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Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

76 A.L.R.5th 239 (Originally published in 2000)

American Law Reports | The ALR databases are made current by the weekly addition of relevant new cases. ALR5th Robin Cheryl Miller, J.D.

Validity, construction, and operation of state DNA database statutes

Every state has enacted a statute creating a DNA (deoxyribonucleic acid) database for use in solving various classes of crimes. While these statutes have frequently been challenged, the challenges usually have been unsuccessful. For example, in Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 76 A.L.R.5th 703 (1999), petition for cert. filed, 68 U.S.L.W. 3153 (U.S. Aug. 20, 1999), the court held that the state's DNA database statute did not authorize an unreasonable search and seizure in violation of the Fourth Amendment and its state constitutional analogue, and that it was not necessary, before the statute went into effect, to promulgate specific regulations, spelling out when and how reasonable force could be used to acquire DNA samples from nonconsenting persons. This annotation collects and analyzes state and federal cases discussing the validity, construction, and operation of state statutes creating or regulating DNA databases created for the purpose of enforcing the criminal law, and the regulations implementing such statues.

TABLE OF CONTENTS Article Outline Index Table of Cases, Laws, and Rules Research References

ARTICLE OUTLINE

I PRELIMINARY MATTERS § 1[a] Introduction—Scope § 1[b] Introduction—Related annotations § 2[a] Summary and comment—Generally § 2[b] Summary and comment—Practice pointers II VALIDITY OF DNA DATABASE STATUTES § 3 Cruel and unusual punishment § 4[a] Equal protection—Requirement of equal protection violated § 4[b] Equal protection—Requirement of equal protection not violated § 5 Ex post facto law—requiring provision of DNA sample § 6[a] —Imposing punishment for refusal to provide DNA sample—Delay in release date—delay found § 6[b] —Imposing punishment for refusal to provide DNA sample——Delay not found § 6[c] —Imposing punishment for refusal to provide DNA sample—Imposition of administrative

punishment § 6[d] —Imposing punishment for refusal to provide DNA sample—Increase in administrative punishment § 6.5 Bills of attainder § 7 Free exercise of religion § 8 Procedural due process—under statute

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

§ 9 —Under regulation implementing statute § 10 Right to privacy § 11 Self–incrimination § 12[a] Separation of powers—Separation of powers violated § 12[b] Separation of powers—Separation of powers not violated § 13 Substantive due process § 14 Unreasonable search and seizure—traditional Fourth Amendment analysis § 15 —Reduced privacy interest of prisoners § 16 —Special needs of government § 16.5 Unreasonable search and seizure under state constitution § 17 Vagueness III CONSTRUCTION AND OPERATION OF DNA DATABASE STATUTES § 17.5 Mandatory nature of statutory provisions § 18 Application to juveniles § 19[a] Necessity of incarceration—Statute applicable § 19[b] Necessity of incarceration—Statute not applicable § 20[a] Predicate offenses—Statute applicable § 20[b] Predicate offenses—Statute not applicable § 20.5 Necessity of warrant prior to obtaining sample § 21 Reasonable force to collect samples § 22 Retroactive application § 23 Type of sample to be taken § 24 Admissibility of DNA database evidence § 25 Application of statue to repeat offender § 26 Effect of conviction for attempt § 27 Notice to designated offenders to provide sample § 28 Sample derived from post-conviction DNA testing order § 29 Effect of guilty plea § 29.5 Condition of release § 30 Condition of parole § 31 Qualification to take sample § 32 Monetary charge Research References

INDEX

Access to information, § 14 Administrative punishment, §§ 6[c], 6[d] Attempted murder, § 20[b] Bodily integrity, § 10 Burglars, payment of DNA surcharge by, § 4[a] Comment and summary, § 2 Confidentiality of information, § 14 Construction and operation of DNA database statutes, §§ 18- 22 Contempt order, § 12[a] Cruel and unusual punishment, § 3 Delay in prisoner's release date, §§ 6[a], 6[b] Delinquency, adjudication of, § 14

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

Destruction of juvenile court records, § 18 Discretion of court, § 12 Discretion of persons administering DNA collection process, §§ 15, 16 Discretion of prison officials, §§ 6[c], 15 Due process, §§ 8, 9, 13 Effective date of statute, persons incarcerated on, § 4[b] Eighth Amendment, § 3 Enactment of statute, persons convicted before, §§ 5, 22 Equal protection, § 4 Expectation of privacy, §§ 10, 15 Ex post facto law, §§ 5, 6 Fifth Amendment, § 11 Fingerprinting, § 14 First Amendment, § 7 Force used to collect samples, §§ 3, 21 Fourteenth Amendment, §§ 10, 13 Fourth Amendment, §§ 10, 14- 16 Free exercise of religion, § 7 Fundamental right, § 4[b] Good time credit, loss of, §§ 6[c], 6[d], 9 Hearing, failure of statute to provide for, § 8 Incarceration, necessity of, §§ 4[b], 19 Increase in administrative punishment, § 6[d] Individualized suspicion, §§ 14- 16 Injuries occurring during taking of sample, § 3 Introduction to annotation, § 1 Just compensation, deprivation of property without, § 8 Juveniles, §§ 10, 14, 18, 22 Liberty interest, §§ 4[b], 8 Manner of taking sample, §§ 3, 13, 14, 21 Medical malpractice, § 3 Minors, §§ 10, 14, 18, 22 Murder, §§ 5, 8, 15, 20[a] Murder, attempted, § 20[b] Offense for which individual currently incarcerated, § 19[a] Parole, §§ 6[a], 6[b], 8, 12[b] Penal nature of DNA testing, §§ 5, 6[c], 18, 22 Permanent identification record of convicted persons, state interest in preserving, § 15 Practice pointers, § 2[b] Predicate offenses, generally, §§ 19[a], 20 Preliminary matters, §§ 1, 2 Privacy, §§ 10, 14, 15 Probable cause, §§ 14- 16 Probationer, applicability to, § 19[b] Procedural, DNA database statute as, § 22 Procedural due process, §§ 8, 9 Property, deprivation of, § 8 Punitive, DNA testing as, §§ 5, 6[c], 18, 22 Reasonable force to collect samples, §§ 3, 21

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

Recidivism, likelihood of, §§ 15, 16 Reduced privacy interest of prisoners, § 15 Related annotations, § 1[b] Religion, free exercise of, § 7 Retroactive application, generally, § 22 Scope of annotation, § 1[a] Search and seizure, §§ 14- 16 Second degree murder, § 20[a] Self-incrimination, § 11 Separation of powers, § 12 Sex offenses, §§ 3, 4[b], 5, 7, 8, 14- 16, 18, 22 Special needs of government, §§ 15, 16 State constitution, § 15 Substantive due process, § 13 Summary and comment, § 2 Surcharge, DNA, § 4[a] Unreasonable search and seizure, §§ 14- 16 Vagueness, § 17 Validity of DNA database statutes, §§ 3- 17 Violent offenses, §§ 4[b], 7, 20[a], 22 Voice exemplar, § 14 Warrants, §§ 14- 16

Table of Cases, Laws, and Rules

United States U.S. Const. Art. I § 9, cl. 3. See 5 U.S. Const. Art. I § 10, cl. 1. See 5 U.S. Const. Amend. 14. See 4[b], 13 U.S. Const. Amend. 4. See 14, 15, 16 U.S. Const. Amend. 8. See 3 U.S. Const. Amend. IV. See 4[b], 14, 15, 16, 24 U.S. Const. Amend. V. See 11, 13 U.S. Const. Amend. VIII. See 3 U.S. Const. Amend. XIV. See 4[b], 5, 8 U.S.C.A. Const. Amend. IV. See 14 U.S. Const. Amends. IV, XIV. See 16 42 U.S.C.A. §§ 1983, 1985, 1988. See 3, 4[b] 42 U.S.C.A. § 1983. See 3, 6[a], 6[b], 22 42 U.S.C.A. §§ 14131-14134. See 2[b] 42 U.S.C.A. § 14135. See 5, 11, 13, 16

Supreme Court Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957) — 8 Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) — 7 Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001) — 15 Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318, 132 S. Ct. 1510, 182 L. Ed. 2d 566 (2012) — 14

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004) — 16 Indianapolis, City of v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) — 15 Maryland v. King, 569 U.S. 435, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013) — 14 National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989) — 16 Nicholas v. Goord, 549 U.S. 953, 127 S. Ct. 384, 166 L. Ed. 2d 270 (2006) — 16 Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) — 8, 11 Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) — 2[b], 14, 16

Second Circuit Grant v. Goord, 155 Fed. Appx. 551 (2d Cir. 2005) — 5, 16 Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) — 16 Nicholas v. Goord, 2004 WL 1432533 (S.D. N.Y. 2004) — 15, 16 Nicholas v. Goord, 2003 WL 256774 (S.D. N.Y. 2003) — 15, 16 Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999) — 4[b], 16

Third Circuit Johnson v. Ogershok, 134 Fed. Appx. 535 (3d Cir. 2005) — 15 Johnson v. Pennsylvania Bd. of Probation and Parole, 163 Fed. Appx. 159 (3d Cir. 2006) — 5

Fourth Circuit DNA Ex Post Facto Issues, In re, 561 F.3d 294 (4th Cir. 2009) — 5 Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993) — 6[d], 9 Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) — 2[b], 5, 6[a], 6[b], 6[c], 15 Sanders v. Coman, 864 F. Supp. 496 (E.D. N.C. 1994) — 2[b], 3, 5, 13, 15 U.S. v. Ketter, 456 Fed. Appx. 293 (4th Cir. 2011) — 11

Fifth Circuit Colgrove v. Williams, 105 Fed. Appx. 537 (5th Cir. 2004) — 10 Fuhrman v. Dretke, 442 F.3d 893 (5th Cir. 2006) — 25 Groceman v. U.S. Dept. of Justice, 354 F.3d 411 (5th Cir. 2004) — 14 Hunt v. Johnson, 90 Fed. Appx. 702 (5th Cir. 2004) — 13 Sheffield v. Trevino, 207 Fed. Appx. 403 (5th Cir. 2006) — 14 Simon v. Dixon, 141 Fed. Appx. 305 (5th Cir. 2005) — 14 U.S. v. Hartshorn, 163 Fed. Appx. 325 (5th Cir. 2006) — 22

Seventh Circuit Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995) — 5, 6[c] Green v. Berge, 354 F.3d 675 (7th Cir. 2004) — 16 Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis. 1996) — 2[b], 16 U.S. v. Hook, 471 F.3d 766 (7th Cir. 2006) — 5, 14

Eighth Circuit Clevenger v. Gartner, 392 F.3d 977 (8th Cir. 2004) — 26 Kruger v. Erickson, 875 F. Supp. 583 (D. Minn. 1995) — 3, 5, 6[c], 13, 15

Ninth Circuit Hamilton v. Brown, 630 F.3d 889 (9th Cir. 2011) — 3, 15 Haskell v. Brown, 317 F. Supp. 3d 1095 (N.D. Cal. 2018) — 10 Haskell v. Brown, 677 F. Supp. 2d 1187 (N.D. Cal. 2009) — 14 Haskell v. Harris, 745 F.3d 1269 (9th Cir. 2014) — 14 Mayfield v. Dalton, 901 F. Supp. 300 (D. Haw. 1995) — 2[b] Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995) — 5, 8, 15

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

Ryncarz v. Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993) — 3, 7, 15 Turner v. Carpenter, 63 Fed. Appx. 318 (9th Cir. 2003) — 5 Vore v. U.S. Dept. of Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003) — 5, 11, 13, 16

Tenth Circuit Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996) — 2[b], 3, 4[b], 8, 11, 15 Esnault v. Burnett, 83 Fed. Appx. 279 (10th Cir. 2003) — 3, 5, 8, 16 Schlicher v. (NFN) Peters, I & I, 103 F.3d 940 (10th Cir. 1996) — 2[b], 15 Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) — 2[b], 5, 7, 11, 15, 22

Eleventh Circuit Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005) — 13 Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005) — 10, 15 Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003) — 5, 10, 11 United States v. Hinton, 676 Fed. Appx. 842 (11th Cir. 2017) — 22 U.S. v. Rodriguez-Benavides, 148 Fed. Appx. 813 (11th Cir. 2005) — 15

Alabama D.B. v. State, 861 So. 2d 4 (Ala. Crim. App. 2003) — 14, 22

Alaska Nason v. State, 102 P.3d 962 (Alaska Ct. App. 2004) — 4[b]

Arizona Appeal in Maricopa County Juvenile Action Numbers JV-512600 and JV-512797, Matter of, 187 Ariz. 419, 930 P.2d 496 (Ct. App. Div. 1 1996) — 5, 10, 14, 18, 22 Leopoldo L., In re, 209 Ariz. 249, 99 P.3d 578 (Ct. App. Div. 1 2004) — 10 Mario W. v. Kaipio, 230 Ariz. 122, 281 P.3d 476 (2012) — 10

Arkansas Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005) — 10, 14

California Cal. Penal Code § 296. See 15 Alfaro v. Terhune, 98 Cal. App. 4th 492, 120 Cal. Rptr. 2d 197 (3d Dist. 2002) — 10 Calvin S., In re, 150 Cal. App. 4th 443, 58 Cal. Rptr. 3d 559 (3d Dist. 2007) — 14, 18 Coffey v. Superior Court, 129 Cal. App. 4th 809, 29 Cal. Rptr. 3d 59 (1st Dist. 2005) — 13 Good v. Superior Court, 158 Cal. App. 4th 1494, 71 Cal. Rptr. 3d 125 (1st Dist. 2008) — 6[c] Haskell v. Brown, 317 F. Supp. 3d 1095 (N.D. Cal. 2018) (applying California law) — 16 Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) (applying California law) — 15 J.C., In re, 246 Cal. App. 4th 1462, 201 Cal. Rptr. 3d 731 (1st Dist. 2016) — 20[a] Nancy C., In re, 33 Cal. Rptr. 3d 814 (Cal. App. 3d Dist. 2005) — 20[a] People v. Adams, 115 Cal. App. 4th 243, 9 Cal. Rptr. 3d 170 (6th Dist. 2004) — 15, 24 People v. Buza, 4 Cal. 5th 658, 230 Cal. Rptr. 3d 681, 413 P.3d 1132 (Cal. 2018) — 14, 16.5 People v. Buza, 180 Cal. Rptr. 3d 753 (Cal. App. 1st Dist. 2014) — 14, 16.5 People v. Buza, 129 Cal. Rptr. 3d 753 (Cal. App. 1st Dist. 2011) — 10 People v. Harris, 15 Cal. App. 5th 47, 222 Cal. Rptr. 3d 781 (4th Dist. 2017) — 10 People v. Johnson, 139 Cal. App. 4th 1135, 43 Cal. Rptr. 3d 587 (5th Dist. 2006) — 15 People v. Lowe, 165 Cal. Rptr. 3d 107 (Cal. App. 4th Dist. 2013) — 14 People v. McCray, 144 Cal. App. 4th 258, 50 Cal. Rptr. 3d 343 (2d Dist. 2006) — 10 People v. Milligan, 83 Cal. Rptr. 3d 550 (Cal. App. 4th Dist. 2008) — 5 People v. Penkova, 2004 WL 2712418 (Cal. App. 4th Dist. 2004) — 15

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

People v. Quezada, 2004 WL 2914844 (Cal. App. 6th Dist. 2004) — 15 People v. Robinson, 47 Cal. 4th 1104, 104 Cal. Rptr. 3d 727, 224 P.3d 55 (2010) — 14 People v. Sanchez, 52 Cal. App. 4th 997, 60 Cal. Rptr. 2d 880 (5th Dist. 1997) — 20[b] People v. Travis, 139 Cal. App. 4th 1271, 44 Cal. Rptr. 3d 177 (1st Dist. 2006) — 4[b], 5, 13, 14, 15, 16, 17.5

Colorado People v. Casillas, 2015 COA 15, 2015 WL 795765 (Colo. App. 2015) — 14, 18, 24 People v. Lancaster, 2015 COA 93, 373 P.3d 655 (Colo. App. 2015) — 20.5 People v. Shreck, 107 P.3d 1048 (Colo. App. 2004) — 16 People v. Valdez, 2017 COA 41, 405 P.3d 413 (Colo. App. 2017) — 14, 20[a]

Connecticut State v. Banks, 143 Conn. App. 485, 71 A.3d 582 (2013) — 5 State v. Drakes, 143 Conn. App. 510, 70 A.3d 1104 (2013) — 5, 21 State v. Easton, 152 Conn. App. 300, 100 A.3d 18 (2014) — 10

Florida Carra v. State, 736 So. 2d 721 (Fla. 2d DCA 1999) — 19[b] L.S. v. State, 805 So. 2d 1004 (Fla. Dist. Ct. App. 1st Dist. 2001) — 4[b], 10, 18 Morrow v. State, 914 So. 2d 1085 (Fla. 4th DCA 2005) — 5 Smalley v. State, 889 So. 2d 100 (Fla. 5th DCA 2004) — 14 Springer v. State, 874 So. 2d 719 (Fla. 5th DCA 2004) — 14

Georgia Dingler v. State, 281 Ga. App. 721, 637 S.E.2d 120 (2006) — 10 Fortune v. State, 300 Ga. App. 550, 685 S.E.2d 466 (2009) — 11 Leftwich v. State, 299 Ga. App. 392, 682 S.E.2d 614 (2009) — 29.5 Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003) (applying Georgia law) — 8, 14 Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007) — 3, 10, 11, 14 State v. Clark, 273 Ga. App. 411, 615 S.E.2d 143 (2005) — 28 U.S. v. Hinton, 113 F. Supp. 3d 1277 (N.D. Ga. 2015) (applying Georgia law) — 14

