In the

United States Court of Appeals

For the Seventh Circuit

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Nos. 01-4080, 01-4081 & 02-1346

NORMAN C. GREEN, JR., DONALD LEE,

GLENN TURNER, and DENNIS E. JONES-EL,

Plaintiffs-Appellants,

v.

GERALD A. BERGE and JAMES E. DOYLE,

ATTORNEY GENERAL,

Defendants-Appellees.

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Appeals from the United States District Court

for the Western District of Wisconsin.

No. 01-C-314—Barbara B. Crabb, Chief Judge.

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ARGUED NOVEMBER 4, 2003—DECIDED JANUARY 9, 2004

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Before EASTERBROOK, ROVNER, and EVANS, Circuit

Judges.

EVANS, Circuit Judge. The four plaintiffs—all felons

serving prison terms at Wisconsin’s Supermax penitentiary—filed this suit challenging a Wisconsin law which

compels them to submit a deoxyribonucleic acid (DNA)

sample for analysis and storage in a data bank. The plaintiffs contend that taking samples of their DNA pursuant to

the law is an unconstitutional search and seizure in violation of the Fourth Amendment of the United States
2 Nos. 01-4080, 01-4081 & 02-1346

Constitution. The district court dismissed the complaint

under 28 U.S.C. § 1915A, and today we resolve the plaintiffs’ appeal.

Except for identical twins, no two people have the same

DNA. See Thomas M. Fleming, Annotation, “Admissibility

of DNA Identification Evidence,” 84 A.L.R.4th 313 at § 2(b)

(1991). In addition, an individual’s DNA is the same in

every nucleated cell in his body. Thus, a DNA analysis

makes the identification of a specific person “to the practical

exclusion of all others.” Id.

The Wisconsin law, § 165.76 et seq., was passed in 1993.

In its original form, only prisoners convicted of certain

offenses were required to give DNA samples for analysis. In

1999, the law was amended to require that all persons

convicted of felonies in Wisconsin (and those who were in

prison at the time) provide DNA samples for analysis and

storage in the state’s data bank.

The statutory scheme provides standards for laboratory

testing of the DNA samples. It contains a confidentiality

provision, and it provides penalties for the unlawful dissemination of information obtained under the statute. The

law also provides that if an individual’s conviction or adjudication has been reversed, set aside, or vacated, the

State’s Crime Laboratory (where the data is held) must

“purge all records and identifiable information in the data

bank pertaining to the person and destroy all samples from

the person.”

All 50 states and the federal government have

adopted DNA collection and data bank storage statutes

that, although not identical, are similar to the one in

Wisconsin. See Robin Cheryl Miller, Annotation, “Validity,

Construction, and Operation of State DNA Database

Statutes,” 76 A.L.R.5th 239 (2000). Challenges to these

statutes as a whole and to their subparts have almost

uniformly been unsuccessful. Thus, the plaintiffs in this
Nos. 01-4080, 01-4081 & 02-1346 3

suit face a decidedly uphill struggle on their one claim that

their constitutional rights were violated when DNA was

extracted from them in the absence of a warrant, probable

cause, or an individualized and reasonable suspicion to

believe they committed a crime.

Although the taking of a DNA sample is clearly a search,

the Fourth Amendment does not proscribe all searches, only

those that are unreasonable. In some instances where a

search is not made pursuant to a warrant supported by

probable cause, it may nonetheless be reasonable if it falls

within an exception to the warrant requirement and is

supported by “some quantum of individualized suspicion.”

United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96

S. Ct. 3074, 49 L. Ed. 2d 1116 (1976). But even individualized suspicion is not always necessary to support a finding

that a search is reasonable. See id. at 560-61; see also

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602,

624 (1989) (“individualized suspicion is not a constitutional

floor, below which a search must be presumed unreasonable”); Nat’l Treasury Employees Union v. Von Raab, 489

U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989)

(“neither a warrant nor probable cause, nor, indeed, any

measure of individualized suspicion, is an indispensable

component of reasonableness in every circumstance”).

