MARIO W., Pеtitioner, v. The Honorable Thomas KAIPIO, Commissioner of The Superior Court of The State of Arizona, in and for the County of Maricopa, Respondent Commissioner, State of Arizona, Real Party in Interest. [and consolidated cases]
No. CV-11-0344-PR
Supreme Court of Arizona
June 27, 2012
281 P.3d 476
William G. Montgomery, Maricopa County Attorney By Linda Van Brakel, Deputy County Attorney, Phoenix, Attorneys for State of Arizona.
Arizona Attorneys for Criminal Justice By David J. Euchner, Julie M. Levitt-Guren, Chandler, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.
HURWITZ, Vice Chief Justice.
¶ 1 Arizona law requires juveniles charged with certain offenses and summoned to appear at an advisory hеaring to submit to the investigating law enforcement agency “a sufficient sample of buccal cells or other bodily substances for deoxyribonucleic acid [DNA] testing and extraction.”
I.
¶ 2 Seven juveniles (collectivеly, the “Juveniles“) were separately charged with violations of offenses specified in
¶ 3 The Juveniles then jointly filed a special action in the court of appeals. That court accepted jurisdiction аnd a divided panel held that requiring the submission of DNA samples from five juveniles for whom a probable cause determination has been made does not violate the Fourth Amendment. Mario W. v. Kaipio, 228 Ariz. 207, 210 ¶ 1, 265 P.3d 389, 392 (App.2011). The majority reasoned that a judicial finding of probable cause is a “watershed event” that reduced these juveniles’ expectations of privacy, id. at 214-15 ¶ 22, 265 P.3d at 396-97, and that the State‘s “interest in identifying these juveniles outweighs their right to privacy,” id. at 217 ¶ 30, 265 P.3d at 399.1 A different 2-1 majority, however, held that the Fourth Amendment forbids the DNA sampling of the two juveniles for whom no probable cause determination has yet been made. Id. at 210 ¶ 2, 265 P.3d at 392.2
¶ 4 The State and two of the Juveniles petitioned for review. We granted both petitions to address a recurring legal issue of statewide importance. We exercise jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and
II.
¶ 5 After a buccal sample is obtained under
III.
A.
¶ 6 Before addressing the constitutional claims raised by the Juveniles, it is appropriate to begin by noting what is not at issue in this case.
¶ 7 First, the parties agree that DNA sampling involves a search or seizure governed by the Fourth Amendment.
¶ 8 Second, it is common ground that none of the Juveniles had been adjudicated delin-
¶ 9 Third, the State does not claim probable cause that a DNA profile will provide evidence that any of these juvenilеs committed the charged offenses. Nor does the State even reasonably suspect that a juvenile committed another offense for which the DNA profile might provide investigative assistance. Cf. Hayes v. Florida, 470 U.S. 811, 817 (1985) (“[T]he Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect‘s connеction with that crime, and if the procedure is carried out with dispatch.“);
¶ 10 Fourth, although
¶ 11 Finally, the Juveniles do not contest the efficacy of the DNA database systems—both state and national—in solving crimes and providing unique identification information about an individual. But neither does the State claim—nor does any case suggest—that these law enforcement goals would justify DNA sampling and profiling of ordinary citizens. See Haskell, 669 F.3d at 1058 (majority opinion) (assuming unconstitutionality of such a procedure); id. at 1061 (noting that the majority and the dissent agreed on the unconstitutionality of such a procedure).
B.
¶ 12 We turn then to the issue at hand: May the State, consistent with the Fourth Amendment, compel these Juveniles to submit to DNA extraction and profiling as a condition of release?
¶ 13 The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persоns, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
It has been long established that warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). Supreme Court jurisprudence also long taught that even searches exсepted from the warrant requirement could be conducted only on probable cause. See Dunaway v. New York, 442 U.S. 200, 208 (1979) (discussing case law). In 1968, however, the Court held that the Fourth Amendment allowed temporary seizures based on something less than probable cause—reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 25-31 (1968).
