State of Vermont v. George Dean Martin State of Vermont v. Mark Watkins, Richard Washington, Joey Thibault, Raymond St. Peter, Steven Martin, Michael Lewis, Travis Lamberton, Dennis Barbour and Joseph Williams
Nos. 06-119 & 06-205
Supreme Court of Vermont
May 2, 2008
2008 VT 53 | 955 A.2d 1144
Present: Reiber, C.J., Dooley, Johnson and Burgess, JJ., and Devine, D.J., Specially Assigned
Rory Malone, Prisoners’ Rights Office, Montpelier, for Defendant-Appellant (06-119) and Defendants-Appellees (06-205).
¶ 1. Reiber, C.J. These consolidated appeals from the Addison and Chittenden District Courts present the question of whether the State may, in keeping with
I. The Vermont DNA Database and Data Bank
¶ 2. Since 1998, Vermont has required at least some felons to submit a DNA sample for analysis and inclusion in the state and federal DNA databases. See 1997, No. 160 (Adj. Sess.), § 1 (effective April 29, 1998). The purposes of the DNA-sampling statute, as the Legislature announced in 1998, are as follows:
It is the policy of this state to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes. Identification, detection and exclusion may be facilitated by the DNA analysis of biological evidence left by the perpetrator of a violent crime and recovered from the crime scene. The DNA analysis of biological evidence can also be used to identify missing persons.
¶ 3. Under
(a) The following persons shall submit a DNA sample:
(1) every person convicted in a court in this state of a designated crime on or after the effective date of this subchapter; and
(2) every person who was convicted in a court in this state of a designated crime prior to the effective date of this subchapter and, after the effective date of this subchapter, is:
(A) in the custody of the commissioner of corrections pursuant to
28 V.S.A. § 701 ;(B) on parole for a designated crime;
(C) serving a supervised community sentence for a designated crime; and
(D) on probation for a designated crime.
¶ 4. A DNA sample is “a tissue sample” and “may be blood or other tissue type specified by the [D]epartment [of Public Safety].”
¶ 5. The statute authorizes three uses for the DNA samples. First, the samples may be analyzed “to type the genetic markers . . . for law enforcement identification purposes.”
¶ 6. Section 1941 provides that all DNA samples “shall be confidential” and “shall not be used for any purpose other than as provided in [§ 1937]” or to identify missing persons. The statute also provides both criminal and civil penalties for violations of the confidentiality provisions. See
¶ 7. These cases comprise the appeals of ten defendants convicted of “designated crimes” between 1999 and 2005. See
¶ 8. Defendant Martin and the nine Chittenden defendants all refused to provide samples, and the State moved to compel them to provide same. See
III. Article 11
¶ 9. Vermont‘s
Whatever the evolving federal standard, when interpreting Article Eleven, this Court will abandon the warrant and probable-cause requirements, which constitute the standard of reasonableness for a government search that the Framers established, only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.
154 Vt. at 310-11, 576 A.2d at 120-21 (quotations and citations omitted). Requiring the State to demonstrate that it has special needs for a warrantless, suspicionless search or seizure “focuses attention on the nature and extent of those needs and allows the courts, as the traditional protectors of Fourth Amendment rights, to pursue the necessary balancing test in a manner calculated to interfere least with preservation of those rights.” Id. at 311, 576 A.2d at 121.5 Once we determine that a special need exists, we balance the need served against the privacy intrusion at stake. Id. at 313, 576 A.2d at 122. This is at root a balancing between the constitutional imperatives announced in Article 11 and Article 1. Cf. Record, 150 Vt. at 87, 548 A.2d at 424 (“We recognize that in order to preserve Article One interests the government may properly exercise its inherent power to limit in a very minor way the mobility of some of its citizens.” (quotations omitted)).6 As a backdrop to our analysis of the DNA sampling statute, we recount the development of our special-needs jurisprudence.
¶ 10. We begin with a case, State v. Record, that predates our adoption of the special-needs exception, but which is nonetheless instructive for the case at bar. 150 Vt. 84, 548 A.2d 422. In
¶ 11. Our special-needs jurisprudence began as such with State v. Berard, 154 Vt. 306, 576 A.2d 118, in which we upheld random, suspicionless searches of prison cells. In Berard, we adopted the special-needs test suggested by Justice Blackmun‘s dissent in O‘Connor v. Ortega, 480 U.S. 709, 741, 744 n.8 (1987). We concluded in Berard that “court[s] should invoke a balancing test as the measure of [Article 11] values only when the warrant and probable cause requirements do not present a practical alternative.” 154 Vt. at 311, 576 A.2d at 121. “Through the balancing test, [courts] then try to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances. The warrant and probable-cause requirements, however, continue to serve as a model in the formulation of the new standard.” Id. (quoting O‘Connor, 480 U.S. at 744 n.8 (Blackmun,
¶ 12. In our next special-needs case, State v. Richardson, we upheld the warrantless seizure of a gun from an about-to-be-impounded automobile at a DUI stop. 158 Vt. 635, 635, 603 A.2d 378, 378 (1992) (mem.). Although Richardson, a brief entry order, contains no prolonged analysis, its rationale was that the seizure was justified by “concern for the safety of the general public who might be endangered if an intruder removed [the gun].” Id. (quoting Cady v. Dombrowski, 413 U.S. 433, 447 (1973)). As we noted in Richardson, the seizure was made without benefit of the “established departmental procedures” that governed the officers in Cady, but the lack of such procedures was of no moment in light of the “obvious prudence” of the Richardson officers and the “unacceptable danger to the public at large.” Id. at 635-36, 603 A.2d at 379.
