         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 November 16, 2004 Session

      STATE OF TENNESSEE v. BRUCE WARREN SCARBOROUGH

               Interlocutory Appeal from the Criminal Court for Knox County
                          No. 75589    Mary Beth Leibowitz, Judge



                      No. E2004-01332-CCA-R9-CD - Filed June 2, 2005


The appellant, Bruce Warren Scarborough, was charged in the Knox County Criminal Court with
four counts of aggravated rape. He filed a motion to suppress DNA evidence linking him to the
crimes, and the trial court denied the motion. From the trial court’s order, the appellant now brings
this interlocutory appeal, arguing that the DNA evidence was obtained in violation of his right to be
free from unreasonable searches and seizures as provided by the Fourth Amendment to the United
States Constitution and Article I, Section 7 of the Tennessee Constitution. Upon review of the
record and the parties’ briefs, we affirm the judgment of the trial court.

   Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and David
G. Hayes, JJ., joined.

Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender,
Knoxville, Tennessee, for the appellant, Bruce Warren Scarborough.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Randall Eugene Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

        This case relates to the victim’s being raped repeatedly in her apartment on March 29, 1997.
The record reflects that about 5:00 a.m. on March 29, the victim awoke to find duct tape over her
eyes and a man assaulting her. The attacker raped the victim vaginally and anally, forced her to
perform fellatio, and performed cunnilingus on her. The victim went to a hospital and rape kit
testing was performed.
        In an unrelated case, the appellant pled guilty to aggravated burglary, theft, and sexual battery
in the Knox County Criminal Court on March 10, 1999. The trial court sentenced him to an effective
sentence of fifteen years in the Department of Correction. On April 22, 1999, a nurse at Brushy
Mountain State Prison collected a sample of the appellant’s blood pursuant to Tennessee Code
Annotated section 40-35-321(b), which provides that defendants convicted of certain sexual offenses
must provide a biological specimen for DNA analysis. On June 27, 2002, the Tennessee Bureau of
Investigation (TBI) sent a letter to a Knoxville detective, informing him that the appellant’s DNA
matched DNA from semen in the victim’s rape kit. The letter also requested a second blood sample
from the appellant. Based on the letter, the detective obtained a search warrant, and a second blood
sample was obtained. Testing revealed that DNA from the appellant’s second blood sample also
matched evidence from the victim’s rape kit. The state charged the appellant with four counts of
aggravated rape, a Class A felony, against the victim.

        On November 4, 2003, the appellant filed a motion to suppress the DNA evidence, arguing
that the first blood sample was taken in violation of his right to be free from unreasonable searches
and seizures in the Fourth Amendment to the United States Constitution and Article I, Section 7 of
the Tennessee Constitution and that he did not consent to giving the sample. The appellant also
argued that the second blood sample was fruit of the poisonous tree. At a hearing on the motion,
Cleo Charlene Smith, a registered nurse, testified that she worked for Brushy Mountain State Prison
and performed health screenings on new inmates. Smith stated that when a prisoner first arrived at
the prison, she would question him about his medical history and collect a blood sample. According
to Ms. Smith, the purpose for collecting the blood sample was to obtain a general health assessment
about the prisoner and perform DNA testing. Before collecting the sample, Ms. Smith would explain
the purpose of collecting the blood to the prisoner and the prisoner had to give his consent. A
prisoner could refuse to give a blood sample, but he would not be eligible for parole and would have
to serve his sentence day for day if he refused. Ms. Smith said that on April 22, 1999, she explained
the purpose of the blood draw to the appellant, that he signed a consent form, and that she collected
a blood sample from him. The appellant argued at the hearing that the taking of his blood constituted
a warrantless search and violated his right against unreasonable searches and seizures. The appellant
also argued that he did not consent to giving the sample and, in the alternative, that his consent was
coerced. After the hearing, the trial court denied the appellant’s motion to suppress, concluding that
he had consented to giving the sample. The trial court granted the appellant’s motion for an
interlocutory appeal of its order pursuant to Tenn. R. App. P. 9. We likewise granted the appellant’s
application in this court.

                                             II. Analysis

        The appellant’s argument challenges the constitutionality of Tennessee Code Annotated
section 40-35-321(b), which provides, in pertinent part, as follows:

                        When a court sentences a person convicted of violating or
                attempting to violate § 39-13-502 [(aggravated rape)], § 39-13-503
                [(rape)], § 39-13-504 [(aggravated sexual battery)], § 39-13-505


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                  [(sexual battery)], § 39-13-522 [(rape of a child)] or § 39-15-302
                  [(incest)], . . . it shall order the person to provide a biological
                  specimen for the purpose of DNA analysis . . . . The biological
                  specimen shall be forwarded by the approved agency or entity
                  collecting such specimen to the Tennessee bureau of investigation
                  which shall maintain it as provided in § 38-6-113. The court shall
                  make the providing of such a specimen a condition of probation or
                  community correction if either is granted.

