Lead Opinion
delivered the opinion of the court:
Aftеr a bench trial, defendant Jacob Ramos was convicted of residential burglary and was sentenced to 16 years in prison. Defendant now appeals, arguing that his sentence was excessive, that he received a disproportionately long sentence as compared to a similarly situated codefendant, and that the compulsory extraction and perpetual storing of his DNA violated his fourth amendment right to be free from unreasonable searches and seizures. For the reasons that follow, we affirm the defendant’s conviction and sentence as well as the constitutionality of section 5 — 4—3(a)(3.5) of the Unified Code of Corrections (730 ILCS 5/5-^4 — 3 (West 2002)).
On June 21, 2002, Chicago police officer Del Rivero and his partner, Officer Haran, were assigned to investigate numerous burglaries that had occurred near Damen Street and Wood Street in Chicago, Illinois. That day, Officer Del Rivero conducted surveillance on the street while Officer Haran was in an unmarked car a few blocks away. At approximately 2:50 p'.m., Officer Del Rivero noticed the defendant acting suspiciously in front of a residence at 902 Winchester Street. Apparently, the defendant was looking in all directions, up and down, when the codefendant walked out of a gangway between the buildings at 900 and 902 Winchester. Defendant and Gonzalez had a short conversation and then proceeded to ring the doorbells of the units in 902 and 904 Winchester.
At that point, Officer Del Rivero noticed the defendant and codefendant walk to the rear of 902 Winchester. Gonzalez then appeared in the gangway with a toolbox in his hand, and he placed it on its side below a windowsill of the 902 Winchester building. Using the toolbox as a stair, Gonzalez balanced himself on the windowsill, and defendant boosted Gonzalez up toward the windowsill. Gonzalez then forced the window open with his hands and entered the first-floor apartment.
From nearly 60 feet away, Officer Del Rivero then watched the defendant walk to the front door of the first floor of 902 Winchester and proceed through the door, which Gonzalez had opened from the inside. After two to three minutes in the apartment, the defendant and Gonzalez exited the building and walked north on Winchester. Defendant was holding an Aldi shopping bag. At that point, Officer Del Rivero contacted another enforcement officer and gave him a description of the defendant and Gonzalez. After the enforcement officer and Officer Haran stopped and detained the defendant and Gonzalez, they searched the Aldi bag and retrieved several items, including two white vases.
After the victim had returned home, he verified to police that his apartment was not in the same order as he had left it that morning. He also verified that several items were missing and was later able to confirm that the items recovered from the Aldi bag were taken from his apartment. Some of the items, however, were never recovered. The victim had never met the defendant or Gonzalez and did not grant them рermission to enter his apartment.
In light of the evidence, the trial court found the defendant guilty of residential burglary and sentenced him to 16 years in prison. At the time of the sentencing, the State asked the court to order defendant to produce a blood sample for forensic DNA testing. Defendant did not object, and on May 20, 2003, the court granted the State’s motion. The defendant now appeals his sentence and the order to produce.
Defendant’s first argument on appeal is that his sentence of 16 years for residential burglary is excessive in light of his personal history, the particular circumstances of the offense, and his strong rehabilitative potential. We note that Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) grants a reviewing court the authority to reduce a sentence imposed by the trial court if the reviewing court finds that the trial court abused its discretion in imposing the sentence. People v. Perruquet,
The defendant was sentenced as a Class X offender pursuant to section 5 — 5—3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5 — 5—3(c)(8) (West 2002)), which states, in pertinent part:
“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class 2 or greater Class felony and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender.” 730 ILCS 5/5 — 5—3(c)(8) (West 2002).
Any defendant convicted of a Class X felony faces a sentence of a minimum of 6 years’ to a maximum of 30 years’ imprisonment. 730 ILCS 5/5 — 8—1(a)(3) (West 2002). Here, because the defendant had eight prior felony convictions, the trial court was required to sentence him as a Class X offender. Nevertheless, defendant argues that the trial court erred in failing to consider several factors in mitigation.
First, defendant argues that because he neither caused nor contemplated that his action would cause bodily harm during the time of the offense, the trial court should have provided a reduced sentence. For this, he notes that the offense occurred at approximately three in the afternoon after he and his codefendant first rang the apartment’s doorbell to ensure nobody was present. He also notes that when he was captured, neither he nor his codefendant was armed nor did they attempt to flee or resist arrest. In that vein, he also notes that none of his prior convictions were violent or drug-related.