¶ 13. The following year, in State v. Lockwood, we considered the validity of a probation condition requiring a developmentally disabled sex offender to submit to “body, clothing, [and] residential search as required.” 160 Vt. 547, 549, 632 A.2d 655, 658 (1993) (alteration in original). We concluded that “the special needs of the state in administering its probation program create[] an exception to the warrant requirement and permit[] a degree of ‘impingement upon privacy that would not be constitutional if applied to the public at large.‘” Id. at 559, 632 A.2d at 663 (quoting Griffin v. Wisconsin, 483 U.S. 868, 875 (1987)). Our narrow holding in Lockwood — that when “officers have reasonable grounds . . . to conduct a search under the authority of a
A. The DNA-Database Statute is Subject to Article 11
¶ 14. As a threshold matter, we agree with the many courts that have held that DNA sampling, by blood draw or by cheek swab, is subject to constitutional protections. See, e.g., Amerson, 483 F.3d at 77 (“It is settled law that DNA indexing statutes, because they authorize both a physical intrusion to obtain a tissue sample and a chemical analysis to obtain private physiological information about a person, are subject to the strictures of the Fourth Amendment.“); United States v. Nicolosi, 885 F. Supp. 50, 55-56 (E.D.N.Y. 1995) (cheek swab is physically intrusive to a degree sufficient to trigger Fourth Amendment protection); Landry, 709 N.E.2d at 1090 (DNA sampling subject to state constitutional protections). The initial taking of the DNA sample, either by blood draw or by buccal swab, and the subsequent analysis, storage, and searching of the DNA profile are independent intrusions upon personal security that merit scrutiny under Article 11.
B. The Existence of a “Special Need”
¶ 15. The State contends that the DNA statute serves several special needs: “(1) deterrence of all criminal conduct, (2) accurate identification of perpetrators, (3) exclusion of innocent suspects, and (4) assistance in the identification of missing persons.” Defendants argue that the primary purpose of the sampling statute is articulated in the first sentence of
Here, the primary purposes of the DNA tests are to create a DNA database and to assist in the identification of persons at a crime scene should the investigation of such crimes permit resort to DNA testing of evidence. That is a long-range special need that does not have the immediate objective of gathering evidence against the offender.
Id. at 279 (citation omitted and emphasis added).
¶ 17. This distinction was based on three U.S. Supreme Court special-needs cases that mark the boundaries of the Fourth Amendment special-needs doctrine. The cases are: Illinois v. Lidster, 540 U.S. 419, 427-28 (2004) (upholding brief seizure of motorists at roadblock seeking information about hit-and-run accident already known to have occurred); Ferguson v. City of Charleston, 532 U.S. 67, 84 (2001) (drug-testing program for pregnant women did not serve special needs; primary purpose was to use the threat of criminal prosecution based on the test results to “force women into treatment“); and City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (police checkpoint for “crime control” does not serve a special need; Court “cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime“). “Under these cases,” the O‘Hagen court concluded, “suspicionless searches are unconstitutional if the immediate purpose is to gather evidence against the individual for general crime control purposes. On the other hand, if the core objective of the police conduct serves a special need other than immediate crime detection, the search may be constitutional.” 914 A.2d at 279.
¶ 18. Of similar import on this point are the Second Circuit cases considering the federal, New York, and Connecticut DNA database statutes. See United States v. Amerson, 483 F.3d 73 (2d Cir. 2007) (federal statute); Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) (New York statute), cert. denied, 549 U.S. 953, 127 S. Ct. 384 (2006); Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999) (Connecticut statute). The Second Circuit‘s analysis of Edmond, Ferguson, and Lidster closely parallels the O‘Hagen court‘s. See Amerson, 483 F.3d at 80-81; Goord, 430 F.3d at 663. Lidster, as the Goord court wrote, requires
a more nuanced approach to law-enforcement concerns. . . . Lidster instructs courts to examine carefully the type of law-enforcement concern served by a particular search or seizure regime. . . . [W]e find it crucial that the state, in collecting DNA samples, is not trying to determine that a particular individual has engaged in some specific wrongdoing. Although the DNA samples may eventually help law enforcement identify the perpetrator of a crime, at the time of collection, the samples in fact provide no evidence in and of themselves of criminal wrongdoing, and are not sought for the investigation of a specific crime.
Goord, 430 F.3d at 668-69 (quotations and citation omitted). As noted above, the principal evil sought to be remedied by Article 11 and its federal and state counterparts was the issuance of general warrants and the concomitant vesting of officers of the state with unlimited discretion to intrude upon the privacy interests of particular individuals of their choice without particularized suspicion, in the hope of immediately discovering wrongdoing.
