MARIO W., Petitioner, 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. Bradley W., Petitioner, 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. Alexis A., Petitioner, v. The Honorable Mark Brain, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner, The State of Arizona, Real Party in Interest. Noble B., Petitioner, v. The Honorable Thomas Kaipio, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona, Real Party in Interest. Bailey J., Petitioner, v. The Honorable Mark F. Aceto, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona, Real Party in Interest. Devon C., Petitioner, v. The Honorable Peter A. Thompson, 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. Eric R., Petitioner, v. The Honorable Kaipio, Commissioner Of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona Real Party in Interest, Respondent.
Nos. 1 CA-SA 11-0016, 1 CA-SA 11-0020, 1 CA-SA 11-0025, 1 CA-SA 11-0031, 1 CA-SA 11-0032, 1 CA-SA 11-0042, 1 CA-SA 11-0043
Court of Appeals of Arizona, Division 1, Department D.
Oct. 27, 2011.
265 P.3d 389
Maricopa County Public Defender‘s Office By Ian Pettycrew, Deputy Juvenile Public Advocate, Mesa, Attorneys for Bradley W.
Maricopa County Public Defender‘s Office By Colleen Engineer, Deputy Juvenile Public Defender, Mesa, Attorneys for Petitioner Noble B. and Devon C.
Maricopa County Public Defender‘s Office By Devra N. Ellexson, Deputy Juvenile Public Defender, Mesa, Attorneys for Petitioner Eric R.
Maricopa County Attorney‘s Office By Linda Van Brakel, Deputy County Attorney, David J. Flader, Deputy County Attorney, Jeffrey W. Trudgian, Deputy County Attorney, Phoenix, Attorneys for Real Party In Interest.
OPINION
GEMMILL, Judge.
¶ 1 These consolidated special actions require us to evaluate the constitutionality of the requirement under
¶ 2 Regarding the five juveniles, Judge Orozco and I agree that the DNA sample may constitutionally be taken, although our reasoning differs to some extent, and Judge Norris dissents from our decision regarding these five juveniles. Regarding the two juveniles, Judge Norris and I agree that application of
¶ 3 For the reasons that follow in my portion of this opinion, I conclude that DNA samples may constitutionally be taken from the five juveniles primarily because there has been a judicial finding of probable cause to believe that each juvenile has committed one of the enumerated offenses within
¶ 4 For the reasons stated in Judge Orozco‘s separate concurrence and dissent, she concludes that the statutorily authorized use of the DNA information for identification is substantively similar to the common use of fingerprints and that
¶ 5 For the reasons stated in Judge Norris‘s separate dissent and concurrence, she concludes that under most circumstances the pre-adjudication taking of DNA from juveniles accused of the offenses listed in
JURISDICTION
¶ 6 Special action jurisdiction is appropriate when there is no “equally plain, speedy, and adequate remedy by appeal.”
BACKGROUND
¶ 7 Seven juveniles, Mario, Bradley, Alexis, Eric, Noble, Bailey, and Devon, petition for special action relief regarding the necessity of their compliance with the statutory requirement to submit to a DNA sample prior to their release.
¶ 8 Mario, age fourteen years, was the subject of a juvenile referral alleging that he committed sexual conduct with a minor. A petition for delinquency was subsequently filed, charging him with one count of sexual conduct with a minor, in violation of
¶ 9 Thirteen-year-old Bradley was also the subject of a juvenile referral for allegedly committing sexual conduct with a minor. The State filed a petition for delinquency and charged Bradley with count one, attempted sexual conduct with a minor under fifteen, in violation of
¶ 10 Fifteen-year-old Alexis was the subject of a juvenile referral alleging that he committed burglary in the second degree. The State subsequently filed a delinquency petition charging Alexis with count one, burglary in the second degree, in violation of
¶ 11 Thirteen-year-old Eric was the subject of a juvenile referral for burglary in the second degree, destruction of evidence, and domestic violence assault. The State subsequently filed a delinquency petition, charging Eric with one count of burglary in the second degree, a class three felony, in violation of
¶ 12 Twelve-year-old Noble was the subject of a juvenile referral for child molestation and sexual conduct with a minor. The State filed a delinquency petition charging Noble with two counts of sexual conduct with a minor under fifteen, class 2 felonies, in violation of
¶ 13 Bailey, age thirteen years, was the subject of a juvenile referral alleging that he committed two counts of child molestation. A petition for delinquency was subsequently filed, charging with him with two counts of molestation of a child, in violation of
¶ 14 Thirteen-year-old Devon was the subject of a juvenile referral for burglary, theft, and criminal damage. The State subsequently filed a delinquency petition charging Devon with one count of burglary in the second degree, a class three felony, in violation of
¶ 15 In conjunction with their petitions for special action, at least six of the juveniles filed motions to stay execution of order pending disposition of petition for special action. This court stayed the juvenile court orders requiring Mario, Bradley, and Alexis to submit DNA samples. The juvenile court stayed its own orders requiring DNA testing of Eric, Bailey, and Noble.