Next, he argues that the trial court failed to take into account his background. In support of that argument, defendant alleges that his extended imprisonment would entail a hardship on his dependents, since, prior to the arrest, he was earning $14.42 per hour plus commission as a salesman. In addition, he claims that he was soon to have been promoted to the position of warehouse manager by his employer, Mr. Cheeks, who would hire him upon release from prison. He also notes that his incarceration could endanger his medical condition, as he is HIV positive.
Third, defendant claims that the trial court failed to consider his strong rehabilitative potential, in that he has earned his GED, completed 117 college credits at various junior colleges through the Department of Corrections, obtained a certificate of culinary arts, and is two credits short of earning an associate’s degree in digital electronics. In addition to his education, the defendant states, he worked at El Meson, a rehabilitative facility for alcohol and drug abusers. There, defendant notes, he taught Bible study and was instrumental in saving a program that helps ex-offenders find jobs, secure housing, and get an education.
Looking at the totality of this mitigating evidence, defendant then draws attention to this court’s decision in People v. Center,
Likewise, in the present case, defendant argues that the only aggravating factor is his prior criminal history and that he possesses a “substantial amount of mitigating factors.” Defendant concludes that where his prior adult record contains only nonviolent offenses and where he has taken affirmative steps with his education and his career and where he has served as a positive influence upon other ex-offenders and addicts, his 16-year sentence does not conform with the spirit or purpose of the law We disagree.
In determining a sentence, a trial court must analyze the acts constituting the crime and a defendant’s credibility, demeanor, general moral character, mentality, social environments, habits, age, and potential for rehabilitation. People v. Steffens,
As previously mentioned, the defendant here was required to be sentenced as a Class X offender because he was over 21 years old, the conviction in this case was a Class 1 felony, and the defendant had been convicted of at least two prior Class 2 felonies. 730 ILCS 5/5— 5 — 3(c)(8) (West 2002). We note that where the sentencing range for a Class X offender is between 6 and 30 years (730 ILCS 5/5 — 8—1(a)(3) (West 2002)), defendant’s sentence of 16 years was well within the statutory range.
In that regard, we find it irrelevant that the circumstances of this offense or any of his previous offenses were nonviolent and non-drug-related. Indeed, section 5 — 5—3(a)(8) of the Unified Code of Corrections does not require that any offense be violent or drug-related in nature. 730 ILCS 5/5 — 5—3(a)(8) (West 2002). In any event, we are to presume the trial court considered those details in making its final calculation of the defendant’s sentence. Burnette,
In addressing whether the trial court erred in failing to consider the defendant’s background in imposing his sentence, we note that it is well established that a trial court “need not articulate the process by which it determines the appropriateness of a given sentence.” People v. Wright,
As to the trial court’s alleged disregard for defendant’s rehabilitative potential, we note that seven of the defendant’s eight prior convictions involved a burglary, robbery, or a theft. As the State points out, in 1989 alone, the defendant was convicted of residential burglary three times. Clearly, where a defendant’s potential for rehabilitation can be gleaned in part by his criminal history (People v. Coleman,
Defendant’s reliance on Center fares no better. The comparative sentence approach has been denounced roundly as fundamentally flawed in People v. Fern,
In this case, the only similarity between the defendant and the defendant in Center is the nonviolent nature of their crimes. In Center, the defendant was 23 years old, he burglarized a closed laundromat, he acted only as lookout, there were no proceeds, and he had only two prior convictions. Here, the defendant was 42 years old, he burglarized a home rather than a business, he actively entered the home while committing the crime, and he had eight prior felony convictions as opposed to two. Thus, as the circumstances surrounding the defendant in Center and the defendant in the present case are actually very dissimilar, defendant’s reliance upon the comparative sentence approach (by way of Center) also fails.
Defendant next argues that his 16-year sentence should be reduced because it is unsuitably disparate compared to the 7-year sentence received by his codefendant, Gonzalez. Fundamental fairness and respect for the law require that defendants who are similarly situated should not receive grossly disparate sentences. Fern,
For example, defendant notes that both he and Gonzalez have extensive criminal backgrounds. Gonzalez’s prior adult convictions include robbery, aggravated battery, and possession of a controlled substance. These offenses were committed in 2001, for which he received 30 months’ probation. In 1998, Gonzalez was convicted of domestic battery, and the one-year conditional discharge he received for that offense was revoked. Further, in 1994, Gonzalez was convicted of another charge of possession of a controlled substance and received probation. He later violated that probation and was sentenced to 42 days’ imprisonment.