¶ 19. We conclude that the O‘Hagen reasoning also applies under Article 11, and that DNA sampling and analysis to assist in identifying persons at future crime scenes is a special need beyond normal law enforcement. Vermont‘s DNA database statute has as its stated purpose “to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes.”
¶ 20. Although the structure of
C. Special-Needs Balancing Test
¶ 21. Having concluded that the DNA statute serves special needs beyond normal law enforcement, we turn to a balancing of the competing public and private interests at stake. See Berard, 154 Vt. at 317, 576 A.2d at 124 (balancing the state‘s need for effective prison-cell searches against inmates’ right to be free from “unreasonably invasive or arbitrary treatment“); O‘Hagen, 914 A.2d at 279-81. The State asserts that the public‘s interests in the DNA database and data bank are: “(1) deterrence of all criminal conduct, (2) accurate identification of perpetrators, (3) exclusion of innocent suspects, and (4) assistance in the identification of missing persons.” Defendants characterize the State‘s interest as “general law enforcement” and assert that it is outweighed by sampled individuals’ interest in keeping private the “personal genetic traits” revealed by DNA analysis. There are two intrusions at issue: (1) the initial sampling by buccal swab, and (2) the subsequent analysis, indexing, and searching of the information obtained.
¶ 22. We first consider the privacy interests involved in the initial sampling. As noted, the record does not conclusively establish which collection method will be employed. The statute does mandate, however, that the least intrusive available means be used, and the State has averred, without opposition, that the
¶ 23. In R.H., we upheld the use of a nontestimonial identification order (NTO) based on less than probable cause to compel a suspect to submit to DNA sampling by cheek swab. We concluded that taking a DNA sample by that method was less intrusive than taking a blood sample, see Schmerber v. California, 384 U.S. 757, 769-70 (1966), or a pubic hair sample, see State v. Towne, 158 Vt. 607, 621, 615 A.2d 484, 492 (1992), and could therefore be justified by reasonable suspicion rather than probable cause in the NTO context. In re R.H., 171 Vt. at 234, 762 A.2d at 1244. The suspect in R.H. was neither incarcerated nor under any other form of supervision by the state at the time of the order; accordingly, his expectations of privacy were undiminished. R.H. also highlights the different protections applicable when DNA sampling is conducted to investigate a particular crime and potentially subject the sampled individual to immediate criminal charges. Although R.H. does not answer the question before us, we find no reason to depart from our unanimous statement in R.H. that the initial sampling is minimally intrusive. Accord O‘Hagen, 914 A.2d at 280 (“[A buccal swab] is no more intrusive than the fingerprint procedure and the taking of one‘s photograph that a person must already undergo as part of the normal arrest process.“). We have also held, in Lockwood, that probationers are subject to “‘impingement[s] upon privacy that would not be constitutional if applied to the public at large.‘” 160 Vt. at 559, 632 A.2d at 663 (quoting Griffin, 483 U.S. at 875). The initial sampling, taken alone, does not violate Article 11.
¶ 24. Defendants contend, however, that the principal intrusion into interests protected by Article 11 occurs after the initial sampling, when the sample is analyzed to yield a profile, and the profile is included in the database. See
Analysis of DNA is an intrusion into personal information which many people choose to keep private. It is unique to the individual, and contains information concerning the person‘s medical conditions and frailties, paternity and other familia[l] relationships. DNA analysis not only identifies an individual, but also members of his or her family. Under Article 11, Vermonters have a reasonable expectation of privacy in their DNA. If this were not the case, an NTO based on reasonable suspicion would not be required before a DNA sample could be taken.
¶ 25. A few opinions lend support to defendants’ argument, envisioning an inexorable march from DNA databases like Vermont‘s to a dystopian future of eugenics, gene-based discrimination, and other horribles worthy of Aldous Huxley.9 See, e.g., Kincade, 379 F.3d at 847, 851 (Reinhardt, J., dissenting) (asserting that “in the hands of an administration that chooses to exalt order at the cost of liberty, the database could be used to repress dissent or, quite literally, to eliminate political opposition” and that “we all have reason to fear that the nightmarish worlds depicted in films such as Minority Report [in which genetically altered ‘precognitives’ are able to see into the future] and Gattaca [in which the protagonist purchases a superior genetic identity in order to be chosen for a mission to Saturn] will become realities” (quotation and citation omitted)). Similarly, a federal district court judge in Massachusetts recently concluded that the federal DNA database statute was unconstitutional as applied to a probationer because “all information collected will one day be exploited.” United States v. Stewart, 468 F. Supp. 2d 261, 280 (D. Mass. 2007) (Young, J.). Suffice it to say that these fears — which are echoed in defendants’ briefs — find little foundation in the statute before
¶ 26. Rather, what the statute authorizes is the creation, storage, and searching of a unique alphanumeric identifier based on analysis of thirteen locations on DNA that are not associated with any known physical trait. This identifier is the only information contained in each person‘s database profile, see
¶ 27. Like the New York statute at issue in Goord, the statute we consider today expressly prohibits analysis of DNA samples for any but three narrow purposes: creating a profile for inclusion in CODIS and the state database,
by resort to sources whose accuracy cannot reasonably be questioned.”