Illinois Clifton R., In re, 368 Ill. App. 3d 438, 306 Ill. Dec. 444, 857 N.E.2d 843 (1st Dist. 2006) — 14 Doe v. Gainer, 162 Ill. 2d 15, 204 Ill. Dec. 652, 642 N.E.2d 114 (1994) — 6[b] Keith C., In re, 378 Ill. App. 3d 252, 317 Ill. Dec. 165, 880 N.E.2d 1157 (1st Dist. 2007) — 18 Lakisha M., In re, 227 Ill. 2d 259, 317 Ill. Dec. 690, 882 N.E.2d 570 (2008) — 14 Murneigh v. Gainer, 177 Ill. 2d 287, 226 Ill. Dec. 614, 685 N.E.2d 1357 (1997) — 2[b], 12[a] People v. Adams, 363 Ill. App. 3d 34, 299 Ill. Dec. 835, 842 N.E.2d 1187 (1st Dist. 2006) — 14 People v. Banks, 358 Ill. App. 3d 924, 295 Ill. Dec. 722, 833 N.E.2d 928 (1st Dist. 2005) — 14 People v. Beachem, 374 Ill. App. 3d 145, 313 Ill. Dec. 78, 871 N.E.2d 805 (1st Dist. 2007) — 15 People v. Burdine, 362 Ill. App. 3d 19, 298 Ill. Dec. 250, 839 N.E.2d 573 (1st Dist. 2005) — 14 People v. Butler, 354 Ill. App. 3d 57, 289 Ill. Dec. 333, 819 N.E.2d 1133 (1st Dist. 2004) — 14 People v. Calahan, 272 Ill. App. 3d 293, 208 Ill. Dec. 532, 649 N.E.2d 588 (1st Dist. 1995) — 15 People v. Chamberlain, 354 Ill. App. 3d 1070, 291 Ill. Dec. 39, 822 N.E.2d 914 (3d Dist. 2005) — 16 People v. Csaszar, 375 Ill. App. 3d 929, 314 Ill. Dec. 345, 874 N.E.2d 255 (1st Dist. 2007) — 15 People v. Foerster, 359 Ill. App. 3d 198, 295 Ill. Dec. 736, 833 N.E.2d 942 (1st Dist. 2005) — 14 People v. Fort, 373 Ill. App. 3d 882, 311 Ill. Dec. 937, 869 N.E.2d 950 (1st Dist. 2007) — 14 People v. Fort, 362 Ill. App. 3d 1, 298 Ill. Dec. 417, 839 N.E.2d 1064 (1st Dist. 2005) — 14 People v. Foster, 354 Ill. App. 3d 564, 290 Ill. Dec. 421, 821 N.E.2d 733 (1st Dist. 2004) — 14 People v. Garvin, 349 Ill. App. 3d 845, 285 Ill. Dec. 953, 812 N.E.2d 773 (2d Dist. 2004) — 14, 15

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

People v. Gorosteata, 374 Ill. App. 3d 203, 312 Ill. Dec. 492, 870 N.E.2d 936 (1st Dist. 2007) — 15, 16 People v. Hall, 352 Ill. App. 3d 537, 287 Ill. Dec. 736, 816 N.E.2d 703 (1st Dist. 2004) — 15, 16 People v. Hunter, 358 Ill. App. 3d 1085, 294 Ill. Dec. 867, 831 N.E.2d 1192 (4th Dist. 2005) — 15 People v. James, 365 Ill. App. 3d 847, 303 Ill. Dec. 193, 851 N.E.2d 91 (1st Dist. 2006) — 14 People v. Jamison, 373 Ill. App. 3d 902, 311 Ill. Dec. 973, 869 N.E.2d 986 (1st Dist. 2007) — 14 People v. Jennings, 364 Ill. App. 3d 473, 301 Ill. Dec. 331, 846 N.E.2d 934 (1st Dist. 2005) — 14 People v. Johnson, 2011 IL 111817, 355 Ill. Dec. 417, 959 N.E.2d 1150 (Ill. 2011) — 32 People v. Jones, 375 Ill. App. 3d 289, 313 Ill. Dec. 938, 873 N.E.2d 562 (1st Dist. 2007) — 16 People v. Jones, 366 Ill. App. 3d 666, 304 Ill. Dec. 114, 852 N.E.2d 364 (1st Dist. 2006) — 4[b] People v. Kelly, 361 Ill. App. 3d 515, 297 Ill. Dec. 749, 838 N.E.2d 236 (4th Dist. 2005) — 14 People v. McAfee, 366 Ill. App. 3d 726, 304 Ill. Dec. 575, 853 N.E.2d 107 (3d Dist. 2006) — 14 People v. Radford, 359 Ill. App. 3d 411, 296 Ill. Dec. 272, 835 N.E.2d 127 (1st Dist. 2005) — 14 People v. Redmond, 357 Ill. App. 3d 256, 293 Ill. Dec. 708, 828 N.E.2d 1206 (1st Dist. 2005) — 14, 15 People v. Robinson, 374 Ill. App. 3d 949, 313 Ill. Dec. 313, 872 N.E.2d 73 (1st Dist. 2007) — 14 People v. Salinas, 365 Ill. App. 3d 204, 302 Ill. Dec. 325, 848 N.E.2d 624 (2d Dist. 2006) — 15 People v. Slayton, 363 Ill. App. 3d 27, 299 Ill. Dec. 816, 842 N.E.2d 1168 (1st Dist. 2006) — 14 People v. Squire, 365 Ill. App. 3d 842, 303 Ill. Dec. 189, 851 N.E.2d 87 (1st Dist. 2006) — 14 People v. Tolliver, 363 Ill. App. 3d 94, 299 Ill. Dec. 821, 842 N.E.2d 1173 (1st Dist. 2006) — 14 People v. Wealer, 264 Ill. App. 3d 6, 201 Ill. Dec. 697, 636 N.E.2d 1129 (2d Dist. 1994) — 2[b], 10, 14 People v. Young, 365 Ill. App. 3d 753, 302 Ill. Dec. 847, 850 N.E.2d 284 (1st Dist. 2006) — 16 Rogelio S., In re, 378 Ill. App. 3d 211, 317 Ill. Dec. 732, 882 N.E.2d 612 (1st Dist. 2007) — 14

Indiana Balding v. State, 812 N.E.2d 169 (Ind. Ct. App. 2004) — 15, 16 Keeney v. State, 873 N.E.2d 187 (Ind. Ct. App. 2007) — 16 Patterson v. State, 742 N.E.2d 4 (Ind. Ct. App. 2000) — 14 Sharp v. State, 835 N.E.2d 1079 (Ind. Ct. App. 2005) — 14 Smith v. State, 734 N.E.2d 706 (Ind. Ct. App. 2000) — 19[a]

Kansas State v. Glynn, 38 Kan. App. 2d 437, 166 P.3d 1075 (2007) — 15, 23 State v. Maass, 275 Kan. 328, 64 P.3d 382 (2003) — 10 State v. Martinez, 276 Kan. 527, 78 P.3d 769 (2003) — 4[b], 14

Kentucky Petitioner F v. Brown, 306 S.W.3d 80 (Ky. 2010) — 16

Louisiana Samuels v. Goodwin, 950 So. 2d 736 (La. Ct. App. 1st Cir. 2006) — 23 State v. Webb, 133 So. 3d 258 (La. Ct. App. 4th Cir. 2014) — 14

Maine State v. Hutchinson, 2009 ME 44, 969 A.2d 923 (Me. 2009) — 14, 20.5

Maryland Md. Code Ann., Pub. Safety § 2-501 et seq.. See 14 Browne v. State, 215 Md. App. 51, 79 A.3d 410 (2013) — 14 King v. State, 425 Md. 550, 42 A.3d 549 (2012) — 14 State v. Raines, 383 Md. 1, 857 A.2d 19 (2004) — 5, 14 Varriale v. State, 444 Md. 400, 119 A.3d 824 (2015) — 10 Williamson v. State, 413 Md. 521, 993 A.2d 626 (2010) — 20.5

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

Massachusetts Com. v. Smith, 444 Mass. 497, 829 N.E.2d 1090 (2005) — 29 Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 76 A.L.R.5th 703 (1999) — 2[b], 15, 21 Murphy v. Department of Correction, 429 Mass. 736, 711 N.E.2d 149 (1999) — 4[b], 19[a]

Minnesota M.L.M., In re Welfare of, 781 N.W.2d 381 (Minn. Ct. App. 2010) — 4[b], 14 State v. Jackson, 741 N.W.2d 146 (Minn. Ct. App. 2007) — 14 State v. Johnson, 813 N.W.2d 1 (Minn. 2012) — 10 State v. Johnson, 777 N.W.2d 767 (Minn. Ct. App. 2010) — 4[b], 14

Missouri Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997) — 2[b], 5, 6[c], 10, 11, 13, 15, 20[a]

Montana State v. Johnson, 2005 MT 48, 326 Mont. 161, 108 P.3d 485 (2005) — 20[a] State v. Notti, 2003 MT 170, 316 Mont. 345, 71 P.3d 1233 (2003) — 14

Nebraska State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007) — 14

Nevada Gaines v. State, 116 Nev. 359, 998 P.2d 166 (2000) — 3, 4[b], 13, 14, 15

New Jersey A.A. ex rel. B.A. v. Attorney General of New Jersey, 189 N.J. 128, 914 A.2d 260 (2007) — 18 A.A. ex rel. B.A. v. Attorney General of New Jersey, 384 N.J. Super. 67, 894 A.2d 31 (App. Div. 2006) — 15, 16 L.R., State ex rel., 382 N.J. Super. 605, 890 A.2d 343 (App. Div. 2006) — 5, 15 State v. Crawford, 379 N.J. Super. 250, 877 A.2d 356 (App. Div. 2005) — 22 State v. O'Hagen, 189 N.J. 140, 914 A.2d 267 (2007) — 4[b], 14, 16 State v. O'Hagen, 380 N.J. Super. 133, 881 A.2d 733 (App. Div. 2005) — 4[b], 16

New Mexico State v. Blea, 2018-NMCA-052, 425 P.3d 385 (N.M. Ct. App. 2018) — 14, 16.5

New York Gallo v. Pataki, 15 Misc. 3d 824, 831 N.Y.S.2d 896 (Sup 2007) — 30 Kellogg v. Travis, 100 N.Y.2d 407, 764 N.Y.S.2d 376, 796 N.E.2d 467 (2003) — 5 Kellogg v. Travis, 188 Misc. 2d 164, 728 N.Y.S.2d 645 (Sup 2001) — 5 Lunney v. Goord, 290 A.D.2d 687, 736 N.Y.S.2d 718 (3d Dep't 2002) — 23 Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) (applying New York law) — 20.5 People v. Afrika, 9 A.D.3d 876, 779 N.Y.S.2d 692 (4th Dep't 2004) — 14 People v. Aracillo, 196 Misc. 2d 758, 766 N.Y.S.2d 522 (Sup 2003) — 19[a] People v. Blake, 39 A.D.3d 402, 835 N.Y.S.2d 78 (1st Dep't 2007) — 16 People v. Husband, 38 Misc. 3d 957, 954 N.Y.S.2d 856 (N.Y. City Crim. Ct. 2012) — 25 People v. Oliver, 38 Misc. 3d 546, 955 N.Y.S.2d 481 (County Ct. 2012) — 20[a] People v. Sharp, 304 A.D.2d 986, 759 N.Y.S.2d 787 (3d Dep't 2003) — 20[b] People v. Smith, 95 A.D.3d 21, 940 N.Y.S.2d 373 (4th Dep't 2012) — 21 People v. Washington, 33 Misc. 3d 640, 929 N.Y.S.2d 432 (N.Y. City Crim. Ct. 2011) — 14 People v. White, 60 Misc. 3d 304, 76 N.Y.S.3d 800 (Sup 2018) — 17.5 Saladeen v. Parker, 16 A.D.3d 737, 791 N.Y.S.2d 663 (3d Dep't 2005) — 27

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North Dakota State v. Leppert, 2003 ND 15, 656 N.W.2d 718 (N.D. 2003) — 4[b] State v. Norman, 2003 ND 66, 660 N.W.2d 549 (N.D. 2003) — 22

Ohio State v. Carter, 2017-Ohio-1328, 88 N.E.3d 513 (Ohio Ct. App. 1st Dist. Hamilton County 2017) — 27 State v. Consilio, 114 Ohio St. 3d 295, 2007-Ohio-4163, 871 N.E.2d 1167 (2007) — 22 State v. Cremeans, 160 Ohio App. 3d 1, 2005-Ohio-928, 825 N.E.2d 1124 (2d Dist. Montgomery County 2005) — 14 State v. Emerson, 134 Ohio St. 3d 191, 2012-Ohio-5047, 981 N.E.2d 787 (2012) — 24 State v. Steele, 155 Ohio App. 3d 659, 2003-Ohio-7103, 802 N.E.2d 1127 (1st Dist. Hamilton County 2003) — 14, 15 Wilson v. Collins, 517 F.3d 421 (6th Cir. 2008) (applying Ohio law) — 4[b], 8, 11, 13, 14

Oklahoma Sanchez v. State, 2009 OK CR 31, 223 P.3d 980 (Okla. Crim. App. 2009) — 14

Oregon Juvenile Dept. of Multnomah County, State ex rel. v. Orozco, 129 Or. App. 148, 878 P.2d 432 (1994) — 14 State v. Brown, 212 Or. App. 164, 157 P.3d 301 (2007) — 14 State v. Sanders, 343 Or. 35, 163 P.3d 607 (2007) — 14

Pennsylvania Com. v. Derk, 2006 PA Super 60, 895 A.2d 622 (2006) — 5, 20[b] Com. ex rel. Smith v. Pennsylvania Dept. of Corrections, 829 A.2d 788 (Pa. Commw. Ct. 2003) — 16, 19[a] Commonwealth v. Smith, 164 A.3d 1255 (Pa. Super. Ct. 2017) — 10, 20.5 DeWeese v. Weaver, 824 A.2d 364 (Pa. Commw. Ct. 2003) — 16 Dial v. Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999) — 2[b], 5, 6[b], 12[b], 16 El v. Mechling, 848 A.2d 1094 (Pa. Commw. Ct. 2004) — 22 Smith v. Department of Corrections, 837 A.2d 652 (Pa. Commw. Ct. 2003) — 19[b] T.E.H., In re, 2007 PA Super 193, 928 A.2d 318 (2007) — 14, 18

South Carolina Cannon v. South Carolina Dept. of Probation, 361 S.C. 425, 604 S.E.2d 709 (Ct. App. 2004) — 5, 22 Griffin v. Padula, 518 F. Supp. 2d 680 (D.S.C. 2007) (applying South Carolina law) — 14

Tennessee State v. Cannon, 254 S.W.3d 287 (Tenn. 2008) — 28 State v. Scarborough, 201 S.W.3d 607 (Tenn. 2006) — 13, 14

Texas D.L.C., In re, 124 S.W.3d 354 (Tex. App. Fort Worth 2003) — 5, 14, 16, 18 Johnson v. Davis, 178 S.W.3d 230 (Tex. App. Houston 14th Dist. 2005) — 5, 6.5, 11, 12[b], 14, 15 Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) — 14, 31 Velasquez v. Woods, 329 F.3d 420 (5th Cir. 2003) (applying Texas law) — 4[b] Villarreal v. State, 255 S.W.3d 205 (Tex. App. Waco 2008) — 20[a]

Vermont State v. Handy, 191 Vt. 311, 2012 VT 21, 44 A.3d 776 (2012) — 10 State v. Martin, 184 Vt. 23, 2008 VT 53, 955 A.2d 1144 (2008) — 16 State v. Medina, 197 Vt. 63, 2014 VT 69, 102 A.3d 661 (2014) — 10, 16.5 State v. Ritter, 184 Vt. 565, 2008 VT 72, 956 A.2d 1141 (2008) — 14

Virginia

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Anderson v. Com., 274 Va. 469, 650 S.E.2d 702 (2007) — 14 Anderson v. Com., 48 Va. App. 704, 634 S.E.2d 372 (2006) — 14 Johnson v. Com., 259 Va. 654, 529 S.E.2d 769 (2000) — 3, 8, 11, 13, 14, 15 Pharr v. Com., 50 Va. App. 89, 646 S.E.2d 453 (2007) — 14

Washington State v. Babiker, 126 Wash. App. 664, 110 P.3d 770 (Div. 1 2005) — 14 State v. Davis, 125 Wash. App. 59, 104 P.3d 11 (Div. 1 2004) — 16, 23 State v. Lewis, 194 Wash. App. 709, 379 P.3d 129 (Div. 1 2016) — 20[a] State v. Martines, 182 Wash. App. 519, 331 P.3d 105 (Div. 1 2014) — 20.5 State v. Olivas, 122 Wash. 2d 73, 856 P.2d 1076 (1993) — 4[b], 16, 17 State v. S.S., 122 Wash. App. 725, 94 P.3d 1002 (Div. 1 2004) — 16, 23 State v. Surge, 160 Wash. 2d 65, 156 P.3d 208 (2007) — 14 State v. Surge, 122 Wash. App. 448, 94 P.3d 345 (Div. 1 2004) — 14, 15, 16 State v. Ward, 125 Wash. App. 243, 104 P.3d 670 (Div. 1 2004) — 14

Wisconsin State v. Jones, 2004 WI App 212, 277 Wis. 2d 234, 689 N.W.2d 917 (Ct. App. 2004) — 25 State v. Trepanier, 204 Wis. 2d 505, 555 N.W.2d 394 (Ct. App. 1996) — 4[a]

Wyoming Doles v. State, 994 P.2d 315 (Wyo. 1999) — 14, 15, 16

I. PRELIMINARY MATTERS

§ 1[a] Introduction—Scope

This annotation collects and analyzes state and federal cases discussing the validity, construction, and operation of state statutes creating or regulating DNA (deoxyribonucleic acid) databases created for the purpose of enforcing the criminal

law, and regulations implementing 1 such statues. The admissibility and weight of DNA evidence in civil or criminal

trials is, however, beyond the scope of this annotation. 2 Also beyond the scope of this annotation is the liability of

governmental entities or employees allegedly arising from the enforcement of DNA database statutes. 3

A number of jurisdictions have rules, regulations, or legislative enactments directly bearing upon the subject of this annotation. These provisions are discussed herein only to the extent and in the form in which they are reflected in the judicial opinions that fall within the scope of this annotation. The reader is consequently advised to consult the appropriate statutory or regulatory compilations to ascertain the current status of all statutes discussed herein, including those listed in the Jurisdictional Table of Cited Statutes and Cases.