Defendant acknowledges that he also has several prior convictions: a 1979 burglary conviction, a 1979 robbery conviction, a 1985 residential burglary conviction, three 1989 burglary convictions, a 1996 retail theft conviction, and a 1996 possession-of-a-controlled-substance-with-intent-to-deliver conviction. However, while he concedes that his criminal history is more extensive than Gonzalez’s, he notes that he was never convicted of a violent offense, such as domestic battery. Accordingly, he concludes that even if his criminal history justifies a longer sentence, it cannot account for the gross disparity between the sentences.
Defendant also argues that he has demonstrated a much stronger potential for rehabilitation than Gonzalez. For example, where defendant has shown that he has taken affirmative steps with his education and his career (such as the 117 college credits at various colleges, that he is 2 credits away from receiving an associate’s degree in digital electronics, and that he has secured a job at Mr. Cheeks’s warehouse upon release) and has served as a positive influence upon other ex-offenders and addicts (such as teaching Bible study and saving a program that helps ex-offenders find jobs), the only mitigating evidence that Gonzalez provided was that he was a drug addict. In fact, defendant notes, Gonzalez, a high school graduate, provided no evidence that he had made any contribution to society or has secured any definite employment upon release from prison.
Finally, defendant argues that there was no evidence that he was the principal offender or played a greater role in the offense than Gonzalez to justify a disparate sentence. Rather, defendant notes that the evidence presented at trial shows that both defendants participated equally in the offense, as both helped each other enter the building and participated in the burglary. And because, defendant asserts, both offenders were equally culpable, a disparate sentence was not warranted.
As noted above, a trial court’s judgment as to an appropriate offense is entitled to great deference and will not be altered on review absent a showing that the punishment imposed constitutes a clear abuse of discretion. Beals,
In reviewing the respective defendant’s criminal background, the only similarity we discern is that both individuals had prior convictions. However, it is undisputed that the defendant’s record includes convictions for.eight prior felonies and four misdemeanors, whereas the codefendant’s includes four felony convictions and one misdemeanor. And while it is true that the defendant was involved in activities which might normally be considered to be indicative of rehabilitative potential, the fact that he constantly eschewed those activities and support for criminal activity indicates that defendant had little potential for rehabilitation — much like the codefendant. Accordingly, we find it entirеly reasonable for the trial court to have judged the circumstances surrounding each individual to be entirely dissimilar. Quite simply, the raw numbers reveal that the defendant was convicted of 12 crimes, where the codefendant was convicted of 5. Accordingly, in light of the fact that there is ample evidence to suggest that the codefendants are not similarly situated, we find that defendant has failed to satisfy a necessary requirement to reduce a disparate sentence under Cooper. Given the great deference with which we are to review the trial court’s decision, we affirm the trial court’s imposition of defendant’s 16-year sentence.
Defendant’s last argument challenges the trial court’s grant of the State’s motion to produce a DNA sample. Specifically, In asserts that section 5 — 4—3 of the Code of Corrections (730 ILCS 5/5 — 4—3 (West 2002)) is unconstitutional for violating his fourth amendment right to be free from unreasonable sear Ates and seizures.
“Any person *** convicted or found guilty of any offense classified as a felony under Illinois law *** shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section, provided such person is:
* * *
(3.5) [Clonvicted or found guilty of any offense classified as a felony under Illinois law or found guilty or given supervision for such an offense under the Juvenile Court Act of 1987 on or after [August 22, 2002.]” 730 ILCS 5/5 — 4—3(a)(3.5) (West 2002).
The fourth amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.” U.S. Const., amend. IV As the defendant notes, the United States Supreme Court has held repeatedly that blood extractions are searches for the purposes of the fourth amendment and, therefore, are subject to the normal fourth amendment requirements. See Skinner v. Ry. Labor Executives’Ass’n,
Defendant correctly notes that because a constitutional challenge to a criminal statute may be raised at any time, he has not waived review of this issue despite his raising it for the first time on appeal. People v. Bryant,
Defendant’s challenge to section 5 — 4—3(a)(3.5)’s constitutionality is twofold. Initially, he notes that the United States Supreme Court has clarified that the fourth amendment prohibits nonconsensual, warrantless and suspicionless searches into a person’s body or home unless the purpose of the search serves a “special need” beyond general law enforcement. See City of Indianapolis v. Edmond,
For example, defendant notes that in Edmond, in examining the constitutionality of a practice of the Indianapolis State Police to stop a predetermined number of vehicles at checkpoints, the Court emphasized that in “none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Edmond,
In light of these decisions, defendant asserts, the mandatory extraction of his blood, without individualized suspicion, violates the fourth amendment because the purpose of taking his blood was not for any “special need” beyond general law enforcement.