Both the Fourth Amendment to the United States Constitution and Article I, Section 7 of the
Tennessee Constitution provide protection for citizens against “unreasonable searches and seizures.”1
Generally, a warrantless search is considered presumptively unreasonable and, thus, violative of
constitutional protections. However, searches without a warrant may be executed under certain
conditions. For example, police officers may execute a warrantless search incident to a lawful arrest.
Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034 (1969). Officers may also conduct a
warrantless search if an individual freely and voluntarily gives consent for the search. State v.
McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983).

        The first question we must address is whether the drawing of an individual’s blood for
physiological testing constitutes a search that would implicate Fourth Amendment concerns. The
United States Supreme Court and this court have held that it does. See Skinner v. Railway Labor
Executives’ Ass’n, 489 U.S. 602, 616, 109 S. Ct. 1402, 1412-13 (1989) (stating that the collection
of a person’s blood for alcohol content analysis “must be deemed a Fourth Amendment search”);
State v. Blackwood, 713 S.W.2d 677, 679 (Tenn. Crim. App. 1986) (stating that “[i]ntrusions into
the human body and the withdrawal of blood for the testing of its alcohol content has been held to
be subject to the constraints of the Fourth Amendment”). Next, we must determine whether the
collection of a prisoner’s blood without a warrant and for use in a DNA database is reasonable or
creates another exception to the warrant requirement.

        In analyzing the reasonableness of such a search, some courts have used a traditional
balancing test, weighing an individual’s privacy interest against the government’s interests in
pursuing the search. See State v. Knights, 534 U.S. 112, 118-19, 122 S. Ct. 587, 591 (2001).
Factors a court should consider in this reasonableness inquiry include “the strengths of the plaintiff’s
privacy interest, the nature and scope of the intrusion, and the government interest at stake.”
Nicholas v. Goord, 2004 U.S. Dist. Lexis 11708 at *16 (S.D.N.Y. 2004). Using this balancing test,
courts from the fourth, ninth, and tenth circuits and many state courts have concluded that blood
drawn from a prisoner without a warrant and used in a DNA database does not constitute an
unreasonable search. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir. 1998); Rise v. Oregon,


         1
            In State v. Downey, 945 S.W .2d 102, 106 (Tenn. 1997) (citation omitted), our supreme court noted that
“‘article I, section 7 is identical in intent and purpose with the Fourth Amendment.’” For the purposes of this
opinion, we consider the protection provided by these provisions to be coextensive.



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59 F.3d 1556, 1560-62 (9th Cir. 1995); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992); Padgett v.
Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2004); Smalley v. State, 889 So. 2d 100 (Fla. Dist. Ct. App.
2004); People v. Ramos, 817 N.E.2d 1110 (Ill. App. Ct. 2004); State v. Surge, 94 P.3d 345 (Wash.
Ct. App. 2004).

         On the other hand, other courts have applied a “special needs” test in cases involving the
collection of a prisoner’s DNA for use in a DNA database. When using the special needs test, courts
look to some special need for the prisoner’s DNA sample beyond the normal need for law
enforcement. “If the court determines that the primary purpose of the law or policy is beyond the
normal need for law enforcement, it must perform ‘a careful balancing of governmental and private
interests.’” Vore v. U.S. Dept. of Justice, 281 F. Supp. 2d 1129, 1133 (D. Ariz. 2003) (quoting
Portillo v. United States Dist. Ct., 15 F.3d 819, 823 (9th Cir. 1994)). For example, in Vore, the court
held that Arizona’s DNA database statute passed the special needs test because “the DNA Act’s
primary purpose is to fill the [federal DNA] database” and “does not, on its own, evidence the
commission of a crime.” Id. at 1136. The court then concluded that the search was not unreasonable
in light of the minimal intrusion upon the felon’s privacy interest and the government’s significant
interest in filling the DNA database. Other courts also have concluded that DNA database statutes
satisfy the special needs test. Green v. Berge, 354 F.3d 675 (7th Cir. 2004); Roe v. Marcotte, 193
F.3d 72, 77 (2nd Cir. 1999); United States v. Kimler, 335 F.3d 1132 (10th Cir. 1983); Balding v.
State, 812 N.E.2d 169 (Ind. Ct. App. 2004); In re D.L.C., 124 S.W.3d 354 (Tex. Ct. App. 2003);
State v. Olivas, 856 P.2d 1076 (Wash. 1993); Doles v. State, 994 P.2d 315 (Wyo. 1999). We note
that regardless of which test is used, courts overwhelmingly have concluded that the taking of blood
from prisoners for use in a DNA database does not constitute an unreasonable search. See Vore, 281
F. Supp. 2d at 1134 .

