingness to apply a general reasonableness analysis to searches of probationers based on their diminished expectation of privacy, without requiring adherence to a special-needs analysis. See, e.g., Kincade, 379 F.3d at 832 (reasoning that Knights affirmed the possibility that “conditional releasees' diminished expectations of privacy may be sufficient to justify the judicial assessment of a parole or probation search's reasonableness outside the strictures of special needs analysis”). The Court further aligns itself with the reasoning in Kincade that “neither Edmond nor Ferguson condemns suspicionless searches of conditional releasees in the absence of a demonstrable need apart from law enforcement.” Id. (stating that Ferguson itself recognized a distinction between searches of conditional releasees and searches of the general public and laid a framework for a “sound analytic division between these two classes of suspicionless searches”). Accordingly, this Court finds that the Knights totality of the circumstances, or general balancing test, should apply to analysis of the 2004 Amendments. This decision is in accord with the recent trend among circuit courts. See United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir.2005); Padgett v. Donald, 401 F.3d 1273, 1278 (11th Cir.2005); United States v. Kincade, 379 F.3d 813, 832 (9th Cir.2004) (four judges voting to apply Knights reasonableness test). But see Nicholas v. Goord, 430 F.3d 652, 656 (2d Cir.2005) (applying “special needs” analysis because the court declined “to construe Knights as permitting us to apply a general balancing test to suspicionless searches”).