Although the United States Supreme Court has yet to

address the validity of DNA collection statutes under the

Fourth Amendment, as we just noted, state and federal

courts that have are almost unanimous in holding that

these statutes do not violate the Fourth Amendment. See

cases cited in the persuasive opinion of Magistrate Judge

Gorenstein in Nicholas v. Goord, 2003 WL 256774 (S.D.N.Y.

2003). But see United States v. Kincade, 345 F.3d 1095 (9th

Cir. 2003) (holding that forced blood extractions from

federal parolees pursuant to the federal DNA Analysis

Backlog Elimination Act violates the Fourth Amendment in

the absence of individualized suspicion).
4 Nos. 01-4080, 01-4081 & 02-1346

Courts uphold these DNA collection statutes because the

government interest in obtaining reliable DNA identification evidence for storage in a database and possible use in

solving past and future crimes outweighs the limited privacy interests that prisoners retain. Also, courts generally

conclude that the collection of biological samples is only a

minimal intrusion on one’s personal physical integrity.

These courts find that the government has a special need in

obtaining identity DNA samples. The Tenth Circuit Court

of Appeals recently summarized the “special need” met by

the federal DNA Act:

The DNA Act, while implicating the Fourth

Amendment, 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.

United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.

2003).

In Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis.

1996), Judge (now Chief Judge) Crabb succinctly summarized the “special needs” line of cases that permit warrantless searches without individualized suspicion in a DNA

collection case:

Like administrative searches, in which the warrant and

probable cause showing are replaced by the requirement of showing a neutral plan for execution, a compelling governmental need, the absence of less restrictive

alternatives and reduced privacy rights, see Camara v.

Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18

L.Ed.2d 930 (1967), special needs searches adopt a

balancing of interests approach. Special needs searches

have been held to include drug testing of railway

executives, Skinner v. Railway Labor Executives’ Ass’n,

489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989),
Nos. 01-4080, 01-4081 & 02-1346 5

customs officers, National Treasury Employees Union v.

Von Raab, 489 U.S. 656 (1989), probationers’ homes,

Griffin, 483 U.S. at 868, 107 S.Ct. at 3165-66, and high

school students participating in athletics, Vernonia

School District 47 v. Acton, ___ U.S. ___, 115 S.Ct. 2386,

132 L.Ed.2d 564 (1995). In determining the reasonableness of these searches, the Supreme Court has considered the governmental interest involved, the nature of

the intrusion, the privacy expectations of the object of

the search and, to some extent, the manner in which

the search is carried out. In Griffin, 483 U.S. at 868,

107 S.Ct. At 3165-66, for example, the Court noted that

the warrantless search of the probationer’s home had

been carried out pursuant to valid regulations promulgated by the state. Although the state’s DNA testing of

inmates is ultimately for a law enforcement goal, it

seems to fit within the special needs analysis the Court

has developed for drug testing and searches of probationers’ homes, since it is not undertaken for the investigation of a specific crime.

934 F. Supp. at 1050-51. We agree with and adopt the views

expressed by Chief Judge Crabb.

In arguing against the constitutionality of the Wisconsin

law, the plaintiffs rely heavily on City of Indianapolis v.

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

Charleston, 532 U.S. 67 (2001). They insist that the combined impact of these cases undermines all of the decisions

upholding various DNA statutes because they can no longer

be viewed as reasonable under the Fourth Amendment if

their primary purpose is to assist law enforcement. We

disagree.

In City of Indianapolis v. Edmond, the city instituted a

motor vehicle checkpoint program whose primary purpose

was interdicting illegal narcotics trafficking. The program

allowed police to randomly stop motorists on public high-
6 Nos. 01-4080, 01-4081 & 02-1346

ways without a warrant and without probable cause. While

checking the motorists for compliance with license and

registration requirements (as well as intoxication), police

used a drug-sniffing dog in hopes of finding evidence of

narcotics possession on the driver or in the car.