ANALYSIS
¶ 16 We review the constitutionality of a statute de novo. City of Tucson v. Pima County, 199 Ariz. 509, 515, ¶ 18, 19 P.3d 650, 656 (App.2001). We presume statutes to be constitutional, unless shown otherwise, and “[w]e will not declare an act of the legislature unconstitutional unless we are satisfied beyond a reasonable doubt that the act is in conflict with the federal or state constitutions.” Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982). When doubts exist as to a statute‘s viability, we attempt to construe the statute with “a reasonable and constitutional meaning.” LaFaro v. Cahill, 203 Ariz. 482, 488, ¶ 21, 56 P.3d 56, 62 (App.2002) (quoting McGovern v. McGovern, 201 Ariz. 172, 178, ¶ 20, 33 P.3d 506, 512 (App.2001)).
Fourth Amendment Concerns: Unreasonable Search and Privacy
¶ 17 The juveniles contend that
¶ 18 Using a buccal swab to procure a DNA sample, like blood drawn for the same purpose, constitutes a search under the Fourth Amendment. Maricopa County Juvenile Action Nos. JV-512600 and JV-512797, 187 Ariz. 419, 423, 930 P.2d 496, 500 (App.1997) (recognizing that “a compelled intrusion[ ] into the body for blood” is deemed a Fourth Amendment search (quoting Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966))); see also State v. Garcia-Salgado, 170 Wash.2d 176, 240 P.3d 153, 157 (2010) (finding that a cheek swab, taken for the purposes of collecting DNA, constitutes a search under the Fourth Amendment). In general, a search is considered unreasonable unless it is accompanied by a judicial warrant issued following a finding of probable cause. JV-512600 and JV-512797, 187 Ariz. at 423, 930 P.2d at 500.
¶ 19 The totality of the circumstances test is used to balance the juveniles‘s individual rights against the State‘s interest in conducting the DNA search. See United States v. Mitchell, 652 F.3d 387, 390, 399, 403-04 (3d Cir.2011) (applying the totality of the circumstances test to balance the government‘s rights to conduct a DNA search of an arrestee and pretrial detainee under the federal DNA Act,
¶ 20 We analyze various factors to evaluate the balance of the juveniles‘s rights against the governmental interest in this case. Such factors include: whether there was a judicial finding of probable cause that the juvenile committed the charged offense, the level of intrusion in relation to other pre-adjudicative procedures, the degree and nature of physical intrusion required by the test, statutes restricting use of test results, and any evidence in the record regarding improper uses of the results.
¶ 21 DNA samples may be constitutionally taken from defendants who have been convicted of serious offenses because convicted felons have reduced rights of privacy and states have substantial interests in protecting the public by acquiring DNA samples to deter future offenses and solve pending investigations. See, e.g., In re Leopoldo L., 209 Ariz. 249, 254-55, ¶¶ 21-22, 25, 99 P.3d 578, 583-84 (App.2004) (upholding the taking of DNA samples from adjudicated juveniles and concluding that DNA testing assists in identifying persons who have committed or may commit crimes and in deterrence); Polston v. State, 360 Ark. 317, 201 S.W.3d 406, 408, 411-414 (2005) (upholding constitutional challenge to state‘s DNA Act, which permitted taking DNA samples from persons convicted of felonies because state‘s interest in crime prevention and resolution outweighed defendant‘s reduced expectation of privacy); State v. Hutchinson, 969 A.2d 923, 928-932 (Me.2009), cert. denied, --- U.S. ---, 130 S.Ct. 510, 175 L.Ed.2d 362 (2009) (upholding constitutionality of state law requiring convicted felons to provide DNA samples based on reduced expectation of privacy, minimal intrusion of buccal swab procedure, statutory safeguards against misuse of DNA information, and state‘s interest in solving existing crimes, deterring recidivism, and absolving innocent persons); State v. Sanders, 343 Or. 35, 163 P.3d 607, 612 (2007) (looking to federal appellate law and concluding that state law requiring convicted felons to submit a blood or buccal swab sample for DNA testing was reasonable under the totality of the circumstances and constitutional under the Fourth Amendment).
