10th Circuit Notes Split Re Proper Test for Evaluating Constitutionality of DNA Analysis Backlog Elimination Act

Per Banks v. U.S., --- F.3d ----, 2007 WL 1739692 (10th Cir. June 18, 2007):

Although much ink has been spilled on the Fourth-Amendment question we must address in this appeal-whether the DNA Analysis Backlog Elimination Act of 2000, as amended, passes constitutional muster under the Fourth Amendment-our sister circuits have taken different analytical routes to analyzing DNA-indexing statutes. While the Second and Seventh Circuits have applied a special-needs analysis, see Green v. Berge, 354 F.3d 675 (7th Cir.2004); Roe v. Marcotte, 193 F.3d 72 (2d Cir.1999), the Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and District of Columbia Circuits apply a reasonableness test informed by the totality of the circumstances, see United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir.2006); Johnson v. Quander, 440 F.3d 489, 496 (D.C.Cir.2006); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir.2005); Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir.2005); United States v. Kincade, 379 F.3d 813 (9th Cir.2004); Groceman v. U.S. Dep't of Justice, 354 F.3d 411 (5th Cir.2004); Jones v. Murray, 962 F.2d 302 (4th Cir.1992). Despite this initial disagreement, each of these circuit courts has arrived at the same conclusion: the federal DNA Act and its State law analogues survive Fourth-Amendment scrutiny.

Like the circuit split on which Fourth-Amendment test to apply, our own precedents are divided. In three successive opinions, this Court applied a totality-of-the-circumstances test to substantially similar DNA-indexing statutes; in each case, we ultimately concluded that the statutes did not violate the Fourth Amendment. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998) (citing Boling v. Romer, 101 F.3d 1336 (10th Cir.1996), with approval and upholding a State DNA-indexing statute under the Fourth Amendment's totality-of-the-circumstances test); Schlicher, 103 F.3d at 943 (same); Boling, 101 F.3d at 1339-40 (applying the totality-of-the-circumstances test and concluding that a State DNA-indexing statute is constitutional).

But in United States v. Kimler, 335 F.3d 1132 (10th Cir.2003), this Court upheld a federal DNA statute under a special-needs test. The Kimler Court held that “[t]he DNA Act ... is a reasonable search and seizure under the special needs exception to the Fourth Amendment's warrant requirement because the desire to build a DNA database goes beyond the ordinary law enforcement need.” Id. at 1146. Notably, Kimler neither explained why building a DNA database is a special need, nor applied a balancing test to determine whether this special need outweighed the defendant's right to privacy. See id. Moreover, Kimler cited Shaffer, Schlicher, and Boling-all Tenth Circuit cases that applied the totality-of-the-circumstances test to DNA-indexing statutes-for the proposition that the statute at issue was constitutional under the special-needs test.

There is no apparent rationalization for Kimler's break from our prior case law. Further, the fact that our prior precedents upheld State DNA-indexing statutes, as opposed to the federal statute challenged here, does not materially change our analysis concerning which Fourth-Amendment test to apply. Nor does the fact that the Plaintiffs here are on parole, supervised release, or probation, whereas the offenders in our prior cases were prisoners. See Padgett, 401 F.3d at 1279 (observing that “[i]f 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”). Thus, while we do not eliminate the possibility that the Act satisfies the special-needs test, we follow Shaffer, Schlicher, and Boling, all decided before Kimler, by applying the totality-of-the-circumstances test here.