An important distinction between our case and Edmond

is that the primary purpose of the Indianapolis checkpoint program was to see if a driver was then and there

engaged in illegal drug activity. The primary purpose of the

Wisconsin DNA law, on the other hand, is not to search for

“evidence” of criminal wrongdoing. Its purpose is to obtain

reliable proof of a felon’s identity. Edmond says much about

indiscriminate motor vehicle roadblocks and checkpoints

but nothing about safe, nondiscriminatory collection of DNA

samples from lawfully incarcerated felons.

Ferguson also provides no help for our plaintiffs. The

issue there was whether the state’s “interest in using the

threat of criminal sanctions to deter pregnant women from

using cocaine can justify a departure from the general rule

that an official nonconsensual search is unconstitutional if

not authorized by a valid warrant.” 532 U.S. at 70. The case

involved a state hospital program whereby staff, without

the consent of its patients, performed drug scans of the

urine of pregnant women for the purpose of detecting the

presence of cocaine for possible criminal prosecution. Positive test results were reported to police.

Ferguson drew a distinction from other cases upholding

warrantless and suspicionless drug tests of employees and

students under the “special needs” doctrine.

In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of

the test results, and there were protections against the

dissemination of the results to third parties. The use of

an adverse test result to disqualify one from eligibility
Nos. 01-4080, 01-4081 & 02-1346 7

for a particular benefit, such as a promotion or an

opportunity to participate in an extracurricular activity,

involves a less serious intrusion on privacy than the

unauthorized dissemination of such results to third

parties. The reasonable expectation of privacy enjoyed

by the typical patient undergoing diagnostic tests in a

hospital is that the results of those tests will not be

shared with nonmedical personnel without her consent.

532 U.S. at 78.

In contrast, the plaintiffs here had no misunderstanding

about the purpose of the DNA test or the potential use of

the test results. There are built-in statutory proscriptions

against the unauthorized dissemination of test results to

third parties. The intrusion on the plaintiffs’ limited privacy

interest is far less than that on unsuspecting pregnant

women in a hospital but otherwise free of state custody.

Wisconsin’s DNA collection statute is, we think, narrowly

drawn, and it serves an important state interest. Those

inmates subject to testing because they are in custody, are

already “seized,” and given that DNA is the most reliable

evidence of identification—stronger even than fingerprints

or photographs—we see no Fourth Amendment impediments to collecting DNA samples from them pursuant to the

Wisconsin law. The Wisconsin law withstands constitutional attack under the firmly entrenched “special needs”

doctrine.

Because we have never addressed this issue, and the

plaintiffs’ appeal for that reason is not frivolous, we decline

to add an additional strike to their record pursuant to the

Prison Litigation Reform Act. A strike, however, was

appropriately recorded by the district court as the plaintiffs’

complaint did not state a claim for which relief could be

granted.

The judgment of the district court is AFFIRMED.
8 Nos. 01-4080, 01-4081 & 02-1346

EASTERBROOK, Circuit Judge, concurring. While joining

the court’s opinion without reservation, I offer some additional observations.

Courts that have dealt with constitutional challenges to

DNA-collection statutes frequently have lumped together

all persons subject to these laws. Yet there are at least four

major categories, potentially subject to differing legal

analysis.

Prisoners make up the first category. Their privacy

interests are extinguished by the judgments placing them

in custody. As a result, “the Fourth Amendment proscription against unreasonable searches does not apply within

the confines of the prison cell.” Hudson v. Palmer, 468 U.S.

517, 526 (1984). See also, e.g., Johnson v. Phelan, 69 F.3d

144 (7th Cir. 1995). Testing prisoners’ blood, urine, saliva,

or hair for drugs is routine and does not require individual

suspicion. DNA is present in all living cells, so it may be

obtained from any of the blood or other samples regularly

collected from prisoners. Indeed, prisons may conduct

body-cavity searches without suspicion, see Bell v. Wolfish,

441 U.S. 520 (1979), though nothing of the kind would be

allowed for free persons. Collecting DNA is much less

intrusive. Prisons, moreover, have a constitutional duty to

attend to inmates’ medical needs, and the discharge of this

duty requires them to learn details about the inmates’

medical conditions. That will entail the drawing of blood

(how else could the prison learn whether an inmate is

diabetic?), and like other specimens the inmates’ blood may

be put to multiple uses, including preservation of DNA, for

the fourth amendment does not control how properly

collected information is deployed. Use of DNA is in this

respect no different from use of a fingerprint; only the

method of obtaining the information differs, and for prisoners that is a distinction without importance.