¶ 22 A judicial finding of probable cause serves as a “watershed event” that distinguishes such a defendant from the general public and permits application of the totality of circumstances exception to the warrant requirement of the Fourth Amendment. In this regard, I agree with the reasoning of the United States Magistrate Judge in United States v. Pool, 645 F.Supp.2d 903 (E.D.Cal.2009):3
The judicial or grand jury finding of probable cause within a criminal proceeding is a watershed event which should be viewed differently from mere pre-judicial involvement gathering of evidence. After such a judicial finding, a defendant‘s liberty may be greatly restricted-even denied. As part of his pre-trial release, defendant may be deprived of his very liberty; he can be subject to electronic monitoring; he may be ordered to obey a mandatory curfew. Also, the court can order a defendant to refrain from traveling outside of the East-
ern District of California without prior approval, not to possess a firearm and that he must reside at a location that is reviewed and approved by the Pretrial Services Officer. In a pornography case he can be directed to not have any communications with a minor without the child‘s parent or guardian being present, cannot be found within 100 feet of a schoolyard, park, playground or other place frequented by children, cannot access the internet or possess a computer at his residence without prior approval. These conditions are almost identical to those conditions which can be imposed on a probationer or parolee for whom a DNA testing requirement has been found appropriate under a totality of the circumstances standard. The court finds that an up-front requirement for finding probable cause that the defendant has committed the charged felony places the issue much more closely with those cases utilizing a totality of the circumstances standard.
Id. at 909 (footnotes omitted), vacated upon guilty plea, United States v. Pool, No. 09-10303, 2011 WL 4359899 at *1.
¶ 23 For the five juveniles, there has been a judicial finding of probable cause, either during an advisory hearing or at a pretrial conference, that they had committed the charged offenses. Additionally, numerous routine restrictions are placed on the juveniles at the time of their release from detention. See supra ¶¶ 8-14. “The court may release [a] juvenile and set such terms and conditions of release as deemed appropriate.”
¶ 24 This conclusion is supported by the five juveniles‘s reduced expectation of privacy and the State‘s enhanced interest in crime prevention and deterrence, based on the judicial finding of probable cause to believe that each juvenile has committed at least one of the offenses listed in
¶ 25 Juveniles contend that DNA can disclose their entire genetic code, which could reveal such information as paternity or familial relationship, medical conditions, and other private information. Arizona law, however, strictly limits the use of the DNA information to the following:
- For law enforcement identification purposes.
- In a proceeding in a criminal prosecution or juvenile adjudication.
- In a proceeding under title 36, chapter 37 [relating to sexually violent persons].
¶ 26 Juveniles also contend that DNA samples are stored for future testing and therefore samples have “a continuing role which can be utilized in ways the juvenile can never control.” Although samples may be stored for future use, statutory provisions permit the expungement of the DNA sample if the juvenile is later found to be acquitted of the charged crimes.
¶ 27 The juveniles also argue that the DNA testing violates their right to privacy guaranteed under the Fourth and Fourteenth Amendments to the U.S. Constitution and Article 2, Section 8, of the Arizona Constitution. We have previously found that “[a]lthough the physical intrusion involved in drawing blood infringes upon an individual‘s expectation of privacy, the intrusion is reasonable in light of the need to ensure public safety.” JV-512600 and JV-512797, 187 Ariz. at 423, 930 P.2d at 500 (upholding the constitutionality of
¶ 28 Additionally, there exists a legitimate governmental interest in obtaining identification from arrested persons. See Jones, 962 F.2d at 306 (“[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.“). Although the juveniles allege that such identification can be achieved through fingerprints, DNA is a more precise method of identification than fingerprinting. See Sczubelek, 402 F.3d at 185-86 (“The governmental justification for [DNA testing] ... relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods“).
¶ 29 In a recent challenge to the federal DNA Act, the Third Circuit Court of Appeals found that, under the Act, DNA collection was reasonable and did not violate the Fourth Amendment because “arrestees have a diminished expectation of privacy in their identities.” Mitchell, 652 F.3d at 390; see
[i]n light of [a] probable cause finding, arrestees possess a diminished expectation of privacy in their own identity, which has traditionally justified taking their fingerprints and photographs. Likewise, because DNA profiles developed pursuant to the DNA Act function as “genetic fingerprints” used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample.
