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TN DNA Collection Statute Held Constitutional

Bruce Scarborough and Mack Transou, Tennessee state prisoners, are both
convicted sex-offenders. Upon their admission to the state prison system
both were asked to provide blood samples for DNA testing per Tenn. Code
Ann. § 40-35-3231, et seq. (DNA Statute). Had they refused they would have
received disciplinary infractions, so they signed consent forms and gave
the blood samples. Their DNA matched samples in unsolved rape cases, for
which they were charged. At trial they moved to suppress the DNA evidence.
Their motions were denied, they were convicted, and they appealed.

On appeal, the Supreme Court of Tennessee found that since the DNA Statute
authorized collecting blood from only convicted felons, whose rights are
diminished, and because the procedure isn't unduly invasive, it was
sufficiently reasonable to satisfy constitutional due process principles.
The Court also found that since both prisoners signed consent forms, they
consented to the blood draws and use of the DNA in criminal proceedings.
Therefore, the trial court was affirmed. See: Tennessee v. Scarborough and
Transou, 201 S.W.3d 607 (Tenn., 2006).

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Related legal case

Tennessee v. Scarborough and Transou

201 S.W.3d 607

Supreme Court of Tennessee, at Jackson.

STATE of Tennessee



State of Tennessee


Mack T. Transou.

Nos. E2004-01332-SC-R11-CD, W2004-01475-SC-R11-CD, W2003-02966-SC-R11-CD.

Feb. 1, 2006 Session.

Aug. 28, 2006.

Petition to Reconsider Denied Sept. 19, 2006.
*610 Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender, Knoxville, Tennessee, for the Appellant, Bruce Warren Scarborough.
Mike Mosier (at trial on No. 02-359) and Richard L. Finney (at trial on No. 02-360 and on appeal in both cases), Jackson, Tennessee, attorneys for the Appellant, Mack T. Transou.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General, and Kevin Allen, Assistant District Attorney (Scarborough); Jerry Woodall, District Attorney General, and Jody S. Pickens, Assistant District Attorney General (Transou), attorneys for the Appellee, State of Tennessee.

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.



We granted these appeals to determine whether the extraction of blood from a *611 convicted and incarcerated felon for DNA analysis pursuant to Tennessee's DNA collection statute, Tenn.Code Ann. § 40-35-321 (2003), is constitutional under both the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution. These three cases come before us upon Defendant Scarborough's interlocutory appeal from the denial of his motion to suppress evidence and upon Defendant Transou's direct appeals from his convictions in two separate cases. Transou also challenges the sufficiency of the evidence supporting his convictions of rape and aggravated burglary in one of his cases and the sentences he received for those offenses. We conclude that the DNA collection statute is constitutional as applied here. We further hold that Transou consented to having his blood drawn; that the evidence is sufficient to support Transou's convictions of rape and aggravated burglary; and that his sentences for those crimes are valid. The judgments of the Court of Criminal Appeals in all three cases are affirmed.



The appeals in these three cases were consolidated for oral argument because they involve related questions of law involving Tennessee Code Annotated section 40-35-321 (2003) ("the DNA collection statute") which provides:
(d)(1) When a court sentences a person convicted of any felony offense committed on or after July 1, 1998, it shall order the person to provide a biological specimen for the purpose of DNA analysis as defined in subsection (a). If the person is not incarcerated at the time of sentencing, the order shall require the person to report to the county or district health department, which shall gather the specimen. If the person is incarcerated at the time of sentencing, the order shall require the chief administrative officer of the institution of incarceration to designate a qualified person to gather the specimen. 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.

We begin by reviewing briefly the background of each case.
Defendant Scarborough

On March 10, 1999, defendant Bruce Warren Scarborough pleaded guilty in Blount County to committing aggravated burglary, theft, and sexual battery on August 25, 1998. Aggravated burglary and sexual battery are Class C and E felonies, respectively. See id. §§ 39-14-403(b), 39-13-505(c). Scarborough was incarcerated for his crimes and, on April 22, 1999, participated in the prison facility's health screening for new inmates. During this screening, he was requested to submit a blood specimen pursuant to the DNA collection statute for DNA analysis, defined as "the process through which deoxyribonucleic acid (DNA) in a human biological specimen is analyzed and compared with DNA from another biological specimen for identification purposes." Id. § 40-35-321(a). Scarborough signed a consent form for the blood draw and DNA analysis, and a blood specimen was obtained. A DNA analysis was performed, and the results were submitted to the Federal Bureau of Investigation's Combined DNA Index System (CODIS).