Alternatively, defendant argues that even if we reject the “special needs” approach in favor of balanсing the degree to which the search intrudes on an individual’s privacy interests against the degree to which the search is needed to promote legitimate government interests, the search here was not reasonable. By way of contrast, defendant notes the Second District’s decision in People v. Wealer,
However, defendant notes, in Wealer, the court emphasized that there was no risk that the DNA statute would be applied in an arbitrary or oppressive fashion because its application was uniformly applied to sex offenders. Wealer,
Furthermore, in analyzing the degree to which section 5 — 4— 3(a)(3.5) advances the State’s interests by taking blood samples of nonviolent property offenders — such as the defendant — without their consent, the defendant asserts that the interests asserted in Wealer do not apply because the defendant here is not a sex offender. In short, defendant claims, the State has no compelling interests regarding nonviolent nonsexual offenders (like himself) because our society does not consider those offenders to be as heinous as sex offenders. Moreover, in the context of sexual and violent crimes, he argues that a perpetrator is likely to leave DNA evidence on the scene or on the victim because those crimes involve bodily fluids such as semen or blood. Therefore, in those instances, there is a reasonable likelihood that a convicted sex offender’s DNA sample may be used to solve future sex crimes. However, in the context of a nonviolent property offense, such as in the case at bar, defendant asserts that “there is virtually no chance that DNA evidence would be involved in the investigation or prosecution of similar cases in the future.” Accordingly, because the likelihood of law enforcement using that person’s DNA to solve future nonviolent property cases is extremely remote, defendant claims that the forced extraction of his DNA fails to reasonably advance the State’s interests.
Finally, defendant argues that the degree of the intrusion of a DNA extraction upon his privacy rights is great, where it has been held that blood extraction for DNA genetic pattern analysis fundamentally differs from less intrusive searches as fingerprinting and therefore commands more constitutional protection. Blood extraction, defendant argues, requires penetrating a person’s skin and withdrawing bodily fluid, while fingerprinting merely records physical attributes that are generally exposed to public view and “represents a much less serious intrusion upon personal security than other types of searches and detentions.” Hayes v. Florida,
The defendant concedes that his status as a prisoner may “slightly” reduce his expectation of privacy, but he argues that convicted prisoners do not forfeit their constitutional protections by reason of their conviction. Bell v. Wolfish,
The Second District has already entertained and rejected the very same claims made by the defendant in People v. Garvin,
In making those determinations, the Garvin court observed, the foregoing courts have indeed taken two approaches in their fourth amendment analyses, those being the balancing test and the special needs test. Garvin,
“[I]t is beyond dispute that the State has a strong interest in deterring and prosecuting recidivist criminal acts. In re Robert K.,336 Ill. App. 3d 867 , 871 (2003); Wealer,264 Ill. App. 3d at 17 . Section 5 — 4—3 of the Code of Corrections is closely related to this interest. Mandatory DNA testing of convicted felons is a precise technological method of identifying and eliminating potential suspects. Robert K.,336 Ill. App. 3d at 871 ; Wealer,264 Ill. App. 3d at 17 . DNA identification has been likened to a fingerprint. See Landry v. Attorney General, 429 Mass. [336,] 346-47, 709 N.E.2d [1085,] 1092 [(1999)]. While some differences exist, they are both identity markers. DNA is more conclusive and ‘can practically guarantee a 100% certain identity.’ Miller v. United States Parole Comm’n, 259 E Supp. 2d 1166, 1177-78 (D. Kan. 2003).” Garvin,349 Ill. App. 3d at 855 .
Thereafter, in analyzing the defendant’s expectation of privacy, the Garvin court noted the oft-repeated principle that convicted persons, including those people on probation, lose some rights to personal privacy that would otherwise be protected under the fourth amendment. Garvin,
Finally, the Garvin court also analyzed the relative intrusiveness of a blood extraction and noted that other courts considering fourth amendment challenges have “universally determined that a blood draw from a convicted person to gather genetic information for identification involves only a minimal intrusion. [Citation.]” Garvin,
In sum, therefore, the Garvin court found section 5 — 4—3 was not unconstitutional because: (1) the public has a significant interest in preventing recidivism and accurately determining guilt or innocence in such cases, where the identity of the person previously convicted of a crime is a state interest; (2) upon conviction of a felony, a defendant loses any realistic expectation of privacy in identifying information, such as DNA extraction, even if that information is used only for law enforcement and deterrent purposes (thereby nullifying the “special needs” test); and (3) the physical intrusion caused by such DNA tests is slight and nearly risk-free. Put another way, the court found simply that the State’s interest in deterring and prosecuting recidivist criminal acts far outweighs a convict’s diminished right to privacy and the minimal intrusion caused by the extraction.