¶ 28. Wrongful disclosures of DNA-based information are arguably more likely than discriminatory misuse, but that prospect also does not render the DNA-database statute unreasonable under Article 11. The arguments from potential disclosure fail because we presume that the Department of Corrections will comply with the limitations in the regulation. See Judicial Watch, Inc. v. United States Dep‘t of Health & Human Servs., 27 F. Supp. 2d 240, 243 (D.D.C. 1998) (“The Court must presume . . . that the Executive Branch is aware of its duty . . . to faithfully execute the law as enacted . . . .“); City of Marina v. Bd. of Trustees, 138 P.3d 692, 708 (Cal. 2006) (“[T]he courts ordinarily presume that the government . . . will comply with the law.“). Should the Department of Corrections or anyone else wrongfully disclose protected information, remedies are provided by statute. See
¶ 29. The dissent argues that “[i]t is no answer to the invasion of privacy permitted by [this] opinion that the statute provides for both criminal and civil remedies for wrongful disclosure of private information obtained pursuant to the DNA database statute.” Post, ¶ 67. The concern is that the state and federal governments “have in the past failed to protect individuals’ privacy rights when tasked with maintaining large stores of personal information.” Id. There are several responses to this. First, we are not asked to evaluate the State‘s ability to follow the statute the Legislature enacted. See City of Marina, 138 P.3d at 708 (courts ordinarily assume that other branches of government will comply with the law as written). If that were our task, and had it been
¶ 30. The searches the statute authorizes are subject to clear administrative guidelines and are performed uniformly on all felons subject to them. Accordingly, they do not raise the specter of unbridled officer discretion to harass particular individuals, against which Article 11 is a bulwark of protection. See Welch, 160 Vt. at 91, 624 A.2d at 1116 (Johnson, J., dissenting) (“In short, this Court has permitted warrantless regulatory searches in circumstances evincing special needs, but only when explicit guidelines ensure that the searches are not a pretext for singling out individuals.“); Record, 150 Vt. at 86, 548 A.2d at 424 (upholding random roadside sobriety checks because “written police guidelines prevented arbitrary police conduct, and the scope of the roadblock was narrowly drawn“); cf. Amerson, 483 F.3d at 82 (“[W]hat makes the government‘s need to create a DNA database ‘special,’ despite its relationship to law enforcement, is (as a matter of first principles) its incompatibility with the normal requirements of a warrant and probable cause . . . .“).
¶ 31. In light of the statutory limits on the analysis of genetic information, the post-sampling intrusion on protected privacy interests is closely akin to that occasioned by the retention and searching of fingerprint records. As we noted in R.H., “[l]ike fingerprinting, saliva sampling involves no intrusion into a person‘s
¶ 32. The information in the database, then, is not information defendants can reasonably expect to keep private as convicted felons. Cf. Sczubelek, 402 F.3d at 185 (“Individuals on supervised release cannot reasonably expect to keep information bearing on their physical identity from government records. Thus, for criminal offenders the privacy interests implicated by the collection of DNA are minimal.“); 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.“).
¶ 33. Further, of the many methods of determining identity, DNA is more accurate and far less susceptible to the various methods of deception employed by wrongdoers:
It is a well recognized aspect of criminal conduct that the perpetrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while committing a crime may be supplemented or replaced by changed names, and even changed physical features. Traditional methods of identification by photographs, historical records, and fingerprints often prove inadequate. The DNA, however, is claimed to be unique to each individual and cannot, within current scientific knowledge, be altered. . . . Even a suspect with altered physical features cannot escape the match that his DNA might make with a sample contained in a DNA bank, or left at the scene of a crime within samples of blood, skin, semen or hair follicles. The governmental justification for this form of identification, therefore, 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.
Jones, 962 F.2d at 307. This accuracy, and DNA‘s concomitant ability to conclusively exonerate the innocent, weigh heavily in favor of the statute.
¶ 34. Defendants argue that nonviolent felons like them may not be subjected to sampling under Article 11 even if sampling of violent felons would be permissible. The Chittenden District Court agreed, holding that “there is a question of ‘fit‘” between the sampling requirements in the new statute and the crimes these defendants committed, which the court noted would seldom involve DNA evidence. A similar argument was advanced and rejected in Jones. Id. at 308. There, several inmates convicted of nonviolent offenses argued, with supporting statistics, that the vast majority of cases involving DNA evidence were murders or rapes, and that there was only a small statistical likelihood that nonviolent offenders would later commit those crimes. See id. (noting that 97% of cases where DNA evidence was used were murders or rapes, and that less than 1% of nonviolent offenders are later arrested on murder or rape charges). The Court of Appeals for the Fourth Circuit agreed with the inmates that the state‘s “interest in DNA testing is significantly more compelling with regard to those felons convicted of violent crimes than those not,” but concluded that “[t]he effectiveness of the [state‘s] plan, in terms of percentage, need not be high where the objective is significant and the privacy intrusion limited.” Id. (citing Mich. Dep‘t of State Police v. Sitz, 496 U.S. 444, 454-55 (1990) (upholding DUI roadblock despite arrest rate of 1.5%)); Bell v. Wolfish, 441 U.S. 520, 559 (1979) (upholding searches of pretrial detainees; only single instance where inmate caught with contraband)). We agree with that analysis, and note also that the statute‘s purposes go beyond the mere identification of perpetrators and extend to exoneration of the innocent and identification of missing persons, both of which purposes are served regardless of the violence of the underlying offense.