§ 1[b] Introduction—Related annotations

Related Annotations are located under the Research References heading of this Annotation.

§ 2[a] Summary and comment—Generally

The validity of the DNA database statutes of the states has been challenged on numerous grounds, although these challenges have generally been unsuccessful. Thus, a number of courts have held that, under the circumstances, the conduct of state prison officials in drawing blood from prisoners or otherwise enforcing a state's DNA database statute did not violate the Eighth Amendment prohibition of cruel and unusual punishment (§ 3). Where equal protection claims

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have been involved, the courts have held that a state's DNA database statute did not violate the requirements of equal protection in specifying the persons to whom the statute applied, or that the statute would be construed so as to eliminate such a violation (§ 4[b]), although in one case the court held that the DNA database statute violated equal protection requirements by requiring persons convicted of burglary, but not persons convicted of any other offense, to pay a "DNA surcharge" regardless of whether such persons submitted a DNA sample to the state DNA database (§ 4[a]).

Where a statute applying to persons convicted prior to the enactment of the statute has been challenged on ex post facto grounds, courts have expressed the view that, because DNA database statutes are not penal in nature, the application of such a statute to prisoners convicted prior to the enactment of the statute does not violate the federal constitutional prohibition of ex post facto laws found in U.S.C.A. Const. Art. 1, § 10, cl. 1 (§ 5). Likewise, courts have expressed the view that the imposition of administrative punishment on prisoners who failed to comply with a DNA database statute does not violate the federal constitutional prohibition of ex post facto laws, even where the prisoners were convicted prior to the enactment of the statute (§ 6[c]). Also one court has held that the amendment of a state prison regulation prospectively increasing the amount of "good conduct time" lost by an inmate upon refusal to provide the blood sample required by the state DNA database statute did not violate the federal constitutional ex post facto clause (§ 6[d]). Where ex post facto challenges had been based on an assertion that a prisoner's failure to comply with the statute has the effect of delaying the prisoner's parole eligibility, no ex post facto violation has been found where the parole was not mandatory (§ 6[b]), but a violation has been found where mandatory parole was delayed (§ 6[a]).

A number of challenges to DNA database statutes have been consistently unsuccessful. Thus, courts have expressed the views that a DNA database statute is a neutral law of general applicability and therefore its enforcement does not violate the First Amendment right to the free exercise of religion of prisoners who claim that the drawing of blood violates their religious beliefs (§ 7); that a state DNA database statute does not violate the right to privacy of the persons subject to the statute (§ 10); that, because DNA samples are not testimonial in nature, the enforcement of a DNA database statute does not violate the Fifth Amendment right against self–incrimination (§ 11); and that the nonconsensual extraction of blood from a prison inmate pursuant to a state DNA database statute does not violate the requirements of substantive due process (§ 13). Those courts faced with the question whether a DNA database statute authorizes an unreasonable search and seizure in violation of the Fourth Amendment (and occasionally analogous state constitutional provisions) have uniformly expressed the view that it does not, whether the courts have applied traditional Fourth Amendment analysis (§ 14), the doctrine of prisoners' reduced expectation of privacy (§ 15), or the "special needs" doctrine (§ 16).

A variety of other challenges to DNA database statutes have been addressed by the courts. When considering procedural due process challenges, a number of courts have explicitly or apparently expressed the view that a DNA database statute does not deny procedural due process to those who were required by the statute to provide a DNA sample, although the statute does not provide for a prior hearing on the issue of the applicability of the statute (§ 8), and one court has held that, under the circumstances, the amendment of a state prison regulation implementing the state's DNA database statute did not deny procedural due process to those prisoners subject to the statute (§ 9). Another court has held that, under the circumstances, a state's DNA database statute was not shown to be unconstitutionally vague (§ 17). Considering assertions that a DNA database statute violated the principle of separation of powers, one court has held that, under the circumstances, the statute did not present such a violation, as the statute did not deprive the prisoner of eligibility for parole (§ 12[b]), while in another case the court held that, under the circumstances, a provision in the DNA database statute, together with its implementing regulations, violated the constitutional principle of separation of powers, where the provision and its regulations required courts to issue contempt orders against persons refusing to provide the blood sample called for by the statute (§ 12[a]).

In a number of cases, the courts have addressed questions concerning the construction or operation of a DNA database statute. Thus, courts have held, under the circumstances, that a DNA database statute could properly be applied to juveniles, even though the statute affected juveniles beyond the age of majority, in that the DNA samples of the juveniles' would remain the DNA database indefinitely (§ 18); that a DNA database statute applied to a prisoner who had

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previously been convicted of one of the predicate offenses enumerated in the statute, although, at the time of the statute's enactment, he was incarcerated for a different offense that was not a predicate offense under the statute (§ 19[a]); that a DNA database statute applied to a prisoner convicted of a predicate offense specified in the statute, even though the prisoner had been convicted under a prior version of the codification of that offense (§ 20[a]); and that, as a matter of statutory construction, a state's DNA database statute was intended, or was permitted by other state statutes, to operate retroactively so as to apply to persons convicted prior to the enactment of the database statute (§ 22). Another court has held that, under the circumstances, it was not necessary, before the DNA database statute could take effect, for specific regulations to be promulgated to spell out when and how reasonable force could be used to acquire DNA samples from nonconsenting persons (§ 21).

On the other hand, one court has held that, under the circumstances, a prisoner on probation could not be ordered to submit a blood sample under the state's DNA database statute, as the statute applied only to persons who were still incarcerated (§ 19[b]), while another court has held that, since attempted murder was not a predicate offense under the DNA database statute, a criminal defendant convicted of attempted murder was not subject to the statute (§ 20[b]).

§ 2[b] Summary and comment—Practice pointers

All fifty states have enacted statutes creating a DNA database, 4 as has the federal government. 5

While DNA samples are most frequently taken from a blood test, 6 they can also be acquired by taking a saliva sample 7 or

a swab from the inside of the mouth. 8 It is clear that the drawing of blood is a "search" under the Fourth Amendment, 9

as is the taking of a saliva sample. 10 While most DNA databases are created in an effort to aid law enforcement, there

are other possible uses of such databases. 11

Where an action challenging the validity or operation of a DNA database statute is commenced prior to the taking of

the challenged DNA sample, the remedy usually sought is declaratory and injunctive relief. 12 Where the sample has already been taken, the plaintiff may seek monetary damages for the asserted violations of the plaintiff's constitutional

rights, as well as injunctive relief requesting that the sample be destroyed, 13 or that its analysis be expunged from the

database. 14 The prisoner may also seek an injunction precluding any subsequent order to submit to DNA testing. 15 In such a case, the action is not moot, both because the plaintiff may still obtain redress and because the question raised

by the action is likely to recur. 16

It may be appropriate to maintain an action challenging a DNA database statute as a class action. 17

Where a prison inmate is punished under general prison regulations for failing to provide a required DNA sample, it

may be possible to challenge the validity or applicability of such regulations in the context of DNA sampling. 18

II. VALIDITY OF DNA DATABASE STATUTES

§ 3. Cruel and unusual punishment

[Cumulative Supplement]

The courts in the following cases held that, under the circumstances, the conduct of state prison officials in drawing blood from prisoners or otherwise enforcing the state DNA database statute did not violate the Eighth Amendment prohibition of cruel and unusual punishment.

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In a state prisoner's action under 42 U.S.C.A. §§ 1983, 1985, 1988, challenging Colorado's DNA database statute, West's C.R.S.A. § 17–2–201(5)(g), the court, in Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), reh'g denied, (Jan. 17, 1997), held that the prisoner's allegation that prison officials exposed him to possible physical abuse by indicating, in front of other inmates, that he had to submit to DNA tests, thus disclosing to those other inmates that the prisoner was a sex offender, was insufficient to state a valid claim for cruel and unusual punishment under the Eighth Amendment. As noted in § 4[b] and § 8, respectively, the court also held that the statute's being limited to sex offenders did not deny inmates convicted of such offenses the equal protection of the law, and that the statute did not deny procedural due process to persons subject to the statute.

Denying a state prisoner's habeas corpus claim, the court, in Kruger v. Erickson, 875 F. Supp. 583 (D. Minn. 1995), aff'd on other grounds, 77 F.3d 1071 (8th Cir. 1996), held that the nonconsensual drawing of blood from the prisoner in order to provide a DNA sample pursuant to Minnesota's DNA database statute, M.S.A. § 299C.155 (1991), did not amount to the unnecessary and wanton infliction of pain prohibited by the Eighth Amendment where a trained technician withdrew the blood in accordance with medically acceptable procedures. The blood was taken, the court stressed, for the legitimate interest of constructing a DNA database of criminal sexual offenders pursuant to the statute. As noted in § 6[c] and § 13, respectively, the court also held that threatening prisoners who failed to provide DNA samples with a loss of "good time credit" did not violate the ex post facto clause as applied to prisoners convicted before the statute's enactment, and that nonconsensual drawing of blood in order to provide a DNA sample did not violate the inmate's right to substantive due process.

Dismissing a class action brought against state prison officials by prisoners subject to the North Carolina DNA database statute, N.C.G.S. § 15A–266 et seq., the court, in Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994), held that prison employees' use of reasonable force against those inmates refusing to provide the required blood sample did not violate the Eighth Amendment prohibition of cruel and unusual punishment. Stating that, in order to state a claim under the Eighth Amendment, the challenged force was required to be applied for the purpose of causing harm, the court stressed that there were no facts or allegations that the force being used to obtain DNA samples from inmates was being applied with the intention of harming the inmates. It was important to realize, the court cautioned, the serious impact an inmate's defiance of a lawful order could have on the discipline within a correctional institution. The preservation of discipline was invoked whenever an inmate was given a lawful order by correctional officials, the court said, because one inmate's refusal of an order might encourage others to refuse as well. Obviously, the court emphasized, order and discipline could not be maintained if inmates were allowed to refuse to comply with lawful directions. Observing that the allowance of the use of force to ensure compliance with a lawful order did not mean that any amount of force would be tolerated, the court declared that, if correctional officers used more force that was reasonably necessary under the circumstances, they would then be answerable under the Eighth Amendment. Specifically, said the court, no claim arose under that amendment unless the challenged conduct involved punishment or more than an ordinary lack of due care for the prisoner's interest or safety. The court stressed that the infliction of pain in the course of a prison security measure did not amount to cruel and unusual punishment simply because it appeared in retrospect that the degree of force was unreasonable, and hence unnecessary in the strict sense.

Dismissing, in part, a prisoner's 42 U.S.C.A. § 1983 action against various state prison officials claiming that Washington's state DNA database statute, R.C.W. 43.43.754, violated several of the prisoner's constitutional rights, the court, in Ryncarz v. Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993), held that the prisoner failed to state a claim for cruel and unusual punishment under the Eighth Amendment. Alleging that prison employees failed to take precautions in conducting the blood draw from the prisoner, he claimed that (1) an "unsheathed needle" was used and that his arm was not sanitized; (2) the draw was conducted in such a manner as to cause the blood vessels to rupture and tear, forcing blood to flow into the "surrounding muscle fibers" of the prisoner's arm; (3) he was "unnecessarily exposed to deadly virus, bacteria and contamination, compromising his right to be free from the threat of infection; and (4) he was denied access to medical care until the following day, and that as a result of the delay, he had "internal scars, hemorrhaging and cannot enjoy the full freedom of strength and movement of his left arm." Even assuming that the prisoner's injuries

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were real, the court declared, the facts alleged simply did not amount to an Eighth Amendment claim for deliberate indifference to serious medical needs. At the very most, the court concluded, the prisoner stated a claim for medical malpractice. As noted in § 7, the court also expressed the view that the statute does not violate prisoners' right to the free exercise of religion.

CUMULATIVE SUPPLEMENT

Cases:

California DNA Act's requirement that prison inmates provide DNA samples, and allowing reasonable force to obtain a DNA sample if the subject refused testing, did not violate the Eighth Amendment, even if inmate found the experience uncomfortable, frustrating, and humiliating. U.S.C.A. Const.Amend. 8; West's Ann.Cal.Penal Code § 295 et seq. Hamilton v. Brown, 630 F.3d 889 (9th Cir. 2011).

Taking of state prison inmate's DNA sample pursuant to statute did not violate Eighth Amendment proscription against cruel and unusual punishment absent any evidence establishing that prison officials disregarded an excessive risk to the inmate's health or safety. U.S. Const. Amend. VIII; West's C.R.S.A. § 16–11–102.3. Esnault v. Burnett, 83 Fed. Appx. 279 (10th Cir. 2003).

Statute requiring genetic marker testing for certain enumerated offenders does not violate Eighth Amendment prohibition against cruel and unusual punishment; blood draw to secure material for test is neither barbarous nor involves wanton physical punishment. U.S. Const. Amend. 8. Gaines v. State, 998 P.2d 166 (Nev. 2000).

[Top of Section]

[END OF SUPPLEMENT]

§ 4[a] Equal protection—Requirement of equal protection violated

There is authority holding that a state DNA database statute violated equal protection requirements.

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Modifying the defendant's sentence for his burglary conviction so as to remove a $250 DNA surcharge, the court, in State v. Trepanier, 204 Wis. 2d 505, 555 N.W.2d 394 (Ct. App. 1996), held that the state's DNA database statute, W.S.A. 973.046, violated the requirements of equal protection in requiring all persons convicted of burglary, and only such persons, to pay a DNA surcharge whether or not such persons submitted a DNA sample to the DNA database. Persons convicted of other offenses were required to pay the surcharge only if they were ordered to submit a sample. Although acknowledging that, where the state was not discriminating based upon a suspect classification, the classification needed only to bear a rational relationship to a legitimate government interest, therefore the court determined that the statutory classification at issue was not based upon a substantial distinction that made burglars different from any of the other classes. Accepting the fact that burglars had high recidivism rates, the court reasoned, this fact was not rationally related to the requirement that they must pay the DNA surcharge when not providing a sample. Burglars were not so substantially different from all other groups encompassed under the statute, the court declared, to justify a rule that all burglars pay the surcharge regardless of whether they submitted a biological sample to the DNA database.

§ 4[b] Equal protection—Requirement of equal protection not violated

[Cumulative Supplement]

In the following cases, the courts held that a state DNA database statute did not violate the requirements of equal protection in specifying the persons to whom the statute applied, or that the statute would be construed so as to eliminate such a violation.

The court in Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999), held that the Connecticut statute, Conn. Gen. Stat. § 54–102g, requiring convicted sex offenders incarcerated on the statute's effective date to submit a blood sample for analysis and inclusion in the state's DNA data bank, did not violate the federal Equal Protection Clause, inasmuch as there was no evidence that there was a compelling need to test other violent felons, and the statute's claimed underinclusiveness did not provide a basis for invalidating it. The defendant had argued that the statute violates the Equal Protection Clause because it impermissibly distinguishes between individuals convicted of crimes characterized as sexual offenses and those convicted of other violent offenses, targets incarcerated sex offenders but not prior sex offenders who currently reside in the community, and targets convicted sex offenders whether or not their current incarceration is for a sex offense. The court held that since the defendant alleged a classification based on the nature of the offense, the challenge to the DNA statute was entitled to only "rational basis" and not "strict scrutiny" review. As discussed in § 16, the court also held that Conn. Gen. Stat. § 54–102g did not violate the Fourth Amendment.

In a state prisoner's action under 42 U.S.C.A. §§ 1983, 1985, 1988, challenging the Colorado DNA database statute, West's C.R.S.A. § 17–2–201(5)(g), the court, in Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), reh'g denied, (Jan. 17, 1997), held that the statute, although applying only to sex offenders, did not deny persons convicted of sex offenses equal protection of the law. The court reasoned that a rational relationship existed between the government's decision to classify inmates as convicted sex offenders and the government's stated objective to investigate and prosecute unsolved and future sex crimes. As noted in § 3 and § 8, respectively, the court also held that the prisoner's allegations were insufficient to state a valid Eighth Amendment claim, and the statute did not deny procedural due process to thoes persons subject to the statute.

