ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
DONALD W. PAGOS KAREN M. FREEMAN-WILSON
Michigan City, Indiana Attorney General of Indiana
ROSEMARY L. BOREK
Deputy Attorney General
SAMUEL PATTERSON, ) ) Appellant-Defendant, ) ) vs. ) No. 46A03-0003-CR-109 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION ON REHEARING
(quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97
L.Ed.2d. 709 (1987) (citations omitted). This is why the "special needs" exception
has been applied to searches outside the scope of criminal investigations. See
Skinner, 489 U.S. 602 (drug and alcohol testing of railroad employees); National Treasury
Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d
685 (1989) (drug-testing of U.S. Customs Service employees); O'Connor v. Ortega, 480 U.S.
709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (workplace searches conducted by government
employers and supervisors); Veronia School Dist. 47J v. Acton, 515 U.S. 646, 115
S.Ct. 2386, 132 L.Ed.2d 564 (1995) (random drug-testing of school athletes); Chandler v.
Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) (drug-testing of
candidates for high office). Therefore, because Patterson's blood sample was tested as
part of a law enforcement investigation, the testing, by definition, is not a
special need "beyond the normal need for law enforcement." Skinner, 489 U.S.
2. Reasonable Expectation of Privacy
In our opinion, we stated that Patterson did not have a reasonable expectation of privacy because he was already required to provide a blood sample to the DNA Databank for his December 6, 1997 burglary conviction. Patterson argues that this is incorrect because the blood samples were submitted to the labs on November 18, 1997 and August 16, 1998, and the jury did not convict him until May 11, 1999. Patterson is correct.
Although Patterson may not have been required to provide a sample to the DNA Databank at the time the blood samples were submitted to the labs, he still did not have a reasonable expectation of privacy.
To determine whether a person has a reasonable expectation of privacy, we employ a two-part test: (1) "we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy;" and (2) "we inquire whether the individual's expectation of privacy is 'one that society is prepared to recognize as reasonable.'"
Patterson, 2000 WL 1844897 *5 (citations omitted). There is still no evidence
in the record that Patterson exhibited, by his conduct at the time of
the seizure, an actual expectation of privacy. Further, under the facts of
this case, society is not prepared to recognize as reasonable an individual's expectation
of privacy in a blood sample lawfully obtained by police.
Judgment of conviction is affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.