Persons on conditional release—parole, probation, supervised release, and the like—are the second category. They
Nos. 01-4080, 01-4081 & 02-1346 9

have acquired additional liberty but remain subject to

substantial controls. People who object to the conditions of

release before the end of their sentences may say no and

remain in prison; if they say yes, they have consented to the

conditions. See United States v. Cranley, No. 03-1908 (7th

Cir. Nov. 19, 2003). (Society may restore a felon’s freedom

in increments; it does not face an all-or-none choice.) One

common condition of release is submission to tests for

drugs, without the need for person-specific suspicion. DNA

may be extracted from samples obtained through these tests

without any incremental invasion of privacy. And if such an

incremental invasion is required: well, it is beyond dispute

that conditions of release related to enforcing the criminal

laws are valid, because refraining from new crime is one

vital condition of parole and like states. Thus parolees may

be required to submit to searches of their homes without

probable cause, see Griffin v. Wisconsin, 483 U.S. 868

(1987); United States v. Knights, 534 U.S. 112 (2001), to

report regularly to government offices to give accounts of

their activities, to get approval for new employment or

living arrangements, and so on. DNA collection is less

invasive than a search of one’s home, and as information

from DNA may be very helpful in solving crimes (and thus

enforcing a condition of release), there is no problem under

the fourth amendment.

Felons whose terms have expired are the third category.

Established criminality may be the basis of legal obligations

that differ from those of the general population. “A broad

range of choices that might infringe constitutional rights in

free society fall within the expected conditions . . . of those

who have suffered a lawful conviction.” McKune v. Lile, 536

U.S. 24, 36 (2002). One need only think of Megan’s Law and

its variations across the nation. See Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003). Felons

likewise are subject to limits on ownership of weapons and

participation in certain occupations (including law). Greater
10 Nos. 01-4080, 01-4081 & 02-1346

post-release restrictions on those with a known criminal

propensity make it possible to curtail the time felons must

linger in prison. Collecting felons’ DNA, like collecting their

fingerprints, handwriting exemplars, and other information

that may help solve future crimes (and thus improve the

deterrent force of the criminal sanction) is rationally related

to the criminal conviction. (That collection of Felon A’s DNA

may help Accused B show his innocence of a charge is a

benefit into the bargain.)

Those who have never been convicted of a felony are

the last distinct category. What is “reasonable” under the

fourth amendment for a person on conditional release, or a

felon, may be unreasonable for the general population. Just

as parolees’ homes may be searched without a warrant or

probable cause, while both are required to search a free

person’s home, so it may be that collection of DNA samples

from the general population would require person-specific

cause—or at least a “special need,” whatever the meaning

of that phrase in recent decisions turns out to be. See

Indianapolis v. Edmond, 531 U.S. 32 (2000); Ferguson v.

City of Charleston, 532 U.S. 67 (2001). The majority in

United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003),

which held that the DNA Analysis Backlog Elimination Act

of 2000, 42 U.S.C. §14135a, violates the fourth amendment,

made a fundamental error when it applied the “special

need” approach of Edmond and Ferguson to persons on

supervised release from criminal sentences that have yet to

expire. That confuses the fourth category with the second.

Knights, which held that conditions of supervised release

may be enforced without regard to whether they would be

“reasonable” as applied to the general population, was

issued after Edmond and Ferguson; the Justices evidently

perceive that these decisions cover different domains.

This appeal does not present the question whether DNA

could be collected forcibly from the general population, and
Nos. 01-4080, 01-4081 & 02-1346 11

I understand the court’s reference to Edmond and Ferguson

to mean no more than that these decisions are compatible

with collecting and preserving DNA from persons in the

first two categories, and likely from those in the third.

There will be time enough to address the fourth if and when

a more general statute about the collection and use of

medical information should be enacted.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-9-04