Reversing a judgment for the plaintiff prison inmate, the court, in Murphy v. Department of Correction, 429 Mass. 736, 711 N.E.2d 149 (1999), held that the state DNA database statute, M.G.L.A. c. 22E, § 1 et seq., would be construed as applying to persons incarcerated on or after the statute's effective date, and as so construed the statute did not violate the requirements of the state and federal equal protection clauses. The statute applied to a person convicted of a predicate offense and "who is incarcerated … on the effective date of this act, notwithstanding the date of such conviction." Rejecting the inmate's contention that the statute applied only to those who were incarcerated for a predicate offense

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on the effective date, the court, as discussed in § 19[a], declared that the statutory language was clear and required any person ever convicted of a predicate offense, who was incarcerated on the effective date of the statute, to provide a DNA sample. The statutory distinction between individuals who were incarcerated and those who were not did not violate the requirements of equal protection, the court said, because that distinction was made in the interests of practicality, administrative convenience, and lessening the burden on convicted persons, which were permissible and rational purposes under the equal protection clause. The court declared, however, since under a literal reading of the statute, it applied only to those persons incarcerated on the date of the statute's enactment, such a literal reading resulted in a distinction between those who were incarcerated on that date and who were required under the statute to submit a DNA sample, and those who were subsequently incarcerated and who were not subject to the statute. Pointing out that because some conceivable basis for a statutory classification was required, the court said that it was unable to conceive of any rational purpose, whether permissible or invidious, that might be served by distinguishing between persons who were actually incarcerated on the statute's effective date and those who were incarcerated after that date. The court therefore adopted the construction suggested by the Commonwealth, that the statute be read to apply to anyone incarcerated on or after the statute's effective date. This construction, the court reasoned, presented a minimal deviation from the literal language of the statute and directly addressed the problem—that the statute's application was arbitrarily based on incarceration on a particular day.

Affirming orders requiring various criminal defendants to submit a DNA sample under the state's DNA database statute, West's RCWA 43.43.754, the court, in State v. Olivas, 122 Wash. 2d 73, 856 P.2d 1076 (1993), held that the statute did not violate the state or federal equal protection clauses, even though the statute applied only to persons who had committed "sex offenses" or "violent offenses." Determining that neither a liberty interest nor a suspect or semisuspect class was involved, and that freedom from a blood test was not a fundamental right, the court declared that the rational basis test applied to the equal protection challenge. The court said that the purpose of the statute was to investigate and prosecute sex offenses and violent offenses, and there was a rational relationship between the interest of the government in law enforcement and the application of the statute to this class of persons. As noted in § 16 and § 17, respectively, the court also held that the statute did not authorize an unreasonable search and seizure, and was not unconstitutionally vague.

CUMULATIVE SUPPLEMENT

Cases:

Pre-amended statute that required person convicted of felony against person to submit DNA sample but which did not require persons convicted of other felonies to submit DNA sample did not violate equal protection; classification was rationally related to legislature's determination that felonies against persons were more likely to yield DNA evidence that could be used to identify perpetrator, and legislature could reasonably conclude that people willing to commit assaultive crimes were more likely to do so in future. U.S.C.A. Const.Amend. 14; AS 11.56.760(a), 44.41.035(b). Nason v. State, 102 P.3d 962 (Alaska Ct. App. 2004).

Involuntary extraction of DNA samples from all those convicted of felonies did not create an overly inclusive classification that infringed upon defendant's fundamental right of privacy without a compelling state interest, in violation of equal protection rights; defendant failed to demonstrate that two similarly situated groups were treated in an unequal manner, inasmuch as the DNA collection laws treated all persons convicted of felonies the same. U.S.C.A. Const.Amend. 14; West's Ann.Cal.Const. Art. 1, § 7; West's Ann.Cal.Penal Code § 296.1. People v. Travis, 139 Cal. App. 4th 1271, 44 Cal. Rptr. 3d 177 (1st Dist. 2006) [citing annotation].

Juvenile, who pled nolo contendre to burglary, and whose adjudication was withheld, failed to establish that legislature targeted a suspect class when it amended DNA testing statute to include persons convicted of burglary, and, thus, statute did not violate her right of equal protection, where amendment was reasonable result of legislature's findings that persons

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who commit burglary go on to commit more violent crimes, and was rationally related to state's legitimate interest in identifying perpetrators. U.S.C.A. Const. Amend. 14. L.S. v. State, 805 So. 2d 1004 (Fla. Dist. Ct. App. 1st Dist. 2001).

Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under State law was not unconstitutional on its face or as applied to defendant convicted of possession of a controlled substance. S.H.A. 730 ILCS 5/5–4–3. People v. Jones, 304 Ill. Dec. 114, 852 N.E.2d 364 (App. Ct. 1st Dist. 2006).

Collection and cataloging of DNA information pursuant to statute requiring persons convicted of certain offenses to submit to collection of blood and saliva samples does not violate Fourth Amendment's protection against unreasonable searches and seizures; state's justification for DNA testing of convicted persons is accurately solving future crimes to protect citizens from dangerous criminals, and, weighing this substantial state interest against a convicted person's right to privacy, the balance must tip in favor of the state's substantial interest. U.S.C.A. Const. Amend. 4; K.S.A. 21–2511. State v. Martinez, 78 P.3d 769 (Kan. 2003).

Juvenile ordered to submit DNA sample for identification purposes after being adjudicated delinquent of a misdemeanor arising from the same set of circumstances as a charged felony failed to demonstrate that DNA-collection statute violated equal protection, where juvenile failed to establish that similarly situated groups were treated in an unequal manner by the DNA-collection statute. U.S.C.A. Const.Amend. 14; M.S.A. Const. Art. 1, § 2; M.S.A. § 609.117(1)(2). In re Welfare of M.L.M., 781 N.W.2d 381 (Minn. Ct. App. 2010).

Defendant did not show that a statute requiring certain offenders to submit a DNA sample for identification purposes, as applied to those convicted of a misdemeanor arising from the same set of circumstances as a charged felony, violated the constitutional guarantee of equal protection of the laws, even though defendant, who was convicted of a misdemeanor, claimed that the similarly situated classes being compared were felons and nonfelons; felons and nonfelons were not similarly situated by definition, and defendant failed to identify any similarly situated misdemeanants who were being treated differently due to the enforcement of the statute. U.S.C.A. Const.Amend. 14; M.S.A. Const. Art. 1, § 2. State v. Johnson, 777 N.W.2d 767 (Minn. Ct. App. 2010).

Statute requiring the genetic marker testing of individuals convicted of specific enumerated offenses was rationally related to legitimate governmental interest in apprehension of repeat and violent offenders, and thus did not violate Fourteenth Amendment's equal protection clause. U.S. Const. Amend. 14; N.R.S. 176.0913. Gaines v. State, 998 P.2d 166 (Nev. 2000).

New Jersey's DNA Database and Databank Act of 1994, which required all persons convicted of a crime or found not guilty by reason of insanity submit a DNA sample, did not violate equal protection; Act was rationally related to state's interest of solving future crimes, exonerating others who have wrongfully been convicted, and deterring crimes, all similarly situated individuals—those convicted of crime– were treated equally, overriding public need existed for uses of DNA data, and the physical intrusion was of limited nature. U.S.C.A. Const.Amend. 14; N.J.S.A. Const. Art. 1, par. 1; N.J.S.A. 53:1–20.17 et seq. State v. O'Hagen, 914 A.2d 267 (N.J. 2007).

New Jersey's DNA Database and Databank Act of 1994, which required all persons convicted of a crime or found not guilty by reason of insanity submit a DNA sample, did not violate equal protection; Act was rationally related to state's interest of solving future crimes, exonerating others who have wrongfully been convicted, and deterring crimes, all similarly situated individuals—those convicted of crime- were treated equally, overriding public need existed for uses of DNA data, and the physical intrusion was of limited nature. U.S.C.A. Const.Amend. 14; N.J.S.A. Const. Art. 1, par. 1; N.J.S.A. 53:1-20.17 et seq. State v. O'Hagen, 189 N.J. 140, 914 A.2d 267 (2007).

State's interest in deterring and detecting all recidivist acts was rationally related to requirement that all persons convicted of a crime, as opposed to only those convicted of disorderly persons offense, submit a blood or other biological sample

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for purpose of DNA profiling, and thus, New Jersey's DNA Database and Databank Act of 1994 did not violate equal protection. U.S.C.A. Const.Amend. 14; N.J.S.A. Const. Art. 1, par. 1; N.J.S.A. 53:1-20.20(g). State v. O'Hagen, 380 N.J. Super. 133, 881 A.2d 733 (App. Div. 2005), certification granted, 185 N.J. 391, 886 A.2d 661 (2005) (citing annotation).

Statutory provisions authorizing DNA testing for persons convicted of certain enumerated nonsexual violent felonies were rationally related to legitimate government purposes of apprehending and identifying perpetrators of future sex related and violent crimes, exonerating the innocent, and increasing cost efficiencies, and thus satisfied the rational basis standard of review for equal protection analysis. U.S. Const. Amend. XIV; NDCC 31–13–03. State v. Leppert, 2003 ND 15, 656 N.W.2d 718 (N.D. 2003).

There was no evidence that Ohio legislature enacted statute requiring the collection of DNA specimens from convicted felons with racially discriminatory intent, as required for state prisoner to establish claim that statute violated equal protection because it had disproportionate adverse impact on African–Americans, given that African–Americans made up a disproportionately large percentage of Ohio prison populations as compared to their representation in the general population. Ohio R.C. § 2901.07. Wilson v. Collins, 517 F.3d 421 (6th Cir. 2008) (applying Ohio law).

State prison officials' collection of a DNA sample from prisoner for registration in a DNA database pursuant to Texas law did not violate prisoner's Fourth Amendment rights. U.S. Const. Amend. IV; V.T.C.A., Government Code § 411.148. Velasquez v. Woods, 329 F.3d 420 (5th Cir. 2003) (applying Texas law).

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§ 5. Ex post facto law—requiring provision of DNA sample

[Cumulative Supplement]

The courts in the following cases expressed the view that, because DNA database statutes are not penal in nature, the application of such a statute—requiring those persons convicted of specified offenses to provide a DNA sample—to prisoners convicted prior to the enactment of the statute does not violate the federal constitutional prohibition of ex post facto laws found in U.S.C.A. Const. Art. 1, § 10, cl. 1.

US Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), as amended, (Apr. 27, 1992) Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995) Kruger v. Erickson, 875 F. Supp. 583 (D. Minn. 1995), aff'd on other grounds, 77 F.3d 1071 (8th Cir. 1996) Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995) Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), cert. denied, 119 S. Ct. 520, 142 L. Ed. 2d 431 (U.S. 1998) Ariz Matter of Appeal in Maricopa County Juvenile Action Numbers JV-512600 and JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. Div. 1 1996), review denied, (Jan. 14, 1997) (holding under both federal ex post facto clause and A.R.S. Const. Art. 2, § 25) Mo Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997) Pa Dial v. Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999)

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See also Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994), in which the court stated that an alleged violation of the ex post facto clause arising from the enforcement of a state DNA database statute is not actionable under the Fourteenth Amendment as a violation of substantive due process.

The court, in Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995), held that ORS 137.076, requiring persons convicted of murder, a sexual offense, or conspiracy or attempt to commit a sexual offense to submit a blood sample to the state department of corrections to be added to a DNA data bank, does not violate the federal constitutional prohibition of ex post facto laws found in U.S.C.A. Const. Art. 1, § 10, cl. 1, even though the statute applies to persons convicted before the statute's enactment. Stressing that not every change in a convicted person's situation violates the Ex Post Facto Clause, the court declared that a law implicates the Ex Post Facto Clause only if it criminalizes conduct that was not a crime when it was committed, increases the punishment for a crime beyond what the punishment was at the time the act was committed, or deprives a person of a defense available at the time the act was committed. Because the statute does not amend the state's substantive criminal laws, the court said, it raises ex post facto concerns only if requiring prisoners to submit a blood sample for a DNA data bank constitutes "punishment." Emphasizing that legislation may lawfully impose new requirements on convicted persons if the statute's overall design and effect indicates a non–punitive intent, the court held that, because the statute's obvious purpose is to create a DNA data bank to assist in the identification, arrest, and prosecution of criminals, not to punish convicted murderers and sexual offenders, it does not violate the prohibition against ex post facto punishment. As noted in § 8 and § 15, respectively, the court also held that the statute's failure to provide for a hearing does not violate the requirements of procedural due process, and that the statute does not authorize an unconstitutional search and seizure under the Fourth Amendment.

CUMULATIVE SUPPLEMENT

Cases:

New York's DNA-indexing statute, requiring certain classes of convicted felons to provide DNA samples to be maintained in state database, did not retroactively alter definition of crimes or increase punishment for criminal acts, and thus did not violate Ex Post Facto Clause. U.S.C.A. Const. Art. 1, § 10, cl. 1; N.Y.McKinney's Executive Law § 995 et seq. Grant v. Goord, 155 Fed. Appx. 551 (2d Cir. 2005).

Application of Pennsylvania's DNA Detection of Sexual and Violent Offenders Act, which required felons to give DNA sample for use in future investigation and identification purposes, was not penal and therefore could not offend the ex post facto clause. U.S.C.A. Const. Art. 1, § 10, cl. 1; 44 Pa.C.S.A. § 2301 et seq. Johnson v. Pennsylvania Bd. of Probation and Parole, 163 Fed. Appx. 159 (3d Cir. 2006).

South Carolina law requiring that certain prisoners provide DNA samples for South Carolina's DNA bank and pay a $250 processing fee was not punitive in nature and, thus, did not violate ex post facto clause; legislature's intent in requiring the production of the samples was to protect the public, and not to punish those individuals who had committed specified crimes, purpose of law was to allow the State Law Enforcement Division (SLED) to build up the State DNA database by developing DNA profiles on samples for law enforcement purposes and for humanitarian and nonlaw enforcement purposes, law was codified in title of South Carolina Code dealing with law enforcement and public policy, rather than crimes and punishments, and processing fees were relatively small and were used as primary source of funding DNA database. U.S.C.A. Const. Art. 1, § 9, cl. 3; S.C.Code 1976, § 23–3–600 et seq. In re DNA Ex Post Facto Issues, 561 F.3d 294 (4th Cir. 2009).

DNA Act requiring collection of DNA samples from convicted felons for national database was not an impermissibly retroactive law that violated Ex Post Facto law as applied to felon who was convicted prior to Act's extension to his crime, as law was neither punitive in purpose or effect. U.S.C.A. Const.Art. 1, § 9, cl. 3; DNA Analysis Backlog Elimination Act of 2000, § 2 et seq., 42 U.S.C.A. § 14135 et seq. U.S. v. Hook, 471 F.3d 766 (7th Cir. 2006).

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California Penal Code section which required certain felons to provide blood, saliva, hand and finger print samples to a DNA data bank did not violate Due Process Clause or Ex Post Facto Clause. U.S. Const. Art. I § 10, cl. 1; U.S. Const. Amend. XIV; West's Ann. Cal. Penal Code § 296. Turner v. Carpenter, 63 Fed. Appx. 318 (9th Cir. 2003).

Non–consensual extraction of DNA from a federal prisoner who was convicted of bank robbery, for placement of prisoner's DNA profile into the FBI's Combined DNA Index System (CODIS), as required under the DNA Analysis Backlog Elimination Act of 2000, did not violate the ex post facto clause even though the DNA Act was not enacted until after prisoner's conviction for bank robbery, and even though the DNA Act criminalized an individual's refusal to provide a DNA sample; the DNA Act did not amend substantive criminal laws and was not designed to punish those already convicted, and non–compliance was punished as a separate offense. U.S.C.A. Const. Art. 1, § 9, cl. 3; DNA Analysis Backlog Elimination Act of 2000, § 2(a, e), 42 U.S.C.A. § 14135(a, e). Vore v. U.S. Dept. of Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003).

State statute that required certain offenders to provide DNA samples before release from prison had a legitimate, non– penal legislative purpose and therefore did not run afoul of the Ex Post Facto Clause even where the statute did not become effective until after inmate whose sample was taken was convicted. U.S. Const. Art. I § 9, cl. 3; West's C.R.S.A. § 16–11–102.3. Esnault v. Burnett, 83 Fed. Appx. 279 (10th Cir. 2003).

Georgia statute requiring DNA sampling of all convicted felons did not violate ex post facto clause of the United States or Georgia constitutions; although DNA sample could be taken by force in the case of a refusal, no prison sentences would be extended due to failure to cooperate with statute, and purpose of statute was not to punish, but to obtain a reliable, immutable form of identification for placement in a DNA database. West's Ga.Code Ann. § 24–4–60. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003).

Amendments to the DNA and Forensic Identification Data Base and Data Bank Act, requiring DNA collection and sampling of sex offenders, did not constitute punishment, and, thus, retroactive application of amendments to defendant did not violate Ex Post Facto Clauses of Federal or State Constitution; amendments were not enacted to punish convicted felons, but, instead, were enacted to establish a DNA database to assist in the identification, arrest, and prosecution of criminals. U.S.C.A. Const. Art. 1, § 10, cl. 1; West's Ann.Cal. Const. Art. 1, § 9; West's Ann.Cal.Penal Code §§ 296, 296.1. People v. Milligan, 83 Cal. Rptr. 3d 550 (Cal. App. 4th Dist. 2008).

Amended statute requiring involuntary extraction of DNA samples from all those convicted of felonies did not increase defendant's punishment in violation of ex post facto principles; DNA sample collection requirement was not enacted to punish convicted felons, but rather, to establish a DNA database to assist in the identification, arrest, and prosecution of criminals. U.S.C.A. Const. Art. 1, § 10, cl. 1; West's Ann.Cal. Const. Art. 1, § 9; West's Ann.Cal.Penal Code § 296.1. People v. Travis, 139 Cal. App. 4th 1271, 44 Cal. Rptr. 3d 177 (1st Dist. 2006) [citing annotation].