In June 2002 the Tennessee Bureau of Investigation reported that the DNA profile obtained from the 1999 specimen submitted*612 by Scarborough matched the DNA profile obtained from a sample of forensic evidence recovered during a physical examination conducted on J.S., a woman who reported that she had been raped in Knox County on March 2, 1997.FN1 Following this match, a search warrant was obtained on July 8, 2002, and a second specimen of blood was taken from Scarborough. Analysis of the second specimen confirmed that Scarborough was the source of the forensic evidence obtained during the examination of the 1997 rape victim. Scarborough was subsequently charged with four counts of aggravated rape against J.S. That case is before us today.
FN1. This Court identifies the victims of sexual offenses by their initials.
Scarborough filed a motion to suppress the evidence obtained as a result of the blood specimen drawn in 1999 pursuant to the DNA collection statute, asserting that the DNA collection statute is unconstitutional because it violates his federal and state constitutional rights against unreasonable searches and seizures. The trial court denied the motion on its merits but granted an interlocutory appeal. The Court of Criminal Appeals accepted the interlocutory appeal and affirmed the judgment of the trial court. Scarborough then sought this Court's review, which we granted.FN2
FN2. Interlocutory appeals to review pretrial orders or rulings are generally "disfavored," especially in criminal cases. State v. Gilley, 173 S.W.3d 1, 5 (Tenn.2005). In Scarborough's case, the trial court noted that the suppression issue is dispositive in one of four other cases pending against him and would further assist the trial court in determining whether evidence against him in the three other cases should be suppressed. Further, the constitutionality of the DNA collection statute is a matter of first impression before this Court. Interlocutory appeals are appropriate where there is a need to prevent needless, expensive, and protracted litigation and a need to develop a uniform body of law. See Tenn. R.App. P. 9(a)(2), (3). We therefore conclude that an interlocutory appeal of the denial of Scarborough's motion to suppress is proper.

Defendant Transou

Defendant Mack Transou was convicted in 1999 of the Class E felony offense of driving after being declared a motor vehicle habitual offender. See id. §§ 55-10-613(a), 55-10-616(b). The offense date was May 14, 1997. Transou was subsequently incarcerated for his infraction. During intake processing at the prison, Transou signed a consent form and submitted to a blood draw. A DNA analysis was performed and the results were submitted to CODIS. Transou's DNA profile was eventually matched to profiles developed from forensic evidence obtained in two unsolved crimes: the reported rape of S.K. in December 2001 and the reported rape of C.T. in March 2002. Transou was subsequently charged with both sets of offenses. In both cases he filed a motion to suppress the evidence obtained pursuant to the 1999 blood draw taken while he was in prison. FN3 The motions were consolidated in the trial court for a single hearing on January 9, 2003.

FN3. In May 2002, after Transou had been released from prison, he was taken into custody for questioning because his DNA profile, developed from the 1999 blood draw and submitted to CODIS, had been matched to evidence obtained during S.K.'s rape-kit examination. On May 16, 2002, Transou submitted another blood draw to Lieutenant Mike Holt. This "known sample" was then matched to forensic evidence in both the S.K. and C.T. rape cases. Transou contested the validity of this May 2002 search in the courts below but does not contest it before this Court.
At the suppression hearing, Teresa Patterson, a licensed practical nurse, testified *613 that she had been employed by the Department of Correction to draw blood samples from inmates. She explained the procedure:
The first thing we would do as they entered intake would be explain the procedure to all the inmates because there was a consent form to sign. After the inmates sign the consent form, they would be brought into the lab room where the blood would be drawn, labeled at the same exact time, packaged at the exact same time and then sealed.

Ms. Patterson identified a consent form bearing her signature dated September 7, 1999. This form also bears Transou's name at the location indicating consent to a blood draw. Ms. Patterson stated that inmates would occasionally object to having their blood drawn and that there was an administrative procedure in place to address those objections.

The consent form dated September 7, 1999, and bearing Transou's name was admitted into evidence. It is titled "Consent for DNA Analysis" and provides, in pertinent part, as follows:

I, Mack Transou, understand that I am being requested to allow the health professional to collect a blood specimen as required in statute TCA § 40-35-321, collection of biological specimens for DNA analysis-persons convicted of certain offenses-condition of release from imprisonment.

TCA § 40-35-321 provides that any person convicted of violating or attempting to violate § 39-13-502 (Aggravated Rape), § 39-13-503 (Rape), § 39-13-504 (Aggravated Sexual Battery), § 39-15-505 (Sexual Battery), § 39-13-522 (Rape of a Child), or § 39-15-302 (Incest), must provide a biological specimen for the purpose of DNA analysis. Furthermore, TCA § 40-35-321 provides that any person convicted of any felony offense committed on or after July 1, 1998, must provide a biological specimen for the purpose of DNA analysis. The biological specimen will be forwarded to the Tennessee Bureau of Investigation which shall maintain it as provided in § 39-6-113.

If a person convicted of violating or attempting to violate § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-505, § 39-13-522, § 39-15-302, or § 40-35-321 [sic], and committed to the custody of the commissioner of correction for a term of imprisonment, does not provide a biological specimen for the purpose of DNA analysis before completion of the person's term of imprisonment, that person may not be released on parole or otherwise unless and until such person provides such a specimen.

If an inmate is convicted of a disciplinary offense for refusing to provide a biological specimen, he/she shall forfeit the opportunity to earn behavior sentence credits until such time he/she provides a biological specimen. If applicable, previously earned behavior sentence credits shall not be forfeited. A person refusing to provide a biological specimen may at a later date provide a specimen. For those persons refusing to provide a specimen, a due process hearing shall be provided by the disciplinary board.