¶ 14 The Court has also upheld searches in certain circumstances absent any showing of probable cause or reasonable suspicion. In Samson v. California, the Court held that a search mаndated as a condition of parole does not violate the Fourth Amendment. 547 U.S. 843, 847 (2006). Although the Court might have premised Samson on a consent theory, it instead employed a “totality of the circumstances test” in finding the search reasonable. Id. at 848-53. Under that test, “[w]hether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual‘s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 848 (citation and internal quotation marks omitted). The Court had earlier employed a totality of the circumstances analysis to uphold the suspicionless search of a probationer. United States v. Knights, 534 U.S. 112, 118 (2001). This Term, the Court upheld strip searches of jail detainees without any showing of probable cause or reasonable suspicion. Florence v. Bd. of Chosen Freeholders, --- U.S. ---, 132 S.Ct. 1510, 1518-23, 182 L.Ed.2d 566 (2012). Although not explicitly employing a totality of the circumstances test, Florence also balanced the government‘s interests in safety and orderly jаil administration against the reduced privacy interests of detainees. Id.
¶ 15 No Arizona or United States Supreme Court case, however, addresses the constitutionality of suspicionless pre-conviction DNA testing. The case law elsewhere is sharply divided. Maryland‘s highest court recently found that DNA profiling of arrestees violated the Fourth Amendment. King v. State, 425 Md. 550, 42 A.3d 549, 580 (2012). Other courts have also so held, distinguishing the post-conviction cases because arrestees have a higher еxpectation of privacy than convicted felons. See, e.g., Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir.2009); In re Welfare of C.T.L., 722 N.W.2d 484, 492 (Minn.Ct.App.2006).
¶ 16 Several other courts, however, have found DNA profiling of arrestees reasonable under the Fourth Amendment. See, e.g., Haskell, 669 F.3d at 1065 (2-1 decision); United States v. Mitchell, 652 F.3d 387, 416 (3d Cir.2011) (en banc) (8-6 decision); United States v. Pool, 621 F.3d 1213, 1226 (9th Cir.2010), reh‘g en banc granted, 646 F.3d 659 (9th Cir.), and vacated, 659 F.3d 761 (9th Cir.2011); Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702, 705-06 (2007). These courts have found that the government‘s interests in identifying arrestees and solving crimes outweigh an arrestee‘s diminished expectations of privacy.
¶ 17 Most courts considering the constitutionality of DNA sampling and profiling have employed the totality of the circumstances test. See Mitchell, 652 F.3d at 403 (“We and the majority of circuits—the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and District of Columbia—have endorsed a totality of the circumstances approach.“). But see Amerson, 483 F.3d at 78 (applying “special needs test“); Green v. Berge, 354 F.3d 675, 677-78 (7th Cir.2004) (same). The parties do not dispute the applicability of the totality of the circumstances test, and we therefore analyze the Arizona scheme under that rubric.
C.
¶ 18 We begin by recognizing that the Arizona statutory scheme involves two separate intrusions on a juvenile‘s privacy. First,
¶ 19 This approach is consistent with рrecedent outside the DNA context. In United States v. Chadwick, for example, the Supreme Court analyzed separately the legality of the seizure of a steamer trunk and the later opening of the trunk, holding the initial seizure reasonable but finding the later search unconstitutional. 433 U.S. 1, 13 & n. 8 (1977).5 Similarly, our court of appeals has held that even if an officer may be justified under the circumstances in seizing a purse during a Terry stop, the same justification does not automatically allow the seаrch of the purse. In re Tiffany O., 217 Ariz. 370, 375 ¶ 20, 174 P.3d 282, 287 (App.2007); see also United States v. Doe, 61 F.3d 107, 110-11 (1st Cir.1995) (analyzing separately the constitutionality of the seizure of a closed container and subsequent opening of the container).
¶ 20 These cases recognize that even when law enforcement exigencies justify an initial limited intrusion on Fourth Amendment protected interests, a greater showing is required for a second more extensive intrusion. The two-tiered approach is particularly appropriate in the DNA sampling and profiling context because the two searches implicate different privacy interests. The seizure of buccal cells is a physical intrusion, but does not reveal by itself intimate personal information about the individual. The la- 5ter search of the sample, however, reveals uniquely identifying information about individual genetics. See Haskell, 669 F.3d at 1051 (describing identifying characteristics of DNA profile). That second search is, in effect, the analog to opening the steamer trunk in Chadwick and the purse in Tiffany O. to see what is inside.
1.
¶ 21 We thus turn first to the seizure of buccal cells. It is clear that one arrested on probable cause may be compelled to give fingerprints to law enforcement. See Davis v. Mississippi, 394 U.S. 721, 725-28 (1969). Several courts have characterized a buccal swab as a similarly minimal intrusion into an arrestee‘s privacy. See, e.g., Haskell, 669 F.3d at 1050; Mitchell, 652 F.3d at 407; Martin, 955 A.2d at 1153-54.