Statute requiring all felons in custody of Commissioner of Correction to submit to collection of DNA sample, and deeming failure to do so class D felony, was applied prospectively, rather than retroactively, and therefore application of statute to defendant after he had begun serving sentence for robbery-related convictions did not violate his right to due process or ex post facto clause; statute did not apply to defendant's prior robbery-related convictions, and defendant know of statute's requirements at time he refused to provide DNA sample. U.S.C.A. Const. Art. 1, § 10, cl. 1; U.S.C.A. Const.Amend. 14; C.G.S.A § 54–102. State v. Drakes, 143 Conn. App. 510, 70 A.3d 1104 (2013).

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know of statute's requirements at time he refused to provide DNA sample. U.S.C.A. Const. Art. 1, § 10, cl. 1; U.S.C.A. Const.Amend. 14; C.G.S.A. § 54–102. State v. Banks, 143 Conn. App. 485, 71 A.3d 582 (2013).

Retroactive application, against defendant who was nearing the end of his probation imposed after he pled guilty to false imprisonment with a deadly weapon, of statute requiring persons convicted of certain crimes and still incarcerated or subject to court supervision to provide blood and other biological samples for DNA testing did not violate ex post facto clause; statute did not alter the elements of defendant's criminal conduct or increase the penalty for his crime. U.S.C.A. Const. Art. 1, § 10, cl. 1; West's F.S.A. § 943.325. Morrow v. State, 914 So. 2d 1085 (Fla. Dist. Ct. App. 4th Dist. 2005).

The DNA Collection Act, which allows collection of deoxyribonucleic acid (DNA) samples from certain convicted persons for submission to State DNA data bank, based on a qualifying conviction which may have occurred before effective date of Act, does not violate the Ex Post Facto Clauses of the United States Constitution or the Maryland Declaration of Rights, because it is a civil statute that does not add subsequent punishment for prior conviction. (Per Cathell, J., with one Justice concurring and two Justices concurring in judgment.) U.S.C.A. Const. Art. 1, § 10, cl. 1; West's Ann. Md. Const.Declaration of Rights, Art. 17; West's Ann. Md. Code, Public Safety, §§ 2-501 et seq. State v. Raines, 383 Md. 1, 857 A.2d 19 (2004) (citng annotation).

DNA Database and Databank Act was not penal in nature, and, as such, its application did not implicate constitutional ex post facto proscriptions; none of the Act's stated purposes for obtaining DNA samples from certain convicted offenders furthered a penal or punishment goal, but assisted in identification, arrest, investigation, and defense of offenders and victims, Act did not appear in criminal code, but in section of code dealing with state police administration, and, even if it were to be concluded that DNA sampling might be useful in deterring future criminal activity, that alone was not sufficiently penal to trigger ex post facto considerations because deterrence served multiple goals, including those that were non-punitive. U.S.C.A. Const. Art. 1, § 10, cl. 1; N.J.S.A. Const. Art. 4, § 7, par. 3; N.J.S.A. 53:1-20.18, 53:1-20.21. State ex rel. L.R., 382 N.J. Super. 605, 890 A.2d 343 (App. Div. 2006).

The Court of Appeals of New York in Kellogg v. Travis, 100 N.Y.2d 407, 764 N.Y.S.2d 376, 796 N.E.2d 467 (2003), noting that since 1996, New York has maintained a DNA identification index, which consists of a databank of the genetic markers of certain criminal offenders for use by law enforcement officials investigating subsequent crimes (N.Y. Exec. Law § 995-c, which requires those offenders to submit a DNA sample that is then forwarded for laboratory analysis "only for those markers having value for law enforcement identification purposes" (N.Y. Exec. Law § 995-c [5]), and in 1999, the Legislature amended the Executive Law to increase the number of offenses subject to the index, creating two categories of additional offenses, and the plaintiff challenged the 1999 amendment to the DNA identification index law as an unconstitutional ex post facto law (U.S. Const art I, § 10), arguing that because the amendment, by its terms, applies to prisoners sentenced before its effective date, it violates the Constitution, held that the amendment did not violate the ex post facto clause. The court held that because the purpose of the DNA identification index is to aid in investigation, and not to punish, the retroactive application of the amendment comports with the Ex Post Facto Clause.

Amendment to statute creating data bank containing information on deoxyribonucleic acid (DNA) profiles of designated felony offenders, previously confined to those convicted after statute's enactment, to require designated felons convicted prior to enactment whose sentences had not expired to provide DNA samples, did not place those offenders in double jeopardy; felons were neither prosecuted second times for crimes of conviction, nor punished second time for those crimes. U.S.C.A. Const. Amend. 5; McKinney's Executive Law § 995, subd. 7. Kellogg v. Travis, 188 Misc. 2d 164, 728 N.Y.S.2d 645 (Sup 2001), order aff'd as modified, 298 A.D.2d 323, 750 N.Y.S.2d 12 (1st Dep't 2002).

Requirements of DNA Act were not punitive in application, and thus subjecting defendant to its strictures even though she committed crime before amended version of statute came into effect did not constitute ex post facto violation; DNA Act did not subject defendant to public humiliation, no incarceration resulted by way of new criminal conviction from refusal to submit sample as prisoners who refused to provide sample could be administratively punished, Act did not

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impose affirmative restraint, Act did not promote traditional aims of punishment of retribution or deterrence, and one required to provide sample was subjected to momentary inconvenience on single occasion. U.S.C.A. Const. Art. 1, § 10, cl. 1; Const. Art. 1, § 17. Com. v. Derk, 2006 PA Super 60, 895 A.2d 622 (2006).

Additional condition of parole that defendant provide DNA sample pursuant to DNA Act did not violate prohibition against ex post facto laws; purpose of Act, which was to create extensive DNA database and assist in criminal investigations, was not penal in nature. U.S.C.A. Const. Art. 1, § 10, cl. 1; Code 1976, § 23-3-610. Cannon v. South Carolina Dept. of Probation, 361 S.C. 425, 604 S.E.2d 709 (Ct. App. 2004).

Even though legislature enacted DNA collection statute after date of prison inmate's crime, it did not violate the prohibition on ex post facto laws because statute did not retroactively criminalize acts performed by inmate before its enactment, and thus, DNA collection statute did not violate ex post facto clause of State Constitution; legislature's intent in creating statute was to assist law enforcement in the investigation and prosecution of sex-related offenses, legislature's intent was not to inflict additional punishment, and statute was not so punitive in effect that it prevented court from viewing statute as regulatory in nature. Vernon's Ann.Texas Const. Art. 1, § 16; V.T.C.A., Government Code §§ 411.141–411.154, 411.143(a). Johnson v. Davis, 178 S.W.3d 230 (Tex. App. Houston 14th Dist. 2005), reh'g overruled, (Nov. 3, 2005) and rule 53.7(f) motion granted, (Jan. 2, 2006).

Mere presence of incidental deterrent purpose did not render statute permitting juvenile courts to require submission of blood or other samples for purposes of DNA records as condition of probation in delinquency adjudication proceedings punitive in its effect, as element of ex post facto analysis. U.S.C.A. Const. Art. 1, § 9, cl. 3; V.T.C.A., Family Code § 54.0405. In re D.L.C., 124 S.W.3d 354 (Tex. App. Fort Worth 2003).

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§ 6[a] —Imposing punishment for refusal to provide DNA sample—Delay in release date—delay found

It has been held that a state's DNA database statute violated the federal ex post facto clause to the extent that the statute withheld parole eligibility from prisoners who were otherwise entitled to parole under a mandatory parole scheme.

In Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), as amended, (Apr. 27, 1992), an action by state prisoners under 42 U.S.C.A. § 1983 against various prison officials challenging Virginia's DNA database statute, Va.Code 1950, § 19.2–310 et seq., on various constitutional grounds, the court held that the statute violated the federal ex post facto clause [U.S.C.A. Const. Art. 1, § 10, cl. 1] to the extent that the statute, in withholding parole from prisoners who failed to comply with the statute, deferred a prisoner's release date beyond the date established in a statute providing for mandatory parole six months prior to the end of the inmate's sentence. Prior to the enactment of the DNA database statute, the court reasoned, every prisoner received an automatic six–month reduction of sentence unless the prisoner constituted a clear and present danger to society. If that statute were to be enforced to deny a prisoner that automatic release for refusing to provide a blood sample, the court concluded, the prisoner would be held beyond the time of release contemplated by the original sentence and a term of the prisoner's sentence, thereby, would be made more onerous ex post facto. The court, however, as noted in § 6[c] also held that the imposition of administrative sanctions on prisoners failing to provide the required DNA sample does not violate the ex post facto clause.

§ 6[b] —Imposing punishment for refusal to provide DNA sample——Delay not found

It has been held that, where a state DNA database statute did not operate to delay parole to which a prisoner subject to the statute had a mandatory entitlement, the statute did not violate the federal constitutional prohibition of ex post

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facto laws found in U.S.C.A. Const. Art. 1, § 10, cl. 1, although the statute applied to persons convicted before the statute's enactment.

Rejecting the assertion that the state's DNA database statute, S.H.A. 730 ILCS 5/5–4–3, operated to keep an inmate in prison who otherwise would be entitled to be released on parole, the court, in Doe v. Gainer, 162 Ill. 2d 15, 204 Ill. Dec. 652, 642 N.E.2d 114 (1994), a state prisoner's action under 42 U.S.C.A. § 1983 against various prison officials, held that the statute did not violate the federal constitutional prohibition of ex post facto laws found in U.S.C.A. Const. Art. 1, § 10, cl. 1, even though the statute applied to persons convicted before the statute's enactment. The statute, the court declared, operated only to specify the time when a prisoner was required to submit a specimen of blood—while in prison, and not after release from prison. The court said, thus rendered the statute a timing provision rather than an enforcement mechanism. As the plaintiff prisoner acknowledged, said the court, nothing would prevent the blood sample from being taken prior to his release from prison. Since, the court reasoned, prison officials could forcibly seize a specimen of an inmate's blood without violating any Fourth Amendment search and seizure concerns, nothing would prevent the blood sample from being taken prior to an inmate's release from prison.

Dismissing a state prisoner's habeas corpus petition, the court, in Dial v. Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999), held that Pennsylvania's DNA database statute, 35 P.S. §§ 7651.101–7651.1102, did not violate the federal constitutional prohibition of ex post facto legislation [U.S.C.A. Const. Art. 1, § 10, cl. 1], despite the prisoner's contention that his refusal to submit the required blood sample delayed his being granted parole. Distinguishing Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), as amended, (Apr. 27, 1992) (discussed in § 6[a]), the court emphasized that parole in Pennsylvania was discretionary, and the statute did not authorize the prisoner's incarceration beyond the mandatory release date established under the terms of his original sentence. As noted in § 12[b] and § 16, respectively, the court also held that the statute did not violate the principle of separation of powers or authorize an unreasonable search and seizure.

§ 6[c] —Imposing punishment for refusal to provide DNA sample—Imposition of administrative punishment

[Cumulative Supplement]

In the following cases, the courts expressed the view that the imposition of administrative punishment on prisoners who fail to comply with a DNA database statute does not violate the federal constitutional prohibition of ex post facto laws [U.S.C.A. Const. Art. 1, § 10, cl. 1], even where the prisoners have been convicted prior to the enactment of the statute.

Declaring that the ex post facto clause does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with good prison administration, safety, and efficiency, the court, in Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), as amended, (Apr. 27, 1992), declared that the imposition of administrative sanctions on prisoners failing to provide the DNA sample required under Virginia's DNA database statute, Va.Code 1950, § 19.2–310 et seq., does not violate the clause, even though the prisoners were convicted prior to the enactment of the statute. The court stressed that changes in a prisoner's location, variations of daily routine, changes in conditions of confinement (including administrative segregation), and denials of privileges—matters which every prisoner can anticipate are contemplated by his original sentence to prison—are necessarily functions of prison management that must be left to the broad discretion of prison administrators. It is precisely because reasonable prison regulations, and subsequent punishment for infractions thereof, are contemplated as part of the sentence of every prisoner, the court explained, that they do not constitute additional punishment and are not classified as ex post facto. Moreover, the court added, since a prisoner's original sentence does not embrace a right to one set of regulations over another, reasonable amendments, too, fall within the anticipated sentence of every inmate. However, as noted in § 6[a], the court also held that the statute violated the ex post facto clause to the extent that the statute—in withholding parole from prisoners who failed to comply with the statute—deferred a prisoner's release date beyond the date established in another statute providing for mandatory parole six months prior to the end of the inmate's sentence.

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The court, in Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995), declared that the fact that prisoners convicted before the enactment of the DNA database statute in Illinois S.H.A. 730 ILCS 5/5–4–3, could be administratively punished for failure to provide the DNA sample required by the statute does not violate the federal constitutional prohibition of ex post facto laws found in U.S.C.A. Const. Art. 1, § 10, cl. 1. Any sanctions for noncompliance to which prisoners would be exposed would result, the court concluded, from a prisoner's refusal to comply with valid prison regulations rather than from the commission of the crime for which the inmate was sentenced. Disciplinary measures imposed on prisoners for failing to obey orders do not violate the ex post facto clause, the court declared.

In Kruger v. Erickson, 875 F. Supp. 583 (D. Minn. 1995), aff'd on other grounds, 77 F.3d 1071 (8th Cir. 1996), the court held that the fact that prison officials threaten prisoners who fail to provide DNA samples with a loss of "good time credit" does not render a DNA database statute penal in nature and thereby in violation of the ex post facto clause as applied to prisoners convicted before the statute's enactment. Saying that disciplinary measures imposed on inmates for failing to obey orders do not make a statute penal in nature, the court explained that it was required to analyze the statute itself and its purpose. As noted in § 3 and § 13, respectively, the court also held that the nonconsensual drawing of blood from the prisoner in order to provide a DNA sample did not amount to the unnecessary and wanton infliction of pain prohibited by the Eighth Amendment or violate the prisoner's right to substantive due process.

Rejecting an assertion that the application of V.A.M.S. § 650.055, requiring certain prisoners to submit a blood sample for the state's DNA database, to an inmate convicted prior to the statute's effective date violates the state (Mo. Const. art. I, § 13) or federal (U.S. Const. art. I, § 10) ex post facto clauses, the court, in Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997), held that, while the statute creates the possibility that prisoners may be punished for refusing to comply with the statute and would thereby lose substantial rights, any such sanctions would result from the prisoner's refusal to comply with valid prison regulations rather than from the commission of the crime for which the prisoner was sentenced. As noted in § 10, § 11, § 13, § 15, and § 20[a], respectively, the court also held that § 650.055 did not violate the prisoners' right to privacy or right against self– incrimination, deny prisoners substantive due process, or authorize an unreasonable search and seizure, and that the statute applied to a prisoner convicted of a predicate offense under a prior version of the statute defining that offense.

CUMULATIVE SUPPLEMENT

Cases:

Requiring misdemeanants who must register as sex offenders to provide DNA samples, regardless of whether the conviction triggering the registration requirement occurred before or after the passage of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act of 2004, is not punitive, and does not involve concepts of retroactivity or ex post facto implications, but is confined to a simple administrative identifying procedure akin to fingerprinting or keeping one's whereabouts known to law enforcement. U.S.C.A. Const. Art. 1, § 10, cl. 1; West's Ann.Cal.Penal Code §§ 295(b) (2), 296(a)(3). Good v. Superior Court, 158 Cal. App. 4th 1494, 71 Cal. Rptr. 3d 125 (1st Dist. 2008), as modified, (Feb. 1, 2008).

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§ 6[d] —Imposing punishment for refusal to provide DNA sample—Increase in administrative punishment

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There is authority holding that the amendment of a state prison regulation prospectively increasing the amount of "good conduct time" an inmate lost upon refusal to provide the blood sample required by the state's DNA database statute did not violate the federal constitutional ex post facto clause found in U.S.C.A. Const. Art. 1, § 10, cl. 1.

Affirming summary judgment for the defendant prison officials in an action by four state prisoners, the court, in Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993), held that the amendment of a Virginia prison regulation prospectively increasing the amount of "good conduct time" an inmate lost upon refusal to provide the blood sample required by Virginia's DNA database statute, Va.Code 1950, § 19.2–310.2, did not violate the federal constitutional ex post facto clause found in U.S.C.A. Const. Art. 1, § 10, cl. 1. Declaring that the amendment did not add punishment for the original crime for which an inmate was incarcerated, the court noted that, just as good conduct allowances could be earned by compliance with reasonable prison regulations, they could be lost by subsequent noncomplying conduct. While an inmate had the right, as of the time of the sentence, to expect the good conduct credits then defined for good behavior, the court said, the inmate had no right to a particular set of prison regulations adopted to maintain the order, safety, and efficiency of the prison. The database statute was administrative, rather than penal, the court stressed, and the regulation ordering inmate compliance was reasonably within the administrative structure of prison authority that attended every sentence. Only if an inmate chose to violate an order of prison officials was the inmate punished, the court reasoned, and then only for the new conduct constituting a violation of a reasonable prison regulation, not as additional punishment for the original crime. As noted in § 9, the court also held that the amendment did not deny inmates procedural due process.

comment

Although the prisoners who brought the action in Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993), were convicted prior to the enactment of the state's DNA database statute, the opinion did not state that it was limited in its application to those circumstances.

§ 6.5. Bills of attainder

[Cumulative Supplement]

The following authority considered whether a state DNA database statute violated the federal or state constitutional prohibitions against bills of attainder.