¶ 30 In sum, the finding of probable cause to believe that a juvenile has committed one of the offenses included in
Equal Protection
¶ 31 The federal and state constitutions provide for equal protection for those who are similarly situated. See
¶ 32 The State argues that
¶ 33 We apply the rational basis test because
¶ 34 In Martin, this court rejected an argument that the Sexually Violent Persons Act was too narrowly drawn because it did not apply to all sexually violent persons. Id. at 312, ¶¶ 59, 61, 987 P.2d at 798. The Act permitted the state to confine persons found guilty of violent sexual acts, or persons charged with committing such crimes but found incompetent to stand trial, only if the person suffered from a mental disorder that made them more likely to engage in sexual acts. Id. at 299, ¶ 2, 987 P.2d 785. Petitioners argued that the statute did not cover persons serving long terms in prison, those already released from prison, or those persons whom the state chose not to prosecute. Id. at 312, ¶ 59, 987 P.2d at 798. Citing Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 274-75, 60 S.Ct. 523, 84 L.Ed. 744 (1940), this court noted that such an “all or nothing” argument had been rejected by the U.S. Supreme Court. Id. at ¶¶ 60-61; see also City of Tucson v. Wolfe, 185 Ariz. 563, 565, 917 P.2d 706, 708 (App.1995) (“The relevant inquiry ... is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the [legislative body] is within constitutional limitations.” (quoting Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 465, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981))). This court concluded that merely because “the Act does not extend to every person who might be [a sexually violent person] does not remove every rational basis for its existence.” Martin, 195 Ariz. at 312, ¶ 61, 987 P.2d at 798.
¶ 35 “A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.”
¶ 36 For example, a DNA sample could assist law enforcement in identifying repeat burglars who have left physical evidence at a crime scene. Further, along with the sexual misconduct violations included within
CONCLUSION
¶ 37 For these reasons, I conclude that
¶ 38 For the two juveniles, Bailey and Devon, who have been arrested or accused but for whom there has been no judicial finding of probable cause to believe that the juveniles have committed the offenses for which they are charged, evaluating the totality of the circumstances leads me to the opposite result. Without the watershed event of a judicial finding of probable cause, I conclude that application of
¶ 39 The issue in this case is whether the State, pursuant to
Operation of A.R.S. § 8-238
¶ 40 In short,
¶ 41 The statute prescribes that upon failure to comply with DNA testing, “the court shall revoke the juvenile‘s release.”
¶ 42 Before a juvenile can be detained, he or she is entitled to a judicial probable cause determination. If the juvenile is not being detained but refuses DNA testing, the court shall revoke the juvenile‘s release, in turn triggering the juvenile‘s right to a probable cause determination. In both cases, if no probable cause exists, the juvenile shall be released from detention as well as any obligation to submit to DNA testing. If probable cause is found, then detention and/or DNA testing are justified. Thus, there is no instance where a juvenile may be compelled to submit to DNA testing without first receiving a judicial determination that there is probable cause to detain the juvenile on the offense charged.
¶ 43 As such,
Applicability of the Fourth Amendment8
¶ 44 The Fourth Amendment guards against searches and seizures that are unreasonable.
¶ 45 Indeed, “[t]he touchstone of the Fourth Amendment is reasonableness.” United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). A search is evaluated for reasonableness “under [the] general Fourth Amendment approach of ‘examining the totality of the circumstances.‘” Id. (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)). That is, “the reasonableness of a search 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 118-19 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)).
¶ 46 In this case, the State‘s relevant interests are on par with those previously identified by the Ninth Circuit: (1) utilizing the most accurate means of identification available; and (2) effective monitoring and supervising of detainees on conditional release. Kincade, 379 F.3d at 838-39. Accurate identification aids in determining whether the defendant has in the past, and consequently might in the future, further endanger society while on release, as well as ensures that the defendant will be returned to incarceration upon violation of the terms of release. See id.
