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United States Court of Appeals
Fifth Circuit
F I L E D
January 6, 2004
In the
Charles R. Fulbruge III
United States Court of Appeals
Clerk
for the Fifth Circuit
_______________
m 02-10810
Summary Calendar
_______________
JEFFREY DEAN GROCEMAN AND BRADLEY WILLIAM GROCEMAN,
Plaintiffs-Appellants,
VERSUS
UNITED STATES DEPARTMENT OF JUSTICE;
UNITED STATES BUREAU OF PRISONS;
FEDERAL BUREAU OF INVESTIGATION,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:01-CV-1619-G
_________________________
Before SMITH, DEMOSS, and STEWART,
tention of samples of their DNA pursuant to
Circuit Judges.
the DNA Analysis Backlog Elimination Act of
2000 (the "DNA Act"), 42 U.S.C. 壯 14135-
PER CURIAM:
14135e (2001 Supp.) The DNA Act calls for
"collection and use of DNA identification in-
Jeffrey Groceman and Bradley Groceman
formation from certain Federal offenders,"
are incarcerated pursuant to convictions for
including persons such as these plaintiffs, who
armed bank robbery and conspiracy to commit
were convicted of the qualifying offense of
armed bank robbery. They sued three federal
bank robbery. 42 U.S.C. 14135a(d)(1)(E).
entities to enjoin them from collection and re-
DNA samples collected under the statute are

intended for inclusion in the Combined DNA
in using DNA to investigate crime.1 Id. at
Index System ("CODIS"), a database main-
421.
tained by the FBI.
Valasquez is in accord with both reason and
Plaintiffs alleged that the collection of the
Supreme Court precedent. Courts may con-
DNA sample was a violation of their Fourth
Amendment right against unreasonable search-
es and seizures. The district court dismissed
1
the complaint under F
In Valasquez, 329 F.3d at 421, we noted that,
ED. R. CIV. P. 12(b)(6)
at the time of that decision, every circuit court to
for failure to state a claim. Subsequently,
consider the issue of DNA collection from inmates
several DNA samples were taken from plain-
under similar statutes had found that they did not
tiffs for inclusion in the CODIS database.
violate the Fourth Amendment. The Ninth Circuit
has since diverged in its assessment of the issue,
A rule 12(b)(6) order is reviewed de novo.
holding that inmates have a reasonable expectation
A court may not dismiss a complaint pursuant
of privacy against the collection of DNA samples
to rule 12(b)(6) "unless it appears beyond
and that the DNA Act does not fulfill a non-crime
doubt that the plaintiff can prove no set of
prevention need to satisfy the "special needs"
facts in support of his claim which would en-
exception to the warrant requirement. United
title him to relief." Conley v. Gibsom, 355
States v. Kincade, 345 F.3d 1095, 1104-13 (9th
U.S. 41, 45-46 (1957).
Cir. 2003) (applying "special needs" exception to
warrant requirement and holding that "immediate
The extraction of blood from a prisoner to
purpose" of DNA Act is law enforcement).
collect a DNA sample implicates Fourth
The Tenth and Second Circuits have ruled that
Amendment rights.1 Nonetheless, collection of
although inmates have a reasonable expectation of
DNA from prisoners under the DNA Act is
privacy against collection of DNA samples, the
reasonable under the Fourth Amendment. Our
"special needs" exception to the warrant require-
decision is informed by Valasquez v. Woods,
ment is satisfied by DNA collection statutes. Unit-
329 F.3d 420 (5th Cir. 2003) (per curiam),
ed States v. Kimler, 335 F.3d 1146, 1146 (10th
finding a similar Texas DNA collection pro-
Cir. 2003), cert. denied, 2003 U.S. LEXIS 9142
gram constitutional. In Valasquez, we ac-
(U.S. Dec. 8, 2003) (No. 03-7285); Roe v. Mar-
cepted the reasoning that although collection
cotte, 193 F.3d 72, 78-82 (2d Cir. 1999). The
of DNA samples from prisoners implicates
Fourth Circuit maintains, as we did in Valasquez,
Fourth Amendment concerns, such collections
that inmates do not have a reasonable expectation
are reasonable in light of an inmate's dimin-
of privacy against DNA collections similar to those
ished privacy rights, the minimal intrusion in-
described in the DNA Act. Jones v. Murray, 962
volved, and the legitimate government interest
F.2d 302, 306-07 (4th Cir. 1992) ("While we do
not accept even this small level of intrusion for free
persons without Fourth Amendment constraint . .
. the same protections do not hold true for those
lawfully confined to the custody of the state. As
with fingerprinting, therefore, we find that the
1 See Skinner v. Ry. Labor Executives Ass'n,
Fourth Amendment does not require an additional
489 U.S 602, 616 ("We have long recognized that
finding of individualized suspicion before blood
a `compelled intrusio[n] into the body for blood' .
can be taken from incarcerated felons for the
. . must be deemed a Fourth Amendment search.").
purpose of identifying them.") (citations omitted.).
2

sider the totality of circumstances, including a
person's status as an inmate or probationer, in
determining whether his reasonable expecta-
tion of privacy is outweighed by other factors.
See United States v. Knights, 534 U.S. 112,
119 (2001); see also Ohio v. Robinette, 519
U.S. 33, 39 (1996). Though, like fingerprint-
ing, collection of a DNA sample for purposes
of identification implicates the Fourth Amend-
ment, persons incarcerated after conviction
retain no constitutional privacy interest against
their correct identification. See United States
v. Sanders, 477 F.2d 112, 113 (5th Cir. 1973);
see also Jones v. Murray, 962 F.2d 302, 306
(4th Cir. 1992). The DNA Act, accordingly,
does not violate the Fourth Amendment, and
its application does not infringe these plain-
tiffs' constitutional rights.
The district court did not err in dismissing
the claim. The judgment is AFFIRMED.
3