CUMULATIVE SUPPLEMENT

Cases:

Because DNA database system did not involve punishment, it did not violate State Constitution's prohibition against bills of attainder. Vernon's Ann.Texas Const. Art. 1, § 16; V.T.C.A., Government Code §§ 411.141–411.154. Johnson v. Davis, 178 S.W.3d 230 (Tex. App. Houston 14th Dist. 2005), reh'g overruled, (Nov. 3, 2005) and rule 53.7(f) motion granted, (Jan. 2, 2006).

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§ 7. Free exercise of religion

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Applying the general rule articulated in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876, 52 Fair Empl. Prac. Cas. (BNA) 855, 53 Empl. Prac. Dec. (CCH) ¶ 39826,

Unempl. Ins. Rep. (CCH) ¶ 21933 (1990), reh'g denied, 496 U.S. 913, 110 S. Ct. 2605, 110 L. Ed. 2d 285 (1990) 19 the courts in the following cases expressed the view that a DNA database statute, requiring the collection of a DNA sample from persons convicted of specified offenses, is a neutral law of general applicability and therefore its enforcement does not violate the First Amendment right to the free exercise of religion of prisoners who claim that the drawing of blood violates their religious beliefs.

The court, in Ryncarz v. Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993), declared that, since Washington's DNA database statute, R.C.W. 43.43.754, is generally applied to those within its purview, and there is no evidence that would question its neutrality regarding the free exercise of religion, the statute, under the rule articulated in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876, 52 Fair Empl. Prac. Cas. (BNA) 855, 53 Empl. Prac. Dec. (CCH) ¶ 39826, Unempl. Ins. Rep. (CCH) ¶ 21933 (1990), reh'g denied, 496 U.S. 913, 110 S. Ct. 2605, 110 L. Ed. 2d 285 (1990), does not violate prisoners' right to the free exercise of religion under the First Amendment, despite prisoners' claims that their religious beliefs forbid the giving of blood. Both the statute and the accompanying DNA policy are neutral towards imposing a burden on religion, the court observed, and the government has a strong interest in maintaining a permanent record of a violent or sexual offender's DNA to assist in solving past and future crimes. As noted in § 3, the court also held that the prisoner bringing the action failed to state a claim for cruel and unusual punishment under the Eighth Amendment.

The court, in Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), cert. denied, 119 S. Ct. 520, 142 L. Ed. 2d 431 (U.S. 1998), held that 74 Okl.St.Ann. § 150.27a, establishing a DNA Offender Database in which DNA samples from individuals convicted of specified offenses are collected and maintained for the purpose of identifying and prosecuting perpetrators of "sex–related crimes, violent crimes, or other crimes in which biological evidence is recovered," does not violate prisoners' right under the First Amendment to the free exercise of religion. While noting the prisoner's contention that application of the statute to him forced him to submit to a practice that required him to deny his faith and condemned him to eternal damnation, the court, applying the rule articulated in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876, 52 Fair Empl. Prac. Cas. (BNA) 855, 53 Empl. Prac. Dec. (CCH) ¶ 39826, Unempl. Ins. Rep. (CCH) ¶ 21933 (1990), reh'g denied, 496 U.S. 913, 110 S. Ct. 2605, 110 L. Ed. 2d 285 (1990), emphasized that a law that is religion–neutral and generally applicable does not violate the free exercise clause even if it incidentally affects religious practice. The prisoner, the court said, does not contend the statute is not neutral or generally applicable, or does he allege that the statute has been applied to him differently because of his religious beliefs. As noted in § 22, the court also held that the statute was intended to apply retroactively to prisoners convicted prior to the enactment of the statute.

§ 8. Procedural due process—under statute

[Cumulative Supplement]

The courts in the following cases explicitly or apparently expressed the view that a DNA database statute does not deny procedural due process to those who are required by the statute to provide a DNA sample, although the statute does not provide for a prior hearing on the issue of the applicability of the statute.

The court, in Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995), held that ORS 137.076—requiring persons convicted of murder, a sexual offense, or conspiracy or attempt to commit a sexual offense to submit a blood sample to the state department of corrections to be added to a DNA data bank—does not deny procedural due process to the prisoners required to submit a DNA sample, although the statute does not afford such prisoners a prior hearing on the issue of the applicability of the statute. Citing Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (upholding withdrawal of blood despite defendant's refusal to consent), and Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct.

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408, 1 L. Ed. 2d 448 (1957) (upholding blood extraction from unconscious person), both of which are outside the scope of the present annotation, the court said that the extraction of blood from an individual in a simple, medically acceptable manner, despite the individual's lack of an opportunity to object to the procedure, does not implicate the Due Process Clause. Because the only criterion under the statute for extracting blood is a conviction for a predicate offense, the court reasoned, there would be little of substance to contest at any provided hearing. As noted in § 5 and § 15, respectively, the court also held that the statute does not violate the federal constitutional prohibition of ex post facto legislation, and that the statute does not authorize an unreasonable search and seizure under the Fourth Amendment.

Relying on Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995) (discussed above), and apparently considering procedural due process, the court, in Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), reh'g denied, (Jan. 17, 1997), rejected as unpersuasive the argument that Colorado's DNA database statute, West's C.R.S.A. § 17–2–201(5)(g), deprives affected prisoners of a property interest in their blood without due process or just compensation. The court also held that, because parole in Colorado is discretionary, the statute does not implicate any liberty interest protected by due process by conditioning parole on an inmate's submission of DNA samples. As noted in § 3 and § 4[b], respectively, the court also held that the prisoner's allegations were insufficient to state a valid Eighth Amendment claim, and that the statute's being limited to sex offenders did not deny inmates convicted of such offenses the equal protection of the law.

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Cases:

The due process clause did not require a hearing before the involuntary extraction of state prison inmate's blood for DNA sampling pursuant to state statute. U.S. Const. Amend. XIV; West's C.R.S.A. § 16–11–102.3. Esnault v. Burnett, 83 Fed. Appx. 279 (10th Cir. 2003).

Georgia statute requiring DNA sampling of all convicted felons did not violate due process requirements of the United States or Georgia constitutions, despite claim by convicted felons that statute failed to provide them with meaningful opportunity to be heard before they were deprived of release dates in which they had a liberty interest, as there was no evidence that failure to comply with statute would result in extension of prison sentences or denial of parole, and, moreover, upon failure to voluntarily give a sample, a correctional officer would issue a disciplinary report, after which felons would be provided a hearing at which they could call witnesses. West's Ga.Code Ann. § 24–4–60. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003) (applying Georgia law).

Prisoner was not denied procedural due process when DNA specimen was collected and his DNA profile disclosed in state and national DNA index systems without a pre-deprivation hearing. U.S.C.A. Const.Amend. 14. Wilson v. Collins, 517 F.3d 421 (6th Cir. 2008) (applying Ohio law).

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because the enactment of the statutes themselves in 1990 provided notice that all persons convicted of a felony will be required to give a blood sample for DNA analysis.

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§ 9. —Under regulation implementing statute

There is authority holding that, under the circumstances, the amendment of a state prison regulation implementing the state DNA database statute did not deny procedural due process to the prisoners subject to the statute.

Affirming a summary judgment for the defendant prison officials in an action by four state prisoners, the court, in Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993), held that the amendment of a Virginia prison regulation prospectively increasing the amount of "good conduct time" an inmate lost upon refusal to provide the blood sample required by the state's DNA database statute did not deny inmates procedural due process, since the amended version of the regulation provided due process and more when good time credits were withdrawn. The regulation, the court observed, specified the procedures for filing a disciplinary report of an offense and giving notice to an inmate of the amendment to the regulation; required a prison official to meet with inmates to discuss the amendment and inform them of their rights; required a record to be made of an inmate's election of rights, including the right to an adviser during the hearing on the charge, the right to call witnesses, and the right to be given a written copy of the charge; required that the disciplinary report contain a summary of the evidence presented, and written findings on the basis for the decision and penalty; and required that an inmate be given two copies of a disciplinary report as soon after institutional review was completed as possible. As noted in § 6[d], the court also held that the amendment did not violate the federal constitutional ex post facto clause.

§ 10. Right to privacy

[Cumulative Supplement]

The courts in the following cases expressed the view that a state's DNA database statute does not violate the right to privacy of those persons subject to the statute.

The court, in Matter of Appeal in Maricopa County Juvenile Action Numbers JV-512600 and JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. Div. 1 1996), review denied, (Jan. 14, 1997), held that A.R.S. §§ 13–4438, 31–281, requiring juveniles to submit DNA samples to the state's DNA database, does not violate juveniles' right to privacy. Although the physical intrusion involved in drawing blood infringes upon an individual's expectation of privacy, the court said, the intrusion is reasonable in light of the need to ensure public safety. Society, the court declared, recognizes that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity. Moreover, the court added, the expectation of privacy of juveniles adjudicated delinquent for committing a sexual offense is significantly diminished. The court concluded that the public's interest in effective law enforcement, crime prevention, and the identification and apprehension of those who have committed sex offenses rightfully outweighs the intrusion on the delinquent juvenile's privacy. As noted in § 14, § 18, and § 22, respectively, the court also held that the statutes did not authorize an unreasonable search and seizure, that the statutes could properly be applied to juveniles even though the statutes affected the juveniles beyond the age of majority, and that the application of the statutes to the juveniles was permitted by state statutes governing the retroactivity of state legislation, even though the conduct admitted by the juveniles occurred prior to the enactment of the database statutes.

The court, in People v. Wealer, 264 Ill. App. 3d 6, 201 Ill. Dec. 697, 636 N.E.2d 1129 (2d Dist. 1994), held that the DNA database statute in Illinois S.H.A. 730 ILCS 5/5–4–3, requiring certain prisoners to submit a DNA sample, does

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not violate the right to privacy guaranteed in S.H.A. Const. Art. 1, § 6. Stating that, in the absence of any compelling argument, the court was unwilling to theorize on a question of uncertain constitutional dimension, it relied on its holding (discussed in § 14) that the statute does not violate the Fourth Amendment.

Holding that V.A.M.S. § 650.055, requiring certain prisoners to submit a blood sample for the state's DNA database, does not violate prisoners' right to privacy under the Fourth Amendment and the Fourteenth Amendment, the court, in Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997), remarked that a prisoner has a diminished expectation of privacy in a body search, and that expectation is outweighed by the compelling interest in law enforcement advanced by the statute. As noted in § 6[c], § 11, § 13, § 15, and § 20[a], respectively, the court also held that § 650.055 did not violate the ex post facto clause or prisoners' right against self–incrimination, deny prisoners substantive due process, or authorize an unreasonable search and seizure, and applied to a prisoner convicted of a predicate offense under a prior version of the statute defining that offense.

CUMULATIVE SUPPLEMENT

Cases:

State prison officials' demand for inmate to provide blood sample for DNA database for felons did not violate inmate's Fourth Amendment right to privacy. U.S.C.A. Const. Amend. IV. Colgrove v. Williams, 105 Fed. Appx. 537 (5th Cir. 2004).

Government's significant interests in identifying arrestees, in assessing their dangerousness, and in exonerating innocent persons outweighed modest expectation of privacy interest that arrestee had, and therefore search and seizure under California's DNA and Forensic Identification Data Base and Data Bank Act (DNA Act), which required law enforcement officers to collect and analyze DNA samples from all adults arrested for felonies, was reasonable. U.S. Const. Amend. 4; Cal. Penal Code § 295 et seq. Haskell v. Brown, 2018 WL 3093435 (N.D. Cal. 2018).

Extraction of saliva from incarcerated felons under Georgia statute, for purposes of DNA profiling, did not violate prisoners' right to privacy under the Fourteenth Amendment; prisoners routinely undergo drug testing, which requires a similar bodily intrusion and such restriction on their freedom was inherent to their status as prisoners. U.S.C.A. Const.Amend. 14; West's Ga.Code Ann. § 24-4-60. Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005), petition for cert. filed (U.S. June 2, 2005).

Georgia statute requiring DNA sampling of all convicted felons did not violate convicted felons' privacy rights under the United States or Georgia constitutions; convicted felons' right of privacy in their identification, if they had any, was substantially outweighed by state's interest in having available a DNA database that could be used in solving crimes and exonerating the innocent. West's Ga.Code Ann. § 24–4–60. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003).

The involuntary taking of a DNA sample pursuant to state statute, after minor admitted to committing attempted public indecency to a minor, was not an unreasonable search that violated his federal and state constitutional rights to privacy; the DNA testing required by the statute served the government's special needs to identify perpetrators of past and future crimes and to deter a known class of offenders from re-offending. U.S.C.A. Const.Amend. 4; A.R.S. Const. Art. 2, § 8; A.R.S. § 13-610. In re Leopoldo L., 99 P.3d 578 (Ariz. Ct. App. Div. 1 2004).

Statutory scheme that requires juveniles charged with certain offenses and summoned to appear at an advisory hearing to submit to law enforcement a sufficient sample of buccal cells for DNA testing and extraction, with a failure-to- comply penalty of revocation of release pending adjudication, involves two separate intrusions on a juvenile's privacy, for the purpose of determining whether the statutory scheme violates the Fourth Amendment prohibition of unreasonable searches and seizures; first, the state physically seizes a buccal cell sample from the juvenile, and second, the state

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processes the seized cells and extracts a DNA profile. U.S.C.A. Const.Amend. 4; A.R.S. §§ 8–238, 13–610(H)(1, 2). Mario W. v. Kaipio, 281 P.3d 476 (Ariz. 2012).

Defendant, who had been convicted of non-violent felony drug offenses, did not have any fundamental right to privacy implicit in State Constitution that exempted him from requirement that he provide DNA sample required under State Convicted Offender DNA Database Act. West's A.C.A. § 12–12–1101 et seq. Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005).

State's retention of buccal DNA sample collected from defendant, who was convicted of felony but later had conviction reduced to misdemeanor pursuant to Proposition 47, did not violate defendant's right to privacy under federal or state constitution; collection of sample was minimally intrusive, requiring only quick touch of swab inside defendant's mouth, State's use of sample was strictly limited by DNA Database Act, and DNA markers collected were not linked to any genetic or physical trait. U.S. Const. Amend. 4; Cal. Const. art. 1, § 1; Cal. Penal Code § 299.5. People v. Harris, 15 Cal. App. 5th 47, 2017 WL 3883795 (4th Dist. 2017).

The DNA and Forensic Identification Data Base and Data Bank Act of 1998, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution. U.S.C.A. Const.Amend. 4.; Pen.Code, § 295; West's Ann.Cal.Penal Code § 296. People v. Buza, 2011 WL 3338855 (Cal. App. 1st Dist. 2011) [citing annotation].

Provision of the DNA and Forensic Identification Database and Data Bank Act of 1998 (DNA Act) that allowed for the authorization of potential participation in international database and data bank programs did not violate defendant's constitutional privacy rights; as a convicted felon, defendant had a diminished expectation of privacy in his identity, and the legitimate governmental interest in maintaining a permanent, reliable record or identification of all convicted felons outweighed the minor intrusion involved in taking DNA samples and storing DNA profiles. U.S.C.A. Const.Amend. 4; West's Ann.Cal. Const. Art. 1, § 1; West's Ann.Cal.Penal Code § 295(g). People v. McCray, 50 Cal. Rptr. 3d 343 (Cal. App. 2d Dist. 2006).