¶ 47 The permissible uses of DNA information to serve these interests are limited by
¶ 48 As a predicate to evaluating the degree of intrusion on the defendant‘s privacy, it must first be determined to what extent the defendant has an expectation of privacy in his or her DNA. The Ninth Circuit has stated, and Arizona‘s case law suggests, that “conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public.” Kincade, 379 F.3d at 833; see, e.g., State v. Kessler, 199 Ariz. 83, 88, ¶ 20, 13 P.3d 1200, 1205 (App.2000) (“[A] probationer is subject to restriction of his constitutional rights to a greater degree than would be permissible outside the criminal-justice system.“). Similarly, juvenile detainees, for which an impartial magistrate has determined there is probable cause for detention, do not have an expectation of
¶ 49 In view of this diminished expectation of privacy, my next task is to evaluate the intrusiveness of the DNA extraction, as well as the nature of the information gathered as a result of the extraction. It is well-established that the physical intrusion of DNA testing is minimal. See, e.g., Skinner v. Ry. Labor Executives’ Ass‘n, 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“[T]he intrusion occasioned by a blood test is not significant“). Despite the minimal invasiveness of the procedure itself, the nature of the information DNA testing reveals has the potential to be much more intrusive. However, DNA testing pursuant to
¶ 50 A juvenile whose detention has been judicially scrutinized for probable cause has no right of privacy in his or her identity. See Kincade, 379 F.3d at 837 (“once lawfully arrested and booked into state custody,” one “can claim no right of privacy” in his or her identity). While the information DNA testing yields is more personal than taking fingerprints, given the juvenile‘s diminished expectation of privacy and the limitations statutorily imposed on the DNA‘s use, such DNA extraction is not so intrusive as to outweigh the State‘s countervailing interests in accurate identification and safeguarding the public from juvenile defendants released from detention.
¶ 51 It is my opinion that
¶ 52 Moreover, this case does not present specific facts of DNA misuse. For purposes of this case, I would simply note that there are procedural safeguards in place to prevent any misuse from occurring. That is, genetic information obtained illegally, i.e., without legislative authorization or in violation of a defendant‘s constitutional rights, would be barred from admissibility in court. Likewise,
¶ 53 Law enforcement officers are allowed to use fingerprinting to ascertain a detainee‘s identity; similarly, they should be allowed to use DNA testing—a more accurate means of identification—to accomplish the same objective. This should be true regardless of the fact that there is the potential to access more information than merely the detainee‘s identity. That the danger of misuse exists does not mean it is significant enough to abrogate the State‘s legitimate interest in the most accurate identification possible.
¶ 54 Thus, given its prescribed use, the juvenile‘s DNA is, in practicality, a genetic fingerprint and the minimal intrusiveness imposed by the procedure is justified by balancing the State‘s interests against the diminished privacy interests of the juvenile. On balance, in my view, the State‘s interests outweigh the burden to a juvenile detainee‘s diminished expectation of privacy.
¶ 55 The juvenile in this case suggests DNA information might be abused and we should therefore remain suspicious of allowing its possession by the State; however, we need not place our trust in the State to
NORRIS, Presiding Judge, dissenting in part, but concurring in the result as to the two juveniles.
¶ 56 The issue in this appeal is whether the State may seize a DNA sample from a juvenile arrested for an offense listed in
¶ 57 With respect, I disagree with the majority‘s conclusion these seizures pass constitutional muster under the Fourth Amendment.11 These seizures are not part and parcel of “routine” booking procedures, like fingerprinting, and, consequently, of little constitutional significance. Unlike fingerprinting, DNA sampling provides the State with a storehouse of information about an individual—information the State is not entitled to seize when, as here, the juveniles have not been convicted, are entitled to the presumption of innocence, and the State has failed to justify why it is entitled to invade the reasonable expectations of privacy the juveniles have in their DNA.
¶ 58 At the time of the juveniles’ advisory hearings,
¶ 59 Under modern Fourth Amendment jurisprudence, whether a search has occurred depends on whether a person has a “reasonable” or “legitimate” expectation of privacy invaded by government action. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). This inquiry breaks down into two questions: first, whether the individual has “‘exhibited an actual (subjective) expectation of privacy,‘” that is, has sought to preserve something as private; and second, whether the individual‘s subjective expectation of privacy is “one that society is prepared to recognize as reasonable,” that is, the individual‘s expectation, viewed objectively, is justifiable under the circumstances. Id. (quoting Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967), and id. at 361, 88 S.Ct. at 516 (Harlan, J., concurring)).