¶ 35. In summary, we conclude that the DNA sampling statute does not offend Article 11 as applied to nonviolent felons, whether they are incarcerated or not. The statute serves special needs beyond normal law enforcement and advances important state interests that outweigh the minimal intrusions upon protected interests.
The judgment of the Chittenden District Court is reversed, and the judgment of the Addison District Court is affirmed.
¶ 36. Johnson, J., dissenting. A generation ago, the late Justice William O. Douglas presciently stated: “[T]he privacy and dignity
¶ 37. The statute under review authorizes the State to extract and to maintain forever a DNA sample from any person convicted of a felony. All defendants in this case have been duly convicted of such crimes and are, therefore, subject to the statute. They have refused to give a sample of their DNA, asserting that the statute violates their privacy rights under Article 11 of the Vermont Constitution. As convicted felons, defendants may evoke little sympathy when they seek to challenge the pains and penalties that stem from their guilt. And it is well-established that conviction for a felony necessarily results in certain diminutions in one‘s privacy rights. These considerations, however, must not deter us from our duty to fully uphold the constitutional rights of all of the people, for, as Justice Douglas so insightfully observed, if we fall into the habit of tolerating small assaults on our privacy, on the ground that in and of itself each seems inconsequential to society at large, we will eventually reach a condition in which we have little or no privacy at all.
¶ 38. We are asked to decide whether the taking, the perpetual maintenance and the future analysis of DNA samples, involuntarily taken from individuals for the sole reason of their conviction of certain crimes, violates Article 11 of the Vermont Constitution. Conceptually, this is a matter of the law of search and seizure. In my judgment, the majority has given us the wrong answer to the question presented, and its analysis is wholly inadequate for the important task before the Court. Because I believe that our jurisprudence plainly requires a different result, I respectfully dissent.
¶ 39. Before turning to the precise legal question involved, it is important to bear in mind the context in which the DNA database statute was passed. The availability of DNA evidence has enhanced forensic investigations of certain kinds of violent crimes,
¶ 40. The history of DNA database statutes reveals that, while databases were first limited, as they were in Vermont, to violent felons, many databases have been expanded to include all felons, juveniles, some misdemeanants, and even arrestees. Rothstein & Talbott, supra, at 153 (“[T]he success of [DNA] databases in solving violent crimes provided the impetus for Congress and state legislatures to expand the scope of the databases with little critical examination of each expansion‘s value to law enforcement or cost to privacy and civil liberties.“). Indeed, the statute before us in this case expanded DNA collection from violent felons to all felons, and a bill has recently been introduced in the Vermont Legislature to extend the reach of the database to arrestees. See
¶ 41. The State, and every court to consider the issue, concedes that the taking of a DNA sample involves an initial search, that the subsequent analysis of the individual‘s DNA material is another search, and that both of these searches are subject to constitutional requirements. To pass constitutional muster, a search must either be supported by probable cause and a warrant or be subject to one of the limited exceptions to the warrant rule. State v. Bauder, 2007 VT 16, ¶ 14, 181 Vt. 392, 924 A.2d 38; State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780 (1991). As we said in Savva,
as a matter of constitutional policy, a warrant requirement is not a starting point for deriving exceptions that balance citizens’ interest in privacy against law enforcement‘s interest in expeditious searches. Rather, it is the balance reached by the constitutional drafters . . . .
159 Vt. at 85-86, 616 A.2d at 780. Because the warrant and probable cause requirements set a standard of reasonableness, we have departed from these basic principles only when exigent circumstances were present or when special needs beyond the ordinary needs of law enforcement demanded an exception. See State v. Berard, 154 Vt. 306, 310-11, 576 A.2d 118, 120-21 (1990) (“[T]his Court . . . abandon[s] the warrant and probable-cause requirements, which constitute the standard of reasonableness for a government search that the Framers established, only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” (quotation omitted)); see also State v. Welch, 160 Vt. 70, 78-79, 624 A.2d 1105, 1110 (1992). In other words, if the government is engaged in the ordinary business of law enforcement, such as crime detection, it must have a warrant to infringe on individual privacy rights.
¶ 42. Thus, the constitutional problem presented by the DNA database statute is how to fit the statute within an exception to
¶ 43. I begin with the statute and its purpose, as articulated by the Legislature in its preamble to the original statute:
It is the policy of this state to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes. Identification, detection and exclusion may be facilitated by the DNA analysis of biological evidence left by the perpetrator of a violent crime and recovered from the crime scene. The DNA analysis of biological evidence can also be used to identify missing persons.