The consent form contains two alternative signature lines for the inmate: one following the statement "By signing this I acknowledge that I understand the above mentioned" and the other following the statement "I am refusing to participate in the DNA testing process." Transou's signature appears on the first of these lines.

Transou testified at the suppression hearing about the circumstances surrounding the blood draw:

You know, we was kind of in a rush when we went through there. They just *614 told everybody just go through these forms here and fill them out and sign them. You know, I didn't even take time to read, you know, what I was signing. You just went through there. They had something like six forms. We went through them and signed them, and they-they drawed the blood.

Concerning his knowledge about participation in DNA testing, Transou also testified, "Technically it was not required when I went through. They just started this back in 2000."

On cross-examination, Transou admitted he had been "in and out of jail" most of his adult life. Consequently, he was "very well familiar" with the criminal justice system. He was familiar with the law library at the prison and had done research there, even filing motions on his own behalf. Transou identified his signature on two motions he had filed with the court, and on a letter he had sent the court. He acknowledged the importance of reading documents before signing them. He acknowledged previous familiarity with the Consent for DNA Analysis form. He acknowledged having signed the September 1999 Consent for DNA Analysis form, but contended that he did so in order to avoid a disciplinary action.

On redirect, Transou maintained that he "wasn't given a choice" about whether to submit to the blood draw.

Connie Howard testified that she is the state administrator for CODIS. She explained that CODIS is a local, state, and national database for DNA profiles developed from forensic evidence collected in criminal investigations and from "convicted offender samples." According to Ms. Howard, a sample from Transou collected on September 7, 1999, was submitted to CODIS.
The trial court denied Transou's motion to suppress, ruling that at the time he signed the consent form Transou knew the DNA collection statute did not apply to him, and that "when considering [Transou's] educational level, his familiarity with the criminal justice system, and his acknowledgment that he was familiar with the consent form he signed on 9/7/99, [Transou] intelligently, knowingly, and voluntarily consented to having his blood drawn."

Following the denial of his motions to suppress in both cases, Transou was tried before a jury in each one. In the case involving victim C.T., Transou was convicted of one count of rape and one count of sexual battery. In the case involving victim S.K., Transou was convicted of one count of rape and one count of aggravated burglary. Because Transou contests the sufficiency of the evidence supporting his convictions for the offenses committed against S.K., FN4 we set forth the Court of Criminal Appeals' summary of the proof adduced at his trial for these offenses: FN5

FN4. Transou does not contest the sufficiency of the evidence supporting his convictions for the offenses committed against C.T.

FN5. Transou concedes in his application for permission to appeal to this Court that the Court of Criminal Appeals' statement of facts is "substantially correct."

In the early hours of the morning on December 23, 2001, the victim, [S.K.], awoke to the sound of [Transou] crashing through her bedroom door. [Transou] grabbed her and though the victim fought to push him away, he succeeded in raping her. When the police arrived, they found the victim visibly upset and extremely frightened. Although the victim identified [Transou] at trial, on the morning of the assault she was only able to give investigators a general description*615 of her assailant, including his general age, height, weight, race, and clothing. Police determined that [Transou] had broken in and fled through the victim's back door, as evidenced by the broken glass, cut screen, and damage to the door itself. Investigators were not able to collect any usable fingerprints from the victim's home. The victim was taken to the emergency room, where physicians performed an examination and sexual assault kit. An examination of the sexual assault kit revealed the presence of semen. DNA from semen collected as part of the sexual assault kit was compared with DNA from a sample of [Transou's] blood, and they matched. According to the crime lab technician who testified at trial, the probability that another person besides [Transou] would have the exact DNA profile is one out of a number so large that it exceeds the current world population. Specifically, the crime lab technician testified that, based on the statistics, no person other than [Transou] could have been the source of the semen collected during the physical examination of the victim.
Based on this proof the jury convicted Transou of one count of rape of S.K. and one count of aggravated burglary. The trial court subsequently sentenced Transou to concurrent terms of sixteen years and fifteen years of incarceration, respectively.


I. Standard of Review

We will uphold a trial court's findings of fact in a hearing on a motion to suppress evidence unless the evidence preponderates otherwise. State v. Cox, 171 S.W.3d 174, 178 (Tenn.2005). Questions regarding witness credibility, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. State v. Carter, 16 S.W.3d 762, 765 (Tenn.2000). The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn therefrom. Id. However, this Court reviews de novo the trial court's application of the law to the facts without according any presumption of correctness to those conclusions. Id.

II. DNA Collection Statute

In 1994 the United States Congress empowered the Federal Bureau of Investigation to create a database of DNA profiles, see 42 U.S.C.A. § 14132 (1995), commonly referred to as the Combined DNA Index System (CODIS). In response, all fifty states enacted legislation to collect biological specimens for the purpose of creating a DNA profile of persons convicted of certain crimes, see United States v. Kincade, 379 F.3d 813, 848 (9th Cir.2004) (en banc) (Reinhardt, J., dissenting), and placed those DNA profiles in the searchable CODIS database. See Federal Bureau of Investigation, NDIS Participants, available at http:// www. fbi/ gov/ hq/ lab/ codis/ partstates. htm.