¶ 60 The majority recognizes a buccal swab or blood draw to obtain a DNA sample constitutes a search under the Fourth Amendment. See supra ¶ 18 (lead opinion), ¶ 44 (concurring opinion). I agree. Indeed, under well established United States Supreme Court and Arizona case law, this is not open to question. See generally Schmerber v. California, 384 U.S. 757, 767-70, 86 S.Ct. 1826, 1834-35, 16 L.Ed.2d 908 (1966) (recognizing heightened privacy interests with respect to “intrusions beyond the body‘s surface“); Maricopa Cnty. Juv. Action No. JV-512600 and JV-512797, 187 Ariz. 419, 423, 930 P.2d 496, 500 (1996) (upholding state statutes that required mandatory DNA testing of juveniles adjudicated of certain delinquent offenses).
¶ 61 As the majority also recognizes, a search conducted without a judicially approved warrant is normally considered per se unreasonable under the Fourth Amendment, subject to certain exceptions, such as the one at issue here, the “totality of the circumstances test.” Under that test, we must balance the degree the search intrudes upon an individual‘s reasonable expectation of privacy against the degree the search is needed to promote legitimate government interests. See generally Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Although I agree with the majority we should analyze the seizures here under this test, the majority has misapplied the test by finding the juveniles have little if any expectation of privacy in their DNA because they have been arrested and a court has found probable cause to hold them for trial. See supra ¶¶ 28-30 (lead opinion), and ¶ 48 (concurring opinion).
¶ 62 The United States Supreme Court has held individuals may be searched as a condition of release under the totality test, but only after they have been convicted of a crime. Id. at 852, 126 S.Ct. at 2199 (upholding warrantless search of parolee); United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001) (upholding warrantless search of probationer). In so holding, the Court has explained it is the conviction that “informs both sides of [the totality test] balance.” Knights, 534 U.S. at 119, 122 S.Ct. at 591. Discussing probation, the Court has explained: “[P]robation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.... Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled” Id. (internal citations and quotation marks omitted). See also United States v. Kincade, 379 F.3d 813, 834 (9th Cir.2004) (upholding mandatory DNA sampling under a federal statute that requires individuals who have been convicted of certain crimes and are incarcerated or on parole, probation, or supervised release):
[The] transformative changes wrought by a lawful conviction and accompanying term
of conditional release are well-recognized by the Supreme Court, which often has noted that conditional releasees enjoy severely constricted expectations of privacy relative to the general citizenry—and that the government has a far more substantial interest in invading their privacy than it does in interfering with the liberty of law-abiding citizens.
(internal citations omitted).
¶ 63 Thus, under the totality test, it is a conviction that results in the lowered privacy interest. But here the juveniles have not been convicted of the charged offenses and have not lost the presumption of innocence or their right to demand the State prove the charges against them beyond a reasonable doubt.
¶ 64 The majority ignores the absence of any of the “transformative changes wrought by” a conviction and holds a judicial finding of probable cause that the juveniles committed the charged offenses will work in lieu of a conviction. As the lead opinion puts it, a judicial finding of probable cause is the “watershed event” that distinguishes the juveniles from mere arrestees and diminishes their reasonable expectations of privacy so that under the totality of the circumstances test the taking of the DNA samples is constitutionally permissible. See supra ¶ 22 (lead opinion). Thus, as the majority sees it, probable cause equals diminished privacy and the balance of interests tips in favor of the State. The lead opinion rests its conclusion that probable cause equals diminished privacy on the point that juveniles on release status are typically subjected to a number of routine restrictions and DNA sampling is no more intrusive than these restrictions, while the concurring opinion emphasizes that the taking of a DNA sample is analogous to fingerprinting and amounts to nothing more than another routine restriction on a juvenile as a condition of release. With respect, I disagree with each point. See supra ¶¶ 22-23 (lead opinion) and ¶¶ 51, 53-54 (concurring opinion).
¶ 65 Although a juvenile charged with an offense can properly be subjected to various routine restrictions that circumscribe or limit his or her freedom, the notion that DNA sampling is no more intrusive than these restrictions is flawed for two reasons. First, the routine restrictions identified by the lead opinion are wholly different in kind from a physical intrusion into a juvenile‘s body to obtain a DNA sample. To suggest they are essentially the same flies in the face of common sense and controlling legal authority, including the United States Supreme Court‘s decision in Schmerber.
¶ 66 There, police had probable cause to arrest the defendant and charge him with driving an automobile under the influence. But, those considerations by themselves did not permit the police to search him—through a blood draw—incident to his arrest. The Court stated that considerations that ordinarily permit a search of a defendant incident to an arrest
have little applicability with respect to searches and bodily intrusions beyond the body‘s surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.