The court in Alfaro v. Terhune, 98 Cal. App. 4th 492, 120 Cal. Rptr. 2d 197 (3d Dist. 2002), review filed, (June 25, 2002), rejected the contention of eight women who have been sentenced to death in state criminal proceedings (hereafter plaintiffs) who challenged the implementation of the California DNA and Forensic Identification Data Base and Data Bank Act of 1998, Cal. Penal Code §§ 295 et seq. Among other things, the Act states that any person who is convicted of a specified crime must "provide two specimens of blood, a saliva sample, right thumbprints, and a full palm print impression of each hand for law enforcement identification analysis." The Act further provides that the California Department of Justice shall (1) serve as a repository for those items, (2) perform a deoxyribonucleic acid (DNA) analysis and any other forensic identification of them, and (3) "store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records" for use as an "effective law enforcement tool" in the "expeditious detection and prosecution of individuals responsible for sex offenses and other violent crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children." (§ 295, subds. (b)(3), (c)). The defendants in this action are state officials charged with implementing the Act. The plaintiffs claimed that, as applied to prisoners under sentence of death, the Act violates the constitutional prohibition against unreasonable searches and seizures and violates their privacy rights because "one of the key purposes justifying the [Act]--the deterrence of future crimes--is inapplicable" to those prisoners. The trial court rejected the constitutional challenge. The appellate court concluded the trial court correctly rejected the plaintiffs' constitutional challenge. In view of the thoroughness with which constitutional challenges to DNA data base and data bank acts have been discussed, the court noted that there is little it would venture to add. The court agreed with existing authorities that (1) non-consensual extraction of biological samples for identification purposes does implicate constitutional interests; (2) those convicted of

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serious crimes have a diminished expectation of privacy and the intrusions authorized by the Act are minimal; and (3) the Act serves compelling governmental interests. Not the least of the governmental interests served by the Act is "the overwhelming public interest in prosecuting crimes accurately." A minimally intrusive methodology that can serve to avoid erroneous convictions and to bring to light and rectify erroneous convictions that have occurred, manifestly serves a compelling public interest. The court agreed with the decisional authorities that have gone before and conclude that the balance must be struck in favor of the validity of the Act. The plaintiffs did not argue that the court should entirely reject the plethora of decisional authorities which have upheld DNA database and data bank acts. And they did not assert that the court should find the Act unconstitutional per se. Rather, plaintiffs argue that they are challenging the Act solely as applied to prisoners under sentence of death. The plaintiffs noted that some of the decisional authorities upholding DNA data base and data bank acts have mentioned the penal interests the acts may serve, such as deterring and preventing future criminality. They argued that, as persons sentenced to death, they can never expect to be released from prison and that, with respect to them, the sole purpose of the Act is for normal law enforcement purposes, i.e., solving crimes. This, according to the argument, serves to distinguish prior authorities that have upheld DNA acts. The court rejected the attempted distinction. First, while decisional authorities have mentioned deterrence and prevention of future criminality as purposes served by DNA testing, they specifically have upheld DNA acts for the law enforcement purpose of solving crimes. Hence, these authorities do not provide a reasoned basis for excluding inmates sentenced to death from their reach. Second, plaintiffs' argument is based upon the false premise that a person confined pursuant to a sentence of death is thereby incapable of future criminality. For example, a death sentence and/or special circumstance finding can be overturned on appeal or through state or federal habeas corpus proceedings, and the Governor can commute a sentence. There also is the possibility of escape. And, significantly, in-prison offenses by inmates are hardly rare. In particular, the ability to identify the source of a bodily fluid or other bodily substance could serve to deter the crime of "gassing," in which an inmate places or throws bodily fluids or other bodily substances onto the person of a correctional officer. The plaintiffs asserted that existing authorities were concerned with the extraction of biological specimens and samples, while plaintiffs are challenging genetic testing of specimens and samples. They argued that genetic testing is a search separate and apart from the extraction of specimens and samples. The court could not agree that this argument serves to distinguish plaintiffs' challenge to the Act from existing authorities that have upheld the constitutionality of DNA acts. The uses to which specimens and samples are to be put are inextricably bound up with the determination whether specimens and samples may be obtained. The cases are uniform in concluding that the extraction and DNA testing of specimens and samples is an intrusion subject to constitutional analysis. The extent of the intrusion is measured by reference to express limitations on the uses to which the specimens and samples may be put, and the governmental interests are assessed with respect to those specific uses. The court noted that no court has held that the government can extract and analyze specimens and samples without reference to the specific uses, and limitations thereon, to which the specimens and samples may be put. The plaintiffs complained that DNA testing has the potential to reveal sensitive personal and biological information. However, the Act specifically limits to identification purposes the DNA and other forensic identification analyses authorized by the Act, as the defendants are authorized to analyze specimens and samples "in order to establish identity and origin of samples for identification purposes," the Act exempts all DNA and forensic identification profiles and other identification information from any law requiring disclosure of information to the public, and it makes such information confidential, and the Act appropriately limits the state's use of the specimens, samples, and print impressions that it requires. The plaintiffs asserted that "identification purposes" is broad and vague enough to encompass almost any conceivable use of DNA information. The court disagreed, as within the context of the Act, this means the comparison of DNA and forensic identification profiles "in order to establish identity and origin of samples for identification purposes." Moreover, one of the legislative purposes of the Act is to enable the state to participate in the FBI's Combined DNA Index System (CODIS); the Department of Justice is required to act as liaison with the FBI for that purpose, and the provisions with respect to analyses of specimens and samples are designed for that purpose. The court noted that obviously, uniformity of approach is vital to establishment and use of a data base or data bank, and state access to the federal index may be cancelled for failure to meet the quality control and privacy requirements of federal law. The Act does not permit defendants to do more than standard and usual scientifically appropriate identification analyses with specimens, samples, and print impressions. The plaintiffs argued that existing state and federal authorities are not dispositive because plaintiffs are basing their challenge on the state constitutional

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right to privacy as well as federal constitutional principles. The court noted that California's Constitution includes an express right to privacy (Cal. Const. art. I, § 1), which in many contexts is broader and more protective of privacy than the right to privacy implied in the federal Constitution. The court noted that the evaluation of privacy claims under the state Constitution requires (1) the identification of a specific, legally protected privacy interest, (2) a determination whether there is a reasonable expectation of privacy in the circumstances, (3) an assessment of the extent and gravity of the alleged invasion of privacy, and (4) a balancing of the invasion against legitimate and competing interests. The court noted that the key element in this process is the weighing and balancing of the justification for the conduct in question against the intrusion on privacy resulting from the conduct whenever a genuine, nontrivial invasion of privacy is shown. In this instance, the court noted that the balancing process required by the state constitutional right of privacy is precisely the same process that other jurisdictions have applied in upholding the validity of DNA data base and data bank acts. Although California courts applying state constitutional principles are not required to reach the same conclusion as courts of other jurisdictions, in this instance the court agreed with the trial court that the balancing process does not support a result contrary to the results reached in every other jurisdiction to have considered the matter.

Defendant did not have reasonable expectation of privacy in his juvenile offender fingerprint records released by the Federal Bureau of Investigation (FBI), and thus, trial court did not violate the defendant's Fourth Amendment rights when it denied his motion to suppress both a fingerprint record and an analysis of his DNA; statute, which controlled the confidentiality of youth offender records, did not apply to federal agencies, and therefore, it did not create a reasonable expectation of privacy as to the defendant's fingerprint records held by the FBI. U.S.C.A. Const.Amend. 4; C.G.S.A. § 54–76l. State v. Easton, 152 Conn. App. 300, 100 A.3d 18 (2014).

DNA testing statute, which required all felons convicted of certain enumerated felonies to undergo DNA blood test, was minimally intrusive, and, thus, did not violate juvenile's Fourth Amendment right against unreasonable searches and seizures; statute fulfilled a special need beyond law enforcement, and the public's interest outweighed a felon's diminished privacy expectations. U.S.C.A. Const. Amends. 4, 14; West's F.S.A. Const. Art. 1, § 12; West's F.S.A. § 943.325. L.S. v. State, 805 So. 2d 1004 (Fla. Dist. Ct. App. 1st Dist. 2001).

Statute requiring any person convicted of felony and incarcerated in state correctional facility to provide sample for DNA analysis to determine identification characteristics did not unconstitutionally violate the privacy rights and search and seizure rights of convicted felons incarcerated in state correctional facilities. U.S.C.A. Const.Amend. 4; West's Ga.Const. Art. 1, § 1, Par. 13; West's Ga.Code Ann. § 24–4–60. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007).

Once a person is convicted of one of the felonies included as predicate offenses under the DNA Act, his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling. West's Ga.Code Ann. § 24–4–60. Dingler v. State, 637 S.E.2d 120 (Ga. Ct. App. 2006).

Statute requiring any person convicted of certain enumerated felonies to submit specimens of blood and saliva to Kansas Bureau of Investigation (KBI) did not subject defendant convicted of nonresidential burglary and theft to infringement upon right to privacy or unreasonable search and seizure; minimally intrusive nature of providing blood and saliva samples was significantly outweighed by the State's interest in establishing and maintaining a statewide automated DNA database to search, match, and store DNA records. U.S.C.A. Const. Amend. 4; K.S.A. 21–2511 (2001). State v. Maass, 275 Kan. 328, 64 P.3d 382 (2003).

Defendant had no privacy interest in his identifying information contained in the DNA profile created from lawfully obtained DNA samples which would entitle him to the protections of the Fourth Amendment in relation to the testing of the sample and subsequent use of defendant's DNA profile to connect defendant to a burglary. U.S.C.A. Const.Amend. 4. Varriale v. State, 444 Md. 400, 119 A.3d 824 (2015).

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Statute requiring certain offenders to submit a DNA sample for identification purposes did not violate federal or state search-and-seizure provisions, as applied to defendant convicted of a misdemeanor arising from the same set of circumstances as a charged felony; physical intrusion of defendant's bodily integrity through buccal swab was minimal, defendant was a probationer having a significantly reduced expectation of privacy in his identity, and State had a legitimate governmental interests in DNA collection. U.S.C.A. Const.Amend. 4; M.S.A. Const. Art. 1, § 10; M.S.A. § 609.117(1)(1). State v. Johnson, 2012 WL 204520 (Minn. 2012).

When the prospective DNA sample is being used for identification purposes, the donor of that sample has no more privacy interest in it than in his fingerprints. U.S. Const. Amend. 4. Commonwealth v. Smith, 164 A.3d 1255 (Pa. Super. Ct. 2017).

Defendants have an expectation of privacy in their oral cavity and in the information contained in their DNA; therefore, State has the burden to prove the constitutionality of amendment to DNA-database statute that mandated warrantless, suspicionless DNA collection and analysis from anyone arraigned for a felony after a determination of probable cause. Const. C. 1, Art. 11. State v. Medina, 2014 VT 69, 102 A.3d 661 (Vt. 2014).

Special public health needs outside of law enforcement outweighed countervailing privacy rights of convicted sex offender, and thus statute that allowed the victim of a sexual offense to obtain an order requiring the convicted defendant to be tested for AIDS and other sexually transmitted disease did not violate constitutional rights; the statute targeted convicted sex offender, a class that had diminished privacy interests, allowing testing was required to qualify for federal funding, and testing defendants gave peace of mind to the victims. U.S.C.A. Const.Amend. 4; Const. C. 1, Art. 11; 13 V.S.A. § 3256. State v. Handy, 2012 VT 21, 44 A.3d 776 (Vt. 2012).

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§ 11. Self–incrimination

[Cumulative Supplement]

In the following cases, the courts expressed the view that, because DNA samples are not testimonial in nature, the enforcement of a DNA database statute, requiring the collection of a DNA sample from persons convicted of specified offenses, does not violate the Fifth Amendment right against self–incrimination.

US Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), reh'g denied, (Jan. 17, 1997) Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), cert. denied, 119 S. Ct. 520, 142 L. Ed. 2d 431 (U.S. 1998) Mo Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997) Rejecting the assertion that V.A.M.S. § 650.055, requiring certain prisoners to submit a blood sample for the state's DNA database, requires prisoners subject to the statute to testify against themselves, the court, in Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997), held that the statute does not violate the Fifth Amendment. In applying the Fifth Amendment privilege against self–incrimination, the court said, the United States Supreme Court has made the distinction between a suspect's communications or testimony and real or physical evidence obtained from the suspect. While the amendment protects a suspect from being compelled to provide evidence of a testimonial or communicative nature, the court explained, it does not protect a suspect from being compelled to provide real or physical evidence. Thus, the court noted, in Schmerber v.

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California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), a case outside the scope of the present annotation, the Supreme Court held that a compelled extraction of a blood sample and its chemical analysis, for blood alcohol content, does not amount to testimonial or communicative evidence and therefore is not prohibited by the Fifth Amendment. As noted in § 6[c], § 10, § 13, § 15, and § 20[a], respectively, the court also held that § 650.055 did not violate the ex post facto clause or prisoners' right to privacy, deny prisoners substantive due process, or authorize an unreasonable search and seizure, and applied to a prisoner convicted of a predicate offense under a prior version of the statute defining that offense.

CUMULATIVE SUPPLEMENT

Cases:

Collection of DNA evidence in form of cheek swab did not implicate defendant's Fifth Amendment right against self- incrimination; collection of DNA evidence was not testimonial in nature. U.S.C.A. Const.Amend. 5. U.S. v. Ketter, 456 Fed. Appx. 293 (4th Cir. 2011).

Non–consensual extraction of DNA from a federal prisoner who was convicted of bank robbery, for placement of prisoner's DNA profile into the FBI's Combined DNA Index System (CODIS), as required under the DNA Analysis Backlog Elimination Act of 2000, did not violate prisoner's Fifth Amendment right against self–incrimination; while blood test evidence is potentially incriminating, it is neither testimony nor evidence of any communicative act. U.S. Const. Amend. V; DNA Analysis Backlog Elimination Act of 2000, § 2(a, e), 42 U.S.C.A. § 14135(a, e). Vore v. U.S. Dept. of Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003).

DNA samples were not testimonial in nature, and thus Georgia statute requiring DNA sampling of all convicted felons did not violate constitutional guarantees against compelled self–incrimination contained in the United States or Georgia constitutions. U.S.C.A. Const. Amend. 5; West's Ga.Const. Art. 1, § 1, Par. 14; West's Ga.Code Ann. § 24–4–60. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003).

Statute requiring any person convicted of felony and incarcerated in state correctional facility to provide sample for DNA analysis to determine identification characteristics did not violate defendant's right under state constitution to not incriminate himself; statute did not force convicted felon to remove incriminating evidence but only to submit his body for purpose of having evidence removed. West's Ga.Const. Art. 1, § 1, Par. 16; West's Ga.Code Ann. § 24–4–60. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007).

The state's maintenance in a DNA database of a profile generated from a seminal fluid stain at the scene of an alleged rape, which included a case number that led to defendant being identified as the defendant in that case, did not violate defendant's statutory and state constitutional rights against self incrimination with respect to later offenses for which defendant was implicated in part through the use of information in the DNA database. West's Ga.Const. Art. 1, § 1, Par. 16; West's Ga.Code Ann. § 24–9–20(a). Fortune v. State, 300 Ga. App. 550, 685 S.E.2d 466 (2009).

DNA sample obtained from state prisoner, pursuant to Ohio statute requiring the collection of DNA specimens from convicted felons, was physical, rather than testimonial evidence, and thus did not implicate prisoner's Fifth Amendment privilege against self-incrimination; DNA sample was analogous to a photograph or fingerprint identifying an individual. U.S.C.A. Const.Amend. 5; Ohio R.C. § 2901.07. Wilson v. Collins, 517 F.3d 421 (6th Cir. 2008) (applying Ohio law).

Seizure of prison inmate's DNA pursuant to statute authorizing collection of DNA for purposes of testing and inclusion in the state's DNA database did not amount to compulsory self-incrimination in violation of State Constitution; extraction of blood for analysis was neither testimonial nor communicative in nature and, thus, did not offend State Constitution. Vernon's Ann.Texas Const. Art. 1, § 10; V.T.C.A., Government Code §§ 411.141–411.154. Johnson v.

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Davis, 178 S.W.3d 230 (Tex. App. Houston 14th Dist. 2005), reh'g overruled, (Nov. 3, 2005) and rule 53.7(f) motion granted, (Jan. 2, 2006).

The Supreme Court of Virginia, in Johnson v. Com., 259 Va. 654, 529 S.E.2d 769 (2000), in affirming the capital murder conviction and death sentence imposed on the defendant, held that the taking of a DNA sample from a prisoner pursuant to the Virginia DNA database statute did not constitute a violation of the constitutional right against self-incrimination.. The commonwealth's forensic scientist's search of the Virginia DNA data bank revealed that one DNA profile contained in the data bank was consistent with the DNA profile that she had obtained from the crime scene evidence, and this matching DNA profile belonged to the defendant who was incarcerated in a state correctional facility. The defendant argued that the statutes providing for the commonwealth's DNA data bank, Va. Code Ann. §§ 19.2-310.2—19.2-310.7, which include a requirement that all convicted felons submit blood samples for DNA testing, violate the Fifth Amendment protection against self-incrimination and the parallel provision of the Virginia Constitution. The court concluded that the Fifth Amendment right against self-incrimination, and the parallel right afforded by Va. Const. art. I, § 8, are not violated by the DNA statutes. Since the taking of a blood sample does not implicate any rights against self-incrimination, because such an act is not testimonial or communicative in nature, the court held that the withdrawal of blood from a convicted felon to provide a DNA sample for inclusion in the Virginia DNA data bank in accordance with Va. Code Ann. § 19.2-310.2 does not violate the felon's constitutional protection against self-incrimination.

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§ 12[a] Separation of powers—Separation of powers violated

It has been held that a state's DNA database statute, together with its implementing regulations, violated the constitutional principle of separation of powers.

Affirming a judgment for a state prisoner in an action brought against various prison officials, the court, in Murneigh v. Gainer, 177 Ill. 2d 287, 226 Ill. Dec. 614, 685 N.E.2d 1357 (1997), held that 730 ILCS 5/5–4–3(i) and its implementing regulations, Ill. Admin. Code title 20, § 1285.30(d–f), together requiring a court to issue a contempt order against a prisoner refusing to submit a blood sample as required by the state's DNA database statute, 730 ILCS 5/5–4–3, violated the separation of powers established in S.H.A. Const. Art. 2, § 1. The court agreed with the prisoner's assertion that the statute and the regulations vitiated the court's discretion in exercising its contempt power. These provisions, the court reasoned, removed the judiciary's inherent discretion by directing that the compliance orders "shall" be entered and, if violated, that such orders "shall" be punishable by contempt of court. The legislative function of enacting general laws and the executive function of enforcing those laws were complemented, the court explained, by the judicial function of interpreting and applying laws in specific cases. A unique and integral part of the judicial role in resolving specific controversies, the court said, was the contempt authority, which imbued the judiciary with the power to punish certain types of conduct, i.e., acts that significantly interfered with the dignity of the court or acts that defied court orders. Observing that the power to punish for contempt did not depend on constitutional or legislative grant, the court stressed that, because the power of contempt was inherent in the judiciary, and vital to its authority, the other branches of government could not require judges to exercise their discretionary authority to punish for contempt. Also agreeing with the prisoner's second assertion, the court said that the provisions under review conscripted the courts of Illinois into the service of an essentially administrative program for the collection and analysis of blood samples for inclusion in the state's data bank. The courts' mandatory participation by the entry of compliance orders and the enforcement of the orders with the contempt power did not, the court said, advance a judicial prerogative. Instead, the court continued, judicial participation in the administrative scheme promoted an executive purpose, maintaining a blood data bank for law enforcement purposes. The Illinois Constitution, the court declared, expressly prohibited one branch of government

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from exercising the functions of another. Determining that the challenged provisions attempted to confer upon the judiciary a ministerial or administrative duty to process blood collection demands, the court held that the provisions violated the separation of powers principles by assigning nonjudicial tasks to the courts of Illinois.