Initially, we note that in determining whether to use the “special needs” test or the balancing test, the Garvin court simply deferred to its previous decision in Wealer and applied the balancing test without any further elaboration. Therefore, to better understand why the balancing test is the preferred approach in Illinois when considering the constitutionality of the genetic marker testing statute, we feel it necessary to examine the reasoning in Wealer.
At the outset, the Wealer court described the “special needs” test as an exception to the general rule that a search or seizure be conducted under the authority of a warrant. Wealer,
“ ‘[W]here a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.’ (Emphasis added.) National Treasury Employees Union v. Von Raab (1989),489 U.S. 656 , 665-66,103 L. Ed. 2d 685 , 702,109 S. Ct. 1384 , 1390-91.” Wealer,264 Ill. App. 3d at 11 .
However, the Wealer court recognized that the overriding number of cases which employed the “special needs” test involved instances in which the court was able to identify an administrative justification independent of a law enforcement purpose. Wealer,
Conversely, the Wealer court noted that the balancing test exception also “relies primarily on the perceived willingness of the United States Supreme Court, under certain circumstances, to relax or eliminate any requirement of probable cause or individualized suspicion where the nature of the intrusion occasioned by a particular search or seizure is minimal and the government’s interest significant. [Citations.]” Wealer,
In the end, the Wealer court opted for the balancing test, reasoning:
“[I]n the absence of a clearly articulated administrative justification independent of a law enforcement purpose, we are reluctant to extend the special needs line of cases to the present statute, which has an ostensible law enforcement purpose. Furthermore, it does not require us to identify some ‘special’ or extranormal law enforcement need ‘beyond the normal needs of law enforcement.’ ” Wealer,
In other words, the Wealer court recognized the possibility that, in some instances, the absence of a definitively defined justification for a search should not automatically render the search constitutionally invalid, such as where there exists a valid law enforcement purpose, the search somehow aids that purpose, and the search was not a size-able imposition upon the privacy rights of the individual searched. In finding those three circumstances to exist in the facts before it, the Wealer court then applied the balancing test and found that the “non-consensual extraction of blood and saliva from persons convicted of the sex offenses enumerated in section 5 — 4—3 of the Unified Code of Corrections does not offend traditional fourth amendment principles.” Wealer,
In oral аrguments in the case at bar, defense counsel argued that Garvin’s utilization of the reasoning in Wealer, in effect, contravened the intent of the United States Supreme Court in Edmond and Ferguson, where the Court utilized the “special needs” test. However, we note that nowhere in Edmond or Ferguson does the Supreme Court state that the “special needs” test should be employed to the express exclusion of the balancing test favored by both Garvin and Wealer. Moreover, we note that neither Edmond nor Ferguson condemns the suspicionless extraction of DNA of convicted felons in the absence of a “special need” separate from law enforcement concerns; Edmond dealt with random vehicle checkpoints in an effort to confiscate illegal drugs, and Ferguson dealt with whether hospitals could share pregnant women’s positive drug tests with police to quell the incidence of drug-addicted newborns.
More recently, the Supreme Court released a related decision in United States v. Knights,
In assessing the constitutionality of that search, the Supreme Court noted that “[ijnherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.” ’ [Griffin v. Wisconsin,
The Knights Court reasoned that the “special needs” test need not be used in instances where a court’s holding “rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search.” Knights,
“We do not decide whether the probation condition so diminished, or completely eliminated, Knights’s reasonable expectation of privacy *** that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion.” Knights,
In other words, the Knights Court was unwilling to find that the very fact that an individual was a probationer would allow the State to perform a suspicionless search without any individualized suspicion and, in turn, allow for a judicial assessment of the reasonableness of a probationer’s search without employing “special needs” analysis.