¶ 44. The primary purpose of the statute is straightforward — to identify suspects who may have committed crimes or may at some indefinite future point commit crimes. Indeed, this purpose was obvious in the legislative history, during which the Legislature heard from the FBI, local law enforcement, and parents of a violent crime victim, among others. Vermont‘s statute is based on the federal DNA Act, which authorizes extraction of DNA samples from individuals convicted of a qualifying federal offense for entry into the FBI‘s Combined DNA Index System (CODIS) — “a massive, centrally managed database including DNA profiles from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence.” Weikert, 504 F.3d at 3-4. The mission statement of CODIS, which is incorporated by reference in the Vermont DNA database statute, explicitly states that it is an “effective tool for solving violent crimes” and that it was formed in 1990 “for law enforcement purposes.” Id. at 10 (quotation omitted). The Vermont bill was promoted by its advocates as an important national law enforcement tool, and the Legislature‘s statement of purpose reflects that goal.16 Although the State has articulated other legitimate uses of the database under the statute, it cannot reasonably be argued that the primary purpose of collection is other than crime detection. And while the legislative purpose is an obviously valid one, the means to the end must nonetheless pass constitutional muster.
¶ 45. Nothing in our Article 11 jurisprudence overcomes the basic fact that the State cannot articulate a special need to collect DNA samples from all felons. Previously, we have found special needs in two contexts that are relevant here — invasions on the
¶ 46. To trigger the balancing test, the State first had to demonstrate that its ability to maintain institutional security presented a special need that rendered the warrant and probable-cause requirements impracticable. Berard, 154 Vt. at 311-12, 576 A.2d at 121-22. We recognized that the prison environment was unique, and that the State‘s objective in operating an institution free of contraband of all kinds, including dangerous weapons, was likely to be substantially hindered by the inability to conduct random searches.18 Id. at 312-13, 576 A.2d at 121-22.
¶ 47. Once we determined that a significant special need allowed a balancing test to be substituted for a warrant and probable cause, we proceeded to weigh the State‘s “paramount interest in institutional security” against the inmates’ residuum of privacy rights.” Id. at 313, 576 A.2d at 122. We rejected the State‘s position that we analyze the constitutional question as if prison inmates had no reasonable expectation of privacy, such that any official conduct was reasonable. Id. at 310-12, 576 A.2d at 120-21; cf. Hudson v. Palmer, 468 U.S. 517, 526 (1984) (holding that under Fourth Amendment, prisoners have no reasonable expectation of privacy in their cells). Although privacy rights of prisoners are diminished, we noted they are not nonexistent. Berard, 154 Vt. at 313, 314 n.4, 576 A.2d at 122, 123 n.4 (“though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections” (quotation omitted)). Nonetheless, the privacy interest of the defendant in Berard was overcome by the State‘s interest because the searches were undertaken as part of a random policy that served broad objectives, and did not arbitrarily or specifically target him.
¶ 49. The majority relies on the special-needs doctrine, arguing that the collection of DNA for inclusion in a law enforcement database is not an ordinary law enforcement purpose, and that the protections of Article 11 may therefore be overlooked as impracticable. Although our law is considerably different from federal law and that of other states, the majority reaches this conclusion by accepting the analysis of the Supreme Court of New Jersey in State v. O‘Hagen, 914 A.2d 267 (N.J. 2007). In O‘Hagen, the court concluded that the primary purpose of the DNA tests is to create a DNA database to assist in the future resolution of crimes, and because it is a long-range special need that does not have the “immediate” objective of gathering evidence against the offender, the statute does not impermissibly target individuals without reasonable suspicion. 914 A.2d at 278. The majority also accepts the special-needs analysis of the Second Circuit Court of Appeals in Nicholas v. Goord, interpreting the New York statute as presenting a more “nuanced approach to law-enforcement concerns.” 430 F.3d at 668. The court in Goord concluded that DNA samples are simply an information-gathering tool that may eventually help law enforcement identify the perpetrator of a crime,
¶ 50. First, the reasoning on which the majority opinion relies completely overlooks that DNA collection from persons recently convicted may identify — immediately, or as soon as the analysis and database check is completed — a suspect in an old, unsolved crime, and that such person will be prosecuted as a result of the identification. This is ordinary detection of crime for which the majority mounts no special-needs justification.
¶ 51. Second, even if the DNA collected is analyzed and awaits a possible match with a future crime, the time distinction increases the constitutional problem, rather than decreases it. If no current crime needs solving, the government‘s need to use extraordinary procedures that abandon the warrant and probable-cause requirement is difficult to justify. The State‘s interest is obviously weaker if it is gathering information for crimes that have not yet been committed. Cf. Illinois v. Lidster, 540 U.S. 419 (2004) (upholding roadblock on grounds that stop‘s objective was to help find the perpetrator of a specific and known crime, not of unknown crimes of a general sort). Contrary to the majority‘s assertion, cataloguing DNA for future prosecutions, for crimes not yet committed, is precisely the kind of evil sought to be remedied by Article 11 — the intrusion on the privacy of individuals for whom no reasonable suspicion of wrongdoing can be articulated.19 Collecting DNA for crimes that may never be committed, to further some sort of general deterrence goal, undeniably serves a general law enforcement purpose.20
¶ 52. Third, the fact that DNA statutes merely allow the collection of data for identity purposes begs the special-needs question. See Goord, 430 F.3d at 669 (defining governmental interest in DNA database as “obtaining identifying information from convicted offenders and keeping a record of such informa-
¶ 53. In short, the DNA statute allows the State to collect DNA from individuals for the express purpose of identifying them as either the perpetrator of a past crime, or the perpetrator of a future crime, so that they may be prosecuted. As many courts and commentators have now recognized, calling the collection of DNA under the database statutes a special need of law enforcement is like trying to fit a square peg into a round hole. See, e.g., Weikert, 504 F.3d at 9-10; J. Rikelman, Justifying Forcible DNA Testing Schemes Under the Special Needs Exception to the Fourth Amendment: A Dangerous Precedent, 59 Baylor L. Rev. 41, 65-68 (2007); Monteleoni, supra, at 262-67.