384 U.S. at 769-70, 86 S.Ct. at 1835. See also State v. Barnes, 215 Ariz. 279, 280-81, ¶ 7, 159 P.3d 589, 590-91 (App.2007) (citing Schmerber; defendant‘s arrest does not obviate need for warrant to conduct search beyond the body‘s surface).
¶ 67 Schmerber and cases like it stand for a critical point: probable cause to arrest a person for a crime by itself does not diminish a person‘s reasonable expectation of privacy. And similarly, a judicial finding of probable cause to hold a juvenile to answer for a criminal offense does not do so either. As explained by the court in In the Matter of the Welfare of C.T.L., 722 N.W.2d 484, 490-91 (Minn.Ct.App.2006):
But, just as in Schmerber, where the existence of probable cause to arrest the defendant was not sufficient to permit an
intrusion into his body without a warrant, a determination of probable cause to support a criminal charge, even if it is made by a judge, is not sufficient to permit a biological specimen to be taken from the person charged without a warrant. The fact that a judge has determined that the evidence in a case brings a charge against the defendant within reasonable probability does not mean that the judge has also determined that there is a fair probability that contraband or evidence of a crime will be found in a biological specimen taken from the defendant.
¶ 68 Further, the routine restrictions identified by the lead opinion are wholly different in scope to the additional invasion of privacy that happens after the DNA sample is tested and analyzed and a profile is extracted for inclusion and use in the Arizona DNA Database and in the NDIS.
The search in question, however, constitutes far more of an intrusion than the mere insertion of a needle into an individual‘s body and the consequent extraction of the blood sample. In prior cases dealing with the level of intrusion authorized by the taking of blood samples, courts did not confront a regime in which the samples were turned into profiles capable of being searched time and time again throughout the course of an individual‘s life.... The startling advance of technology has magnified the power of the initial search ... such that the invasion of privacy is vastly more significant than we might have previously assumed.
Kincade, 379 F.3d at 867 (Reinhardt, J., dissenting). See also United States v. Mitchell, 652 F.3d 387, 407 (3d Cir.2011) (collection of DNA is first search; second search is processing of the DNA sample and creation of DNA profile for inclusion in national database); United States v. Amerson, 483 F.3d 73, 85 (2d Cir.2007) (“second and potentially much more serious invasion of privacy” caused by analysis and maintenance of profile information in federal DNA database); People v. Buza, 129 Cal.Rptr.3d 753, 760 (Cal.Ct.App.2011) (collection of DNA sample is only the first part of the search; second part occurs when the DNA sample is analyzed and profile created for use in state and federal DNA databases).
¶ 69 DNA sampling is also not analogous to fingerprinting and DNA sampling presents a level of intrusiveness not presented by fingerprinting.
¶ 70 A fingerprint is an impression “left by the depositing of oil upon contact between a surface and the fission ridges of fingers.” United States v. Mitchell, 365 F.3d 215, 221 (3d Cir.2004). A fingerprint only identifies the person who left it. United States v. Mitchell, 681 F.Supp.2d 597, 608 (W.D.Pa.2009), rev‘d 652 F.3d 387 (3d Cir.2011). Although DNA, like fingerprinting, can be used to identify a person, that is where the comparison ends. A DNA sample contains personal information that goes far beyond a fingerprint. Unlike a fingerprint, “DNA stores and reveals massive amounts of personal, private data about that individual” and “unlike DNA, a fingerprint says nothing about the person‘s health, propensity for particular disease, race and gender characteristics, and perhaps even propensity for certain conduct.” Kincade, 379 F.3d at 842 n. 3 (Gould, J., concurring).
¶ 71 Fingerprinting as a routine booking practice came before modern Fourth Amendment “reasonable expectation of privacy” jurisprudence. Police fingerprinted and obtained other identifying information, such as mug shots, from arrestees free from Fourth Amendment concerns because law enforcement needed to confirm the “true identity” of the individual. David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol‘y 455, 485-88 (2001). See generally United States v. Kelly, 55 F.2d 67, 69 (2d Cir.1932):
Finger printing seems to be no more than an extension of methods of identification long used in dealing with persons under arrest ... and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.
¶ 72 That today we accept fingerprinting as a routine practice without Fourth Amendment implications does not mean we must
¶ 73 Finally, the view that the DNA sampling required by
¶ 74 Accordingly, I disagree with the majority‘s conclusion the juveniles have a diminished expectation of privacy in their DNA merely because they were arrested and the juvenile court found probable cause to hold them for trial.14
¶ 75 That then brings me to the State‘s interests in obtaining the DNA samples. According to the State, its interests outweigh the privacy rights of the juveniles because it can use the DNA samples to access databases that, in turn, would help it determine, first, the juveniles’ identities, and second, their involvement in past and future criminal activities.