More recently, in People v. Lampitok,
In other words, the Illinois Supreme Court viewed Bircher’s relative expectation of privacy as a determining factor for whether the police’s search of her motel room needed to be performed attendant to some individualized suspicion to meet the rеquirements of the fourth amendment. Based on that analysis, we conclude, under Lampitok, that if a probationer has a relatively low expectation of privacy — say, as compared to the defendant in Knights — it is still entirely reasonable within the ambit of the fourth amendment for a search to be performed on that person without any individualized suspicion. But cf. Lampitok,
In the present case, therefore, we must assess the defendant’s expectation of privacy in the retention of his DNA to determine, under Lampitok, whether any modicum of individualized suspicion is necessary to extract his DNA. Making a similar determination, the Wealer court drew upon a decision of the Federal Court of Appeals for the Fourth Circuit, which likened DNA extraction to the taking of fingerprints:
“ ‘[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. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and futurе crimes. This becomes readily apparent when we consider the universal approbation of “booking” procedures that are followed for every suspect arrested for a felony, whether or not the proof of a particular suspect’s crime will involve the use of fingerprint identification. *** While we do not accept even this small level of intrusion for free persons without Fourth Amendment constraint [citation], the same protections do not hold true for those lawfully confined to the custody of the state.’ ” Wealer,
This is even made more clear by the Lampitok court’s implication that federal courts of appeals have found only warrantless suspicionless searches of a person’s body to be constitutionally reasonable, as opposed to searches of a person’s home, where “a search of a person’s home, whether consisting of one room or an entire house, cannot be characterized as a minor invasion of privacy. Chimel v. California,
Like the court in Wealer and Murray, we also think that the defendant here, as a detainee of the State, has virtually no privacy interest in the retention of his DNA. Accordingly, we conclude that the extraction of his DNA, without any individualized suspicion, could still be constitutionally reasonable under Lampitok, without having to engage in a “special needs” analysis.
Most recently, in United States v. Kincade,
“The only rational interpretation of Knights’s express reservation is that — without regard to the Court’s prior decisions in Edmond and Ferguson — it remains entirely an open question whether suspicionless searches of conditional releasees pass constitutional muster when such searches are conducted for law enforcement purposes.” (Emphasis in original.) Kincade,379 F.3d at 830 .
Thereafter, the Kincade court noted that while other circuits and states were divided on the issue of whether to employ a “special needs” analysis (Kincade,
In so holding, the Kincade court reaffirmed its decision in Rise by distinguishing both Edmond and Ferguson:
“As we have stressed, neither Edmond nor Ferguson condemns suspicionless searches of conditional releasees in the absence of a demonstrable ‘special need’ apart from law enforcement. Indeed, Ferguson explicitly distinguished itself from cases addressing the constitutionality of parole and probation searches — thus recognizing a constitutionally significant distinction between searches of conditiоnal releasees and searches of the general public, and laying the framework for a jurisprudentially sound analytic division between these two classes of suspicionless searches. See Ferguson,532 U.S. at 79 n.15,121 S. Ct. 1281 (‘[W]e agree with petitioners that Griffin is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large.’) (citing Griffin,483 U.S. at 874-75 ,107 S. Ct. 3164 ). And Knights, of course, affirmed the post -Edmond, post -Ferguson possibility that conditional releasees’ diminished expectations of privacy may be sufficient to justify the judicial assessment of a parole or probation search’s reasonableness outside the strictures of special needs analysis. Knights,534 U.S. 117 -18, 119-20 & n.6,122 S. Ct. 587 .” Kincade,379 F.3d at 832 .
In the present case, we note that two districts of this court have already upheld the constitutionality of the predecessor sex offender' statute by using a pure totality of the circumstances test. See Wealer,
Turning to the actual analysis, we note that the physical intrusion imposed by the testing mandated under section 5 — 4—3 previously has been found to be insubstantial and to pose no threat to the health or safety of the individual tested. Wealer,
Thereafter, it becomes necessary to balance the government’s interest in collecting DNA samples from potential recidivists, the degree to which section 5 — 4—3(a)(3.5) furthers that interest, and the extent to which that search intrudes on a criminal’s privacy rights.
We agree with the State that it has a legitimate interest in deterring and prosecuting criminals, as well as in establishing the identity of felony offenders where traditional methods of identification might prove otherwise inadequate or inconclusive. Moreover, in addition to solving future crimes, the DNA testing scheme is related to the State’s interest in deterring and prosecuting recidivist acts because it provides an improved technological method for identifying and eliminating potential suspects. See Garvin,
Recently, a First District decision affirmed the constitutionality of the drawing of blood pursuant to the statute and applied the balancing test as its standard. People v. Hall,
Finally, we also agree with Garvin that the privacy interest that a felony offender has in his or her identity is minimal or, at the very least, reduced. Garvin,
In the end, because we, like the courts in Wealer, Garvin, and Hall think that the extraction of a convicted felon’s DNA under section 5 — 4—3(a) (3.5) is the functional equivalent to fingerprinting — which is another minimal intrusion upon a diminished privacy interest — we hold that a warrantless and suspicionless blood extraction of Illinois felony offenders, as described in section 5 — 4—3(a)(3.5), does not violate the fourth amendment prоhibition against unreasonable searches and seizures.
For the foregoing reasons, we affirm the defendant’s conviction and sentence.
Affirmed.