¶ 54. The majority‘s analysis plainly fails to meet the first requirement of our own precedent in Berard — to demonstrate that a credible special need exists to abandon the warrant and
¶ 55. Even if I were to accept that the collection of DNA is a special need, however, the majority has not shown that there is a nexus between the State‘s special need and the warrantless intrusion on appellants’ rights, or that the intrusion is narrowly tailored to accomplish those ends. See Lockwood, 160 Vt. at 556, 632 A.2d at 661. Thus, its conclusion that the State‘s interest in the DNA database statute outweighs the important privacy interests that nonviolent felons maintain in their DNA is entirely unsupported.
¶ 56. The State has the burden to demonstrate a nexus between the collection and profiling of DNA samples from all convicted, nonviolent felons and its interest in identifying perpetrators of future crimes, deterring criminal activity, and preventing recidivism. As we have held, the State‘s interest in both rehabilitating those in the corrections system and protecting the public from convicted criminals is reasonably furthered by activities such as random prison-cell searches and searches of probationers’ homes based on reasonable suspicion, and thus, there is a sufficient nexus to depart from the warrant and probable-cause requirements. Here, there is no similar connection between the State‘s interest in penalizing, controlling, or rehabilitating convicted felons and collecting, profiling, and repeatedly searching their unique genetic material, nor does the State even attempt to argue that there is.
¶ 57. The State‘s general interest in preventing crime is no more furthered by collecting the DNA of all convicted felons than it would be by sampling the DNA of all Vermont citizens. As the District Court, Judge Levitt presiding, saliently concluded in its ruling on the constitutionality of the DNA database statute:
[T]here is a question of “fit.” Identity is never at issue in the type of crimes in which the above-named defendants were convicted, that is false pretenses, drug possession, or driving while intoxicated. It is crimes against persons where DNA identification and exclusion is most relevant, not the non-contact crimes involving possession, intoxication or larceny.
To reach the majority‘s conclusion, one therefore has to accept the proposition that, although identity is generally not at issue in
¶ 58. Given the weak nexus between the State‘s means and its ends, the majority has not shown that the State‘s interest in solving or deterring future crimes outweighs defendants’ privacy interests in their DNA. See Berard, 154 Vt. at 311, 576 A.2d at 121; Lockwood, 160 Vt. at 556-59, 632 A.2d at 661-63. Even the warrantless search in Lockwood, which intruded only on possessory interests, was supported by “reasonable grounds” in light of the residuum of privacy accorded to a probationer. 160 Vt. at 558-59, 632 A.2d at 662-63. Unlike Lockwood, the majority here gives short shrift to the significant privacy interests involved.
¶ 59. Each of us has a reasonable expectation of privacy in our unique genetic make-up. If we did not, there would be no constitutional question before us. While a convicted felon‘s privacy interest in his home, or possessory interest in his belongings, may be temporarily diminished given the constraints and goals of the corrections system, he cannot be said to have a similarly lessened expectation of privacy in his unique genetic profile. DNA analysis has the potential to reveal a panoply of private genetic information, including physical and medical characteristics, genealogy, and predisposition to disease — none of which bears any relation to the penal, rehabilitative or administrative goals of the corrections system.
¶ 60. To be sure, the privacy rights of convicted felons within the corrections system, whether prisoners, probationers or parolees, are necessarily diminished.22 As the majority points out, those currently within the corrections system cannot be said to have a reasonable expectation of privacy in their physical identity. Indeed, convicted criminals make their identity a public concern by
¶ 61. The majority attempts, as have other courts, to liken DNA profiling to fingerprinting, and thereby deemphasize the important privacy interests implicated by the DNA database statute. There are, however, critical differences between the two that we must bear in mind in our analysis of the database statute. To begin, fingerprints are regularly exposed to the outside world and cannot be manipulated to reveal private information beyond identity. Within the corrections system, fingerprinting is undertaken as part of the routine booking procedure to establish the identity of the person taken into custody, ascertain the person‘s criminal history and outstanding warrants, if any, and aid in the apprehension of escaped prisoners. United States v. Olivares-Rangel, 458 F.3d 1104, 1113 (10th Cir. 2006).