         In determining which test to apply in this case, we believe that United States v. Kincade, 379
F.3d 813 (9th Cir. 2004), is persuasive. In Kincade, the defendant robbed a bank, served time in a
federal prison, and was released on probation. Subsequently, the defendant’s probation officer asked
him to submit a DNA sample pursuant to the federal DNA Act. The defendant refused, arguing that
the Act violated his Fourth Amendment right to be free from unreasonable searches and seizures.
The ninth circuit disagreed, distinguishing between suspicionless searches of a probationer, who has
a reduced expectation of privacy, and a member of the general public, who enjoys the full panoply
of Fourth Amendment rights. The court held that in the case of probationers, the reasonableness of
the search should be analyzed under the traditional balancing test while special needs analysis should
be reserved for warrantless searches of the ordinary citizen. If the court in Kincade chose to apply
the balancing test for a person on probation, then we believe the balancing test is also preferable for
felons serving prison terms. Therefore, in light of Kincade, we hold that traditional balancing applies
in this case. See also State v. Lynn Ray Bracy, No. 97-cr-078-JEG, 2005 U.S. Dist. LEXIS 6468
(S.D. Iowa Apr. 14, 2005) (noting that the majority of the courts have used the balancing test to rule
on the constitutionality of the federal DNA Act).

        The appellant relies on State v. Hicks, 55 S.W.3d 515 (Tenn. 2001), to support his claim that
the collection of his DNA for a DNA database constitutes an unreasonable search. In Hicks, our
supreme court addressed the constitutionality of drivers’ license roadblocks under Article I, Section

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7 of the Tennessee Constitution. The court determined that the balancing test used in State v.
Downey, 945 S.W.2d 102 (Tenn. 1997), is to be applied to “all cases involving constitutional
challenges to roadblocks or checkpoints under the Tennessee Constitution.” Id. at 524.
Nevertheless, the supreme court went on to say that “in no case may the State establish a roadblock
merely ‘to detect evidence of criminal wrongdoing.’” Hicks, 55 S.W.3d at 530 (quoting City of
Indianapolis v. Edmond, 531 U.S. 32, 41, 121 S. Ct. 447, 454 (2000)). Relying on this statement,
the appellant argues that “if a search or seizure is done without any individualized suspicion, it is
invalid if done to detect evidence of ordinary criminal wrongdoing.” However, the appellant’s
reliance on Hicks is misplaced. Hicks involved searches of the general public. The case before us
involves searches of prisoners, who have a reduced expectation of privacy and do not enjoy the same
panopoly of rights as the general public.

         Turning to the case before us, the factors to be considered in traditional balancing analysis
include the strengths of the plaintiff’s privacy interest, the nature and scope of the intrusion, and the
government interest at stake. Regarding the plaintiff’s privacy interest, we have already stated that
prisoners have a reduced expectation of privacy.                         See Lonnie Turner, No.
M1999-01127-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 419, at *47 (Nashville, June 5, 2001)
(citing Hudson v. Palmer, 468 U.S. 517, 525-24, 104 S. Ct. 3194, 3199 (1984)); see also Groceman
v. United States DOJ, 354 F.3d 411, 413 (5th Cir. 2004) (stating that “like fingerprinting, collection
of a DNA sample for purposes of identification implicates the Fourth Amendment, [and] persons
incarcerated after conviction retain no constitutional privacy interest against their correct
identification); Jones v. Murray 962 F.2d 302, 306 (4th Cir. 1992) (stating that [w]ith the person’s
loss of liberty upon arrest comes the loss of at least some, if not all, rights to personal privacy
otherwise protected by the Fourth Amendment”). Next, in collecting the DNA sample, the nature
and scope of the intrusion is minimal. Turner, No. M1999-01127-CCA-R3-CD, 2001 Tenn. Crim.
App. LEXIS 419, at *47 (stating that “the collection of a blood sample is a minimal intrusion and
has become routine”). Finally, the state’s interest in solving past and future crimes and exonerating
individuals who have been wrongly convicted of crimes is great. Therefore, under the balancing test,
we conclude that Tennessee’s interest in the collection of blood pursuant to Tennessee Code
Annotated section 40-35-321(b) outweighs a defendant’s privacy interest and the minor intrusion
caused by the taking of the blood sample. The statute does not violate our federal or state
constitutions. Given this holding, the issue of the appellant’s consent is irrelevant.

                                           III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the trial court’s denial of the
appellant’s motion to suppress.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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