Notes
In his appellate brief, defendant challenges the constitutionality of subsection (a — 5) of section 5 — 4—3. In fact, the order in which the trial court requested a sample of the defendant’s blood for DNA analysis was entered simply pursuant to section 5 — 4—3, but did not list any specific subsection therein. However, we find the language in subsection (a)(3.5) controls the facts at issue here, where subsection (a)(3.5) mandatorily charges the trial court with the duty to order all convicted felons to provide a blood sample for DNA testing. Conversely, subsection (a — 5) only permissively grants discretion to the trial court to determine whether to order a defendant to provide such a sample. Accordingly, subsection (a — 5) could only be utilized — if at all — to the total exclusion of every other mandatory subsection listed under section 5 — 4— 3(a), including section 5 — 4—3(a)(3.5). 730 ILCS 5/5 — 4—3(a)(a—5), (a)(3.5) (West 2002). Therefore, because the defendant in the case at bar is a convicted felon, and because the trial court was required to order the defendant to provide a blood sample under subsection (a)(3.5), we limit our review today to the constitutionality of section 5 — 4—3(a)(3.5). 730 ILCS 5/5 — 4—3(a)(3.5) (West 2002).
Garvin, we note, couched its holding in terms of finding all of section 5 — 4—3 to be constitutional, and did not focus upon or specify any particular subsection therein. We, however, wish to emphasize that our holding today does not cover any other section than section 5 — 4—3(a)(3.5).
Concurrence Opinion
specially concurring:
I agree with the result reached in this case, but because I would have analyzed the DNA issue differently, I specially concur.
In Justice Greiman’s opinion, he applies a totality of the circumstances analysis and a balancing test when determining whether the suspicionless search of a convicted felon to obtain his DNA ran afoul of the fourth amendment. In doing so, he relies on Wealer. The Wealer court, citing Sitz, noted that the balancing test approach “relies primarily on the perceived willingness of the United States Supreme Court, under certain circumstances, to relax or eliminate any requirement of probable cause or individualized suspicion where the nature of the intrusion occasioned by a particular search or seizure is minimal and the government’s interest significant.” Wealer,
First, I note that while the United States Supreme Court has yet to address this exact issue, many courts around the country have found the suspicionless search of a convicted felоn to obtain his DNA to be constitutional. See Garvin,
The Supreme Court has held that a search or seizure is “ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” Edmond,
In his opinion, Justice Greiman cites the recent Supreme Court case of Ferguson, but does not rely on it. While Ferguson presents a different issue from that in the present case, it involves the search of a person, as does this case, and I would follow its analysis here. In Ferguson, the Court addressed whether a state hospital’s action of testing urine samples of pregnant women for narcotics without their consent or individualized suspicion for law enforcement purposes was an unreasonable search. Ferguson,
Rather, the Ferguson Court applied the “special needs” analysis, relying on four previous cases where it had considered whether comparable drug tests “ ‘fit within the closely guarded category of constitutionally permissible suspicionless searches.’ ” Ferguson,
The Court then held that given that the primary purpose of the hospital’s program was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, “this case simply does not fit within the closely guarded category of ‘special needs.’ ” Ferguson,
Additionally, the United States Supreme Court has stated that “[a] State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” (Emphasis added.) Griffin,
First, the court should determine the primary purpose behind the program in question, here, the suspicionless search of a convicted felon to obtain his DNA as provided for under section 5 — 4—3(a)(3.5). If that purpose is merely to serve the ordinary needs of law enforcement or the general interest in crime control, this purpose will not fit within the narrow category of “special needs” cases. See Ferguson,
I would agree with the Seventh Circuit Court of Appeals that the primary purpose of the DNA law at issue here was “not to search for ‘evidence’ of criminal wrongdoing,” but was “to obtain reliable proof of a felon’s identity.” Green v. Berge,
Next, I believe this court must weigh the intrusion on the individual’s interest in privacy against the “special needs” that supported the program. Ferguson,
Additionally, the practice of collecting DNA from a blood sample is relatively noninvasive and does not “constitute an unduly extensive imposition on an individual’s personal privacy and bodily integrity.” Winston,
Finally, I note that Justice Greiman’s opinion relies on Knights in support of its analysis that the totality of the circumstances approach applies here. However, Knights is inapplicable to the present case because the Knights Court analyzed only whether a search conducted pursuant to the defendant’s probation condition and supported by reasonable suspicion satisfied the fourth amendment. The Knights Court expressly stated that it need not address the constitutionality of a suspicionless search “because the search in this case was supported by reasonable suspicion.” Knights,
Accordingly, I concur with the result of the majority in affirming this case.