¶ 62. DNA samples serve a different purpose. They must be analyzed to create a unique profile useful to law enforcement in identifying criminal suspects, and in the process of that analysis, the intimate details of one‘s genetic make-up are revealed, exposing felons to the type of governmental abuse of privacy that Article 11 is intended to thwart. The majority claims that the statute simply authorizes “the creation, storage, and searching of a unique alphanumeric identifier based on analysis of thirteen locations on DNA that are not associated with any known physical trait.” Ante, ¶ 26. As scientific advancements in the field of genetics continue, however, the likelihood that increasingly private information can be gleaned from the seemingly innocuous DNA profiles expands. In fact, while the thirteen loci at which DNA samples are measured were once widely believed to be “junk DNA,” scientists have in recent years discovered that DNA profiling “can reveal probabilistic information about one‘s ethnicity and gender.” Monteleoni, supra, at 256. Furthermore, there is strong scientific evidence to suggest that the profiles may carry information about individuals’ genetic predisposition to certain
¶ 63. Even if I agreed that DNA profiling, like fingerprinting, provides no more information than a unique identifier, the critical difference is in the way the identifying information is used. No one here is contending that the State collects DNA samples solely for administrative purposes, such as those underlying the routine fingerprinting by corrections. Rather, the explicit purpose of collecting DNA samples from felons — potentially long after their identity has been established by fingerprinting — is to use them indefinitely to investigate past or as-yet-uncommitted future crimes.
¶ 64. Finally, the majority‘s reliance on In re R.H. for the proposition that DNA sampling, by saliva swab, involves no intrusion greater than that engendered by fingerprinting is misplaced. 171 Vt. 227, 238, 762 A.2d 1239, 1247 (2000). In that case, the view that a cheek swab was a minimal intrusion of privacy was appropriate in light of the safeguards present — reasonable suspicion of the defendant‘s involvement in a crime and judicial review leading to a nontestimonial order (NTO). Furthermore, we recognized in R.H. that protections such as destruction of nonmatching profiles analyzed pursuant to an NTO might be prudent, and requested that the Advisory Committee on the Rules of Criminal Procedure consider adding such safeguards. Id. at 238-39, 762 A.2d at 1247-48. While the Advisory Committee determined that such protections were more appropriate for legislative action and the Legislature has as yet failed to act on the matter, the privacy issues implicated were, in the very least, brought to the forefront. See Reporter‘s Notes, 2006 Amendment,
¶ 65. In comparison to the significant privacy rights at risk in DNA profiling and data-banking, the State‘s general interest in adding to its arsenal of investigative tools is weak at best. To the extent that the DNA database is intended to solve future crimes that have not yet been committed, the State has little interest in invading the privacy rights of nonviolent felons. To the extent that it is used to solve past crimes, there is already a constitutional mechanism in place for obtaining DNA samples from suspects on the basis of some individualized suspicion and judicial review. See R.H., 171 Vt. at 238-39, 762 A.2d at 1247-48. Nor is the statute narrowly tailored to meet its goals, as any future crimes likely to be committed by recidivist nonviolent offenders are unlikely to be solved by DNA evidence.
¶ 66. In any event, there are no exigencies involved in the use of DNA profiling to investigate past or future crimes. In the case of searches of prison cells or probationers’ homes, contraband or other evidence of criminality could be concealed or destroyed in the time it takes to obtain a warrant. DNA, on the other hand, can neither be destroyed nor concealed. The privacy interests of convicted felons in their unique genetic code far outweigh the governmental interest in collecting, storing and searching the DNA of an entire class of individuals for the investigation of as-yet-uncommitted crimes. Thus, the State‘s inability to demonstrate that its interests in creating and maintaining the investigative tool should overcome the important privacy interests at stake, and its wholesale failure to prove a sufficient nexus between its goals and its methods — sampling of all nonviolent felons — further militate against abandoning Article 11 protections.
¶ 67. It is no answer to the invasion of privacy permitted by the majority‘s opinion that the statute provides for both criminal and civil remedies for wrongful disclosure of private information obtained pursuant to the DNA database statute. See
¶ 68. The majority scoffs at the notion that DNA database statutes presage futuristic societies like that portrayed in the movie Gattaca (Columbia Pictures Corp. 1997), in which the government maintains a DNA database of all citizens and classifies them as “valid” or “invalid,” takes cheek swabs at roadblocks for instantaneous identity verification, and privileges those citizens whose DNA has the qualities it considers desirable. But I would not take this threat to our liberties so cavalierly. Compulsory DNA testing has steadily expanded in scope. Proposals for further expansions are under active consideration, including expansions
¶ 69. It is too easy to dismiss a challenge to privacy presented by convicted felons as one that deserves only cursory consideration. The narrow context of the inquiry tends to mask the larger threat to liberty. But even if we are justified in holding a lessened concern for these individuals, they threaten soon to become everyman. We will then have only ourselves to blame for falling within the injunction voiced by one of the most revered of the nation‘s founders: “They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.” Benjamin Franklin, Historical Review of Pennsylvania (1759).
¶ 70. I am authorized to state that Judge Devine joins this dissent.
2008 VT 58
In re Grievance of Mary Ellen Cole and Charles Cross
[954 A.2d 1307]
No. 06-472
Present: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
Opinion Filed May 2, 2008