¶ 76 As to the first point, the State has raised no issue about the identity of the juveniles, and more telling, has presented no facts it has experienced significant difficulties—or indeed any difficulties—in determining the identity of arrested juveniles without resort to these databases. Further, the State‘s assertion a DNA sample taken on arrest can be used to ascertain the identity of the arrestee—a point the majority accepts—is not even necessarily true, as discussed above. See supra ¶ 73. Further, by itself, DNA provides no identifying information; a DNA sample is only useful when it can be compared to a prior DNA sample obtained from the same person. If the arrestee‘s DNA is not in a DNA database, there can be no comparison and thus no verification of identity.
¶ 77 And, as to the second point, the State‘s interest in investigating criminal offenses rests on “the assumption [that a person arrested and accused of a crime is] more likely to commit crimes than other members of the public, without an individualized determination to that effect.” United States v. Scott, 450 F.3d 863, 874 (9th Cir.2006). That assumption
¶ 78 To be sure, I recognize there may well be situations when the State‘s interests will outweigh an arrestee‘s privacy interests to his or her DNA. Cf. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1984) (visual inspection of body cavities for contraband without warrant reasonable under Fourth Amendment; “detention facility is a unique place fraught with serious security danger“). But, the State has failed to make that showing here.
¶ 79 In arguing its interests outweigh the interests of the juveniles in their own DNA, the State argues, and the majority agrees, DNA sampling either through a buccal swab or blood draw is a minimally invasive procedure. But, the hard Fourth Amendment issue here is not how the State obtains the DNA sample but whether the State is entitled to have the magnitude of the personal information it reveals without a warrant.
¶ 80 Now, to be fair, several of the cases relied on by the majority point out that although DNA samples contain a vast array of personal information, the resulting DNA profiles are created from what is essentially a subset of the sample known as “non-coding” or “junk DNA” which is not generally recognized as being responsible for trait coding. See, e.g., Kincade, 379 F.3d at 818.15 According to these and other cases, because only “junk DNA” is used to create the DNA profile, no meaningful personal genetic information ends up in a DNA database, and thus, the severity of the intrusion into the privacy of the person giving the sample is minimal. Id. at 838 (“As currently structured and implemented ... the [federal DNA testing statute requiring] compulsory profiling of qualified federal offenders can only be described as minimally invasive—both in terms of the bodily intrusion it occasions, and the information it lawfully produces.“). This reasoning, however, ignores the extent of the search that has taken place:
[T]he Government has taken, searched, and retained rich, privacy-laden DNA in the sample. The majority‘s focus on the Government‘s use of that DNA as the controlling privacy consideration is simply misguided. It is akin to saying that if the Government seizes personal medical information about you but can only use a subset of that information that serves to identify you, your privacy interest in the information taken is confined to a mere interest in your identity. Nothing could be further from the truth, and the majority engages in sleight of hand by suggesting otherwise.
Mitchell, 652 F.3d at 424 (Rendell, J., dissenting).16
¶ 81 Finally, in my view, the majority‘s approach to the Fourth Amendment will “contribute to the downward ratchet of privacy expectations” and lead to the erosion of Fourth Amendment protections. Scott, 450 F.3d at 867. As Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals has written:
Not only do [Fourth Amendment opinions] reflect today‘s values by giving effect to
people‘s reasonable expectations of privacy, they also shape future values by changing our experience and altering what we come to expect from our government. A highly expansive opinion [authorizing a warrantless search], one that draws no hard lines and revels in the boon that new technology will provide to law enforcement, is an engraved invitation to future expansion. And when that inevitable expansion comes, we will look to the regime we approved today as the new baseline and say, this too must be OK because it‘s just one small step beyond the last thing we approved.
Kincade, 379 F.3d at 873 (dissenting opinion).
¶ 82 For the foregoing reasons, I therefore disagree with both the lead and concurring opinions that the State‘s seizure of the DNA samples from the five juveniles is constitutional under the Fourth Amendment and would grant the relief they have requested. I concur in the result but not the analysis of the lead opinion as to the two juveniles and join the lead opinion in setting aside the juvenile court orders requiring them to submit DNA samples under