¶ 22 We agree. While taking fingerprints, law enforcement officers will often touch the body of an arrestee or restrain him from departing until the process is completed. See
¶ 23 But even if еxtracting the cell sample does not intrude on privacy to the same extent as a search of a home or the drawing of blood, it nonetheless remains a search or seizure under the Fourth Amendment. See, e.g., Mitchell, 652 F.3d at 406. Under the totality of the circumstances test, the issue is whether, and to what degree, that intrusion serves important governmental interests. Samson, 547 U.S. at 848.
¶ 25 This exigency justifies obtaining a buccal cell sample even if a formal judicial determination of probable cause was not made at the advisory hearing. Although two of the Juveniles were ordered to submit samples before a probable cause determination was made, each had been charged with a serious сrime in a petition filed under oath by the prosecutor. See
2.
¶ 26 The State argues that once it has lawfully obtained thе cell samples, the Fourth Amendment provides no greater bar to the processing of those samples and the extraction of the DNA profile than it does to the analysis of fingerprints. But the State‘s reliance on the fingerprinting analogy here is misplaced. Once fingerprints are obtained, no further intrusion on the privacy of the individual is required before they can be used for investigative purposes. In this sense, the fingerprint is akin to a photograph or voiсe exemplar. But before DNA samples can be used by law enforcement, they must be physically processed and a DNA profile extracted. See Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 726-30 (2007).
¶ 27 This second search presents a greater privacy concern than the buccal swab because it involves the extraction (and subsequent publication to law enforcement natiоnwide) of thirteen genetic markers from the arrestee‘s DNA sample that create a DNA profile effectively unique to that individual. Ashley Eiler, Note, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L.Rev. 1201, 1220 (2011) (“[I]t is the nature of the information obtained by analyzing DNA samples for inclusion in CODIS rather than the bodily intrusion of the initial collection that is problematic.“). Because the State may constitutionally еxtract DNA profiles from the buccal swabs of those who are eventually convicted, the essential issue is whether the governmental interest in obtaining the DNA profiles before trial is sufficient to justify the second search.
¶ 29 Indeed, whether or not the juvenile is eventually adjudicated delinquent, the benefit to law enforcement of obtaining a DNA profile in the few weeks between the advisory hearing and trial is speculative at best. The buccal sample will not typically be processed until weeks after it is obtained. In California, for example, it takes an average of thirty-one days to process a sample, Haskell v. Brown, 677 F.Supp.2d 1187, 1201 (N.D.Cal.2009), aff‘d sub nom. Haskell v. Harris, 669 F.3d 1049 (9th Cir.2012), and the State does not suggest that the process in Arizona is speedier. Adjudication of charges for juveniles not detained (as the Juveniles here) occurs within sixty days of the advisory hearing,
¶ 30 As noted above, sоme juveniles released pending adjudication may abscond, and a DNA profile may be invaluable in their identification and recapture. But because the State already will have obtained a buccal sample from those complying with a
¶ 31 We recognize that DNA profiles are an important law enforcement tool for investigating crimes other than those сharged. See 3 Wayne R. LaFave, Search & Seizure § 5.4 (4th ed. 2004) (noting that the true purpose of DNA databases has not “been primarily to supplement or supplant fingerprints as markers of true identity but rather to generate investigate leads“); David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. (forthcoming Summer 2012), available at http://ssrn.com/abstract=2043259 (“Realistically, the sole purpose of arrestee sampling . . . is intelligence.“). Having a DNA profile before adjudication may conceivably speed such investigations. But one accused of a crime, although having diminished expectations of privacy in some respects, does not forfeit Fourth Amendment protections with respect to other offenses not charged absent either probable cause or reasonable suspicion. An arrest for vehicular homicide, for example, cannot alone justify a warrantless search оf an arrestee‘s financial records to see if he is also an embezzler.
¶ 32 Thus, we find no state interest sufficient to justify the serious intrusion on the privacy interests of the Juveniles occasioned by the second search—the extraction of the DNA profile from the buccal swab before adjudication or failure to appear. The swab remains available for processing thereafter, and no exigency exists warranting an earlier suspicionless sеarch.
IV.
¶ 33 For the reasons above, we vacate the opinion of the court of appeals, and we remand the cases to the superior court for proceedings consistent with this opinion.