While Green interprets the Wisconsin mandatory DNA statute, our Illinois statute is similar to and operates in the same manner as the Wisconsin statute, and thus, Green’s analysis is applicablе here.
Concurrence Opinion
specially concurring.
I completely concur with the decision reached in this opinion. I write separately because I agree with the Fourth Circuit of the United States Court of Appeals that neither the “special needs” exception to suspicionless searches nor the “balancing test” applies to convicted felons who are compelled by court order at sentencing to provide a sample of their blood, saliva or tissue for DNA analysis. See Jones v. Murray,
In the instant case, defendant was ordered at the time of sentencing to supply a specimen of blood for analysis and categorizing into genetic marker groupings pursuant to section 5 — 4—3, “Persons convicted of, or found delinquent for, certain offenses or institutionalized as sexually dangerous; specimens; genetic marker groups.” (Emphasis added.) 730 ILCS 5/5 — 4—3 (West 2002). In pertinent part, section 5 — 4—3(a)(3.5) provides:
“Any person *** convicted or found guilty of any offense classified as a felony under Illinois law *** shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section, provided such person is:
(3.5) convicted or found guilty of any offense classified as a felony under Illinois law *** on or after the effective date of this amendatory Act of the 92nd General Assembly [August 22, 2002.]” 730 ILCS 5/5 — 4—3(a)(3.5) (West 2002).
“730 ILCS” is the Unified Code of Corrections. Chapter 5 of the Unified Code of Corrections is entitled “SENTENCING.” Article 4 of chapter 5 is also entitled “SENTENCING.” Clearly then, at least under Illinois’ statutory scheme, court orders entered pursuant to section 5 — 4—3(a)(3.5) are entered as a part of a convicted felon’s sentence. Consequently, a court order entered pursuant to section 5 — 4—3(a)(3.5) may only be entered after the defendant has been found guilty of a felony beyond a reasonable doubt. These requirements (a felony conviction and a court order) provide substantially more protection to defendants than do the requirements of a search warrant, or the requirements of any “special needs” exception (see City of Indianapolis v. Edmond,
In Lampitok, our supreme court reviewed the holdings in United States v. Knights,
Griffin, Knights and Lampitok all involved searches of probationers’ residences long after the individual probationer was placed on probation. Similarly, the court in United States v. Kincade,
In Hudson v. Palmer,
Applying this standard to the issue before it, the Supreme Court held:
“Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.” Hudson,468 U.S. at 525-26 ,82 L. Ed. 2d at 402-03 ,104 S. Ct. at 3200 .
The Court explained that, in addition to the “institutional needs and objectives” of prison facilities, chief among which is internal security, the restrictions and retraction of rights from prisoners “also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.” Hudson,
I believe that the analysis employed in Hudson is more appropriately applicable to the instant case than any of the other Supreme Court cases cited by either the State or defendant. A convicted felon cannot claim a “justifiable,” “reasonable” or “legitimate” expectation of privacy in his blood, saliva or tissue when, at sentencing, the circuit court orders that the convicted person submit a sample of the same for purposes of DNA profiling. This is because (1) section 5 — 4—3(a)(3.5) provides more than adequate protection to the rights of convicted felons; (2) the taking of blood, saliva or tissue samples pursuant to section 5 — 4—3(a) (3.5) is comparable to fingerprinting; and (3) the taking of such samples strongly serves the recognized purpose of deterrence. Consequently, I agree with Justices Greiman and Theis and I would also affirm the constitutionality of section 5 — 4—3(a)(3.5).
As to defendant’s expressed concern that the information gathered from defendant’s DNA could be misused, subsection 5 — 4—3(f) provides that the genetic marker grouping analysis information obtained from the samples submitted by convicted individuals shall be confidential and may only be released to peace officers and prosecutorial agencies. 730 ILCS 5/5 — 4—3(f) (West 2002). Subsection (f) provides that the information attained from the samples shall be maintained in a single State databank, which may be uploaded into a national databank. These databanks serve the same purpose as does the National Crime Information Center’s (NCIC) fingerprint databank, but with significantly more protection for the individuals who must submit samples for DNA profiling. The NCIC fingerprint databank contains millions of sets of fingerprints which are taken from arrestees. In addition to verifying the identification of the arrestee, the fingerprint databank allows the police to quickly compare the fingerprints of arrestees with fingerprints recovered in connection with unsolved criminal cases. Section 5 — 4—3(a) (3.5) does not apply to mere arrestees. Rather, it applies only to convicted felons who are ordered at sentencing to submit samples for DNA profiling.
For the above-stated reasons I strongly concur.