§ 12[b] Separation of powers—Separation of powers not violated

[Cumulative Supplement]

There is authority holding that a state's DNA database statute did not violate the principle of separation of powers.

Dismissing a state prisoner's habeas corpus petition, the court, in Dial v. Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999), held that Pennsylvania's DNA database statute, 35 P.S. §§ 7651.101–7651.1102, did not deprive the prisoner of eligibility for parole and therefore did not violate the principle of separation of powers. Acknowledging that final judgments of the judiciary were inviolable and that a final judgment of sentence could not be disturbed by a subsequent legislative change, the court pointed out that this rule did not preclude a legislative enactment changing the manner of executing a sentence. The court said that, while the minimum sentence determined parole eligibility, the maximum sentence set forth the period of time that the state intended to exercise its control over offenders for their errant behavior. Describing judicial discretion as a determination of the period of control over the person of the offender in view of the nature of the crime, the background of the defendant and the other pertinent considerations for such a decision, the court declared that it was this exercise of discretion that the rule of the "inviolability of final judgment" sought to protect. On the other hand, the court said, the institution where the sentence was to be served, the objects sought to be accomplished during this period of control, and all the other penological considerations were not primarily judicial functions. Determining that the requirement that the prisoner submit to pre–release withdrawal of a blood sample for DNA testing did not alter his maximum sentence or alter his parole eligibility date, the court observed that, once eligibility had been achieved by incarceration for the prescribed minimum time, actual release on parole could depend on full compliance with a variety of prison rules and administrative requirements. The statute, the court said, defined an administrative requirement that was required to be satisfied prior to release. This requirement, the court continued, was similar to the requirement for acquisition and storage of other convict identification records in the form of photos, fingerprints and physical description compiled at the time of arrest. No provision of the statute, the court emphasized, altered the judgment of sentence rendered by the sentencing court. As noted in § 6[b] and § 16, respectively, the court also held that the statute did not constitute ex post facto legislation and did not authorize an unreasonable search and seizure.

CUMULATIVE SUPPLEMENT

Cases:

Legislature did not violate the separation-of-powers doctrine when it created DNA collection statute, authorizing collection of DNA for purposes of testing and inclusion in the state's DNA database, and prohibiting release on parole if prison inmate refuses to give DNA sample; DNA database was not punitive, prison inmate had no right to parole, and prison inmate had no protected liberty interest in parole. Vernon's Ann.Texas Const. Art. 3, § 30; V.T.C.A., Government Code §§ 411.141–411.154. Johnson v. Davis, 178 S.W.3d 230 (Tex. App. Houston 14th Dist. 2005), reh'g overruled, (Nov. 3, 2005) and rule 53.7(f) motion granted, (Jan. 2, 2006).

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§ 13. Substantive due process

[Cumulative Supplement]

The courts in the following cases expressed the view that a nonconsensual extraction of blood from a prison inmate pursuant to a state DNA database statute does not violate the requirements of substantive due process.

See Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994), in which the court stated that an alleged violation of the ex post facto clause arising from the enforcement of a state DNA database statute is not actionable under the Fourteenth Amendment as a violation of substantive due process.

The court, in Kruger v. Erickson, 875 F. Supp. 583 (D. Minn. 1995), aff'd on other grounds, 77 F.3d 1071 (8th Cir. 1996), declared that the nonconsensual drawing of blood from a prison inmate in order to provide a DNA sample pursuant to a DNA database statute does not violate the inmate's right to substantive due process, as long as the blood draw is performed according to medically acceptable protocols. Such a procedure, the court said, does not shock the conscience nor offend the sense of justice. As noted in § 3 and § 6[c], respectively, the court also held that held that the nonconsensual drawing of blood from the prisoner did not amount to the unnecessary and wanton infliction of pain prohibited by the Eighth Amendment, and that threatening prisoners who failed to provide DNA samples with a loss of "good time credit" did not violate the ex post facto clause as it applied to prisoners convicted before the statute's enactment.

Holding that V.A.M.S. § 650.055, requiring certain prisoners to submit a blood sample for the state's DNA database, does not violate substantive due process, the court, in Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997), said that the nonconsensual extraction of blood from an individual in a simple, medically acceptable procedure does not implicate the due process clause. As noted in § 6[c], § 10, § 11, § 15, and § 20[a], respectively, the court also held that § 650.055 did not violate the ex post facto clause or prisoners' right to privacy or right against self–incrimination, or authorize an unreasonable search and seizure, and that the statute applied to a prisoner convicted of a predicate offense under a prior version of the statute defining that offense.

CUMULATIVE SUPPLEMENT

Cases:

State law requiring that particular inmates provide prison officials with blood samples for purposes of creating a DNA database was not a bill of attainder, given that the law referred only to conduct for which the individual has already been convicted. V.T.C.A., Government Code § 411.148. Hunt v. Johnson, 90 Fed. Appx. 702 (5th Cir. 2004).

Non–consensual extraction of DNA from a federal prisoner who was convicted of bank robbery, for placement of prisoner's DNA profile into the FBI's Combined DNA Index System (CODIS), as required under the DNA Analysis Backlog Elimination Act of 2000, did not violate prisoner's Fifth Amendment due process rights; the drawing of blood by a medical professional in an acceptable environment was not offensive to the ordinary sense of justice. U.S. Const. Amend. V; DNA Analysis Backlog Elimination Act of 2000, § 2(a, e), 42 U.S.C.A. § 14135(a, e). Vore v. U.S. Dept. of Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003).

Florida's DNA collection statute, which required administrative regulations be in place within 180 days of the enactment of a statute requiring such rules, did not give rise to substantive due process rights. U.S.C.A. Const.Amend. 14; West's F.S.A. § 120.54(1)(b). Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005).

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Involuntary extraction of DNA samples from all those convicted of felonies did not create an overly broad classification that infringed upon defendant's due process rights; statute was minimally intrusive, it did not infringe upon privacy rights that were recognized as reasonable, and it served a compelling state interest. U.S.C.A. Const.Amend. 14; West's Ann.Cal.Penal Code § 296.1. People v. Travis, 139 Cal. App. 4th 1271, 44 Cal. Rptr. 3d 177 (1st Dist. 2006), review denied, (Sept. 20, 2006) [citing annotation].

For purpose of DNA and Forensic Identification Data Base and Data Bank Act of 1998, which provided for collection of DNA samples upon conviction of felony, defendant was "convicted" of felony assault when he pleaded guilty to that offense, even though "wobbler" offense was later reduced to misdemeanor upon his completion of counseling program; thus, defendant's DNA sample taken after guilty plea was not taken in violation of his Fourth Amendment rights, and he was not entitled to expungement or return of sample. U.S.C.A. Const.Amend. 4; West's Ann.Cal.Penal Code § 17; § 296 (2003). Coffey v. Superior Court, 29 Cal. Rptr. 3d 59 (Cal. App. 1st Dist. 2005), opinion modified on denial of reh'g, Coffey v. Superior Court, 2005 WL 1406185 (Cal. App. 1st Dist. 2005).

Statute requiring the genetic marker testing of individuals convicted of specific enumerated offenses was rationally related to legitimate governmental interest in apprehension of repeat and violent offenders, and thus did not violate defendant's substantive due process rights. U.S.C.A. Const. Amends. 5, 14; N.R.S. 176.0913. Gaines v. State, 998 P.2d 166 (Nev. 2000).

Parolee did not have fundamental privacy interest protected by substantive due process in the information contained in DNA specimen and profile obtained while he was a prisoner, pursuant to Ohio statute requiring the collection of DNA specimens from convicted felons; DNA profile did not contain sensitive personal information, such as race, criminal history or case-related information, but instead was useful for human identity testing only, and statute prescribed strict penalties for misuse of the samples or unauthorized disclosure of such information. Ohio R.C. § 2901.07. Wilson v. Collins, 517 F.3d 421 (6th Cir. 2008) (applying Ohio law).

Fourth Amendment rights of convicted and incarcerated defendant whose blood was drawn for DNA analysis under DNA collection statute were not violated simply because blood draw was taken without any level of individualized suspicion, as DNA testing performed pursuant to statute was not aimed at discovering incriminating evidence of particular criminal activity by donors, state's interest in defendant's identity was triggered not by any individualized suspicion that he had engaged in any particular criminal activity prior to blood draw, but as incidental to his demonstrated willingness to commit certain felony offenses, and, thus, concerns addressed by general requirement of some level of individualized suspicion were not present during blood draw. U.S.C.A. Const.Amend. 4; West's T.C.A. § 40–35–321. State v. Scarborough, 201 S.W.3d 607 (Tenn. 2006).

Statutes providing for Commonwealth's DNA data bank, which statutes include a requirement that all convicted felons submit blood samples for DNA testing, do not violate due process. U.S. Const. Amend. 14; Const. Art. 1, § 11; Code 1950, §§ 19.2–310.2 to 19.2–310.7. Johnson v. Com., 259 Va. 654, 529 S.E.2d 769 (2000).

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§ 14. Unreasonable search and seizure—traditional Fourth Amendment analysis

[Cumulative Supplement]

Applying, or apparently applying, traditional Fourth Amendment analysis rather than the "special needs," as discussed

in § 16, or "prisoners' reduced privacy," as discussed in § 15, exceptions to that analysis, 21 the courts in the following

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cases expressed the view that a state's DNA database statute, in requiring certain persons to submit a DNA sample in the absence of a warrant or individualized suspicion, does not authorize an unreasonable search and seizure in violation of that amendment.

Apparently applying traditional Fourth Amendment principles, the court, in Matter of Appeal in Maricopa County Juvenile Action Numbers JV-512600 and JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. Div. 1 1996), review denied, (Jan. 14, 1997), held that A.R.S. §§ 13–4438, 31–281, requiring juveniles to submit samples of their DNA to the state's DNA database, does not authorize an unreasonable search and seizure of the juveniles, in violation of the Fourth Amendment, even though the statutes do not require a warrant or probable cause. Acknowledging that a compelled intrusion into the body for blood is found to be a Fourth Amendment "search," and that, normally, a search or seizure is not considered reasonable unless it is accompanied by the judicial warrant issued after a finding of probable cause, the court declared that the procedural safeguards required by the statutes are more stringent than those required for the issuance of a warrant based on a finding of probable cause. Under the statutes, the court explained, an order to draw blood follows either an adjudication of delinquency based on a determination beyond a reasonable doubt, or a constitutionally safeguarded admission by a juvenile that an enumerated sexual offense was committed. Further, the court added, the statutes apply only after the juvenile has been incarcerated, committed to a secure care facility, or placed on probation. In effect, the court concluded, the standard required by the statutes is beyond a reasonable doubt, and this is a substantially greater burden than the finding of probable cause required for a search warrant. As noted in § 10, § 18, and § 22, respectively, the court also held that the statutes did not violate the juveniles' right to privacy; that the statutes could properly be applied to juveniles even though the statutes affected the juveniles beyond the age of majority; and that the application of the statutes to the juveniles was permitted by state statutes governing the retroactivity of state legislation, even though the conduct admitted by the juveniles occurred prior to the enactment of the database statutes.

Expressly applying the "traditional principles" of Fourth Amendment jurisprudence, rather than the "special needs" or "prisoners' reduced privacy" doctrines, the court, in People v. Wealer, 264 Ill. App. 3d 6, 201 Ill. Dec. 697, 636 N.E.2d 1129 (2d Dist. 1994), held that the DNA database statute of Illinois S.H.A. 730 ILCS 5/5–4–3, requiring convicted sex offenders to submit a DNA sample in the absence of a warrant or individualized suspicion, does not authorize an unreasonable search and seizure under the Fourth Amendment. Explaining that the warrant requirement protects privacy interests by assuring citizens subject to a search or seizure that such intrusions are not random or arbitrary acts of government, the court determined that the statute adequately addresses the concerns underlying the warrant requirement. The statute provides for an objective determination, the court stressed, because it entirely divests a court or public official of any discretion. The statute, the court said, expressly mandates that "[a]ny person convicted of … a sexual offense … shall … be required to submit specimens." Its scope and objective are narrowly limited, the court continued, because it provides for nonconsensual sampling for the purpose of maintaining a data bank, and the information is kept strictly confidential and is made available only to law enforcement officials. Furthermore, the court noted, any risk that the statute might be applied in an arbitrary or oppressive fashion is precluded because its application is uniformly applied to a narrow class of individuals (i.e., persons convicted of certain sex offenses). Accordingly, the court reasoned, the requirement of a warrant would provide little, if any, additional protection in addition to the assurances of certainty and regularity already inherent in the statute. Considering, then, whether the suspicionless nature of the sampling mandated under the statute runs afoul of the general principle requiring that searches and seizures be supported by probable cause, and quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639, 4 I.E.R. Cas. (BNA) 224, 130 L.R.R.M. (BNA) 2857, 13 O.S.H. Cas. (BNA) 2065, 49 Empl. Prac. Dec. (CCH) ¶ 38791, 111 Lab. Cas. (CCH) ¶ 11001, 1989 O.S.H. Dec. (CCH) ¶ 28476 (1989) (a case outside the scope of the present annotation), the court said that the mere fact that the statute mandates warrantless, suspicionless sampling does not necessarily render the search unreasonable, as "a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable." The court observed that the physical intrusion imposed by the testing mandated under the statute is relatively slight and poses no threat to the health or safety of the individual tested, and the collection of samples must be performed in a medically approved manner, and only certain qualified medical personnel are permitted to blood. Because the blood testing mandated under the statute is minimally intrusive, the court said, the testing could proceed with

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balancing the government's interest in conducting nonconsensual blood testing of convicted sex offenders, the degree to which the statute furthers that interest, and the magnitude of the intrusion on a convicted sex offender's privacy rights. Declaring that it is beyond dispute that the state has a legitimate interest in deterring and prosecuting recidivist acts committed by sex offenders, the court said that the state's interest is especially compelling when one considers that sex offenders frequently target children as their victims. The state, the court continued, has an interest in establishing the identity of convicted sex offenders where traditional methods of identification might prove otherwise inadequate or inconclusive. Moreover, the court added, DNA evidence can be used to aid identification of repeat offenders who attempt to conceal or alter their identity. The statutorily mandated DNA testing scheme is closely related, the court reasoned, to the state's interest in deterring and prosecuting recidivist acts committed by sex offenders because it provides an improved technological method for identifying and eliminating potential suspects. Turning, then, to a consideration of the privacy interest that a convicted sex offender has in personal identity, and finding that interest to be minimal, the court said that an analogy to fingerprints is convincing, as the blood and saliva sampling mandated under the statute infringes on similar privacy interests. When a suspect is arrested upon probable cause, the court observed, identification of that suspect becomes a matter of legitimate state interest, and the suspect can hardly claim privacy in it. As noted in § 10, the court also held that the statute does not violate the state constitutional right to privacy.

Saying that searches performed under ORS 137.076, the state's DNA database statute, fall into a narrow class of searches and seizures of prisoners that may be performed without probable cause and without a penological objective, the court, in State ex rel. Juvenile Dept. of Multnomah County v. Orozco, 129 Or. App. 148, 878 P.2d 432 (1994), review denied, 326 Or. 58, 944 P.2d 947 (1997), apparently applying traditional Fourth Amendment principles, held that the statute does not authorize an unreasonable search and seizure under that amendment or its state constitutional analogue, Oregon Constitution, Art. 1, § 9. These searches and seizures are performed for law enforcement purposes, specifically, the court explained, to record the immutable characteristics of arrestees and offenders for use in the investigation of future crimes. Included in this class, the court said, are the fingerprints, palm prints, toe prints and other personal identifiers that are seized by law enforcement officers after arrest. Saying that it was unwilling to say that fingerprinting someone after arrest is an unreasonable seizure, the court declared that, likewise, drawing a small amount of blood for a DNA "fingerprint" is not an unreasonable search when the blood is drawn from a sex offender, after a magistrate has determined that the statutory criteria have been met. While blood testing is arguably a greater insult to human dignity than fingerprinting, the court acknowledged, ORS 137.076 surrounds blood testing with greater procedural safeguards. Like a fingerprint or a voice exemplar, the court reasoned, blood testing is a non–testimonial record of physical characteristics and involves none of the probing into an individual's life and thoughts that marks an interrogation or a search.

CUMULATIVE SUPPLEMENT

Cases:

When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment, the United States Supreme Court held in Maryland v. King, 2013 WL 2371466 (U.S. 2013), in a 5-4 decision written by Justice Kennedy. The Court's ruling reversed the decision of Maryland's highest court, King v. State, 425 Md. 550, 42 A.3d 549 (2012), cert. granted, 133 S. Ct. 594, 184 L. Ed. 2d 390 (2012), that collecting a DNA sample from an arrestee charged with but not yet convicted of a violent crime pursuant to Maryland's DNA Collection Act, Md. Code Ann., Pub. Safety § 2-501 et seq., violated the Fourth Amendment, because solving cold cases was the only state interest served by the collection of a defendant's DNA, and the arrestee's expectation of privacy outweighed that interest. Justice Kennedy's majority opinion acknowledged that the process used here to take the DNA sample, known as a buccal swab, in which a cotton swab or filter paper is applied to the inside of the arrestee's cheeks to obtain skin cells, is a search under the Fourth Amendment. Individualized suspicion is not required to justify the search in this context, however, because the arrestee is already in valid police custody for a serious offense supported by probable cause. Instead, the search is analyzed for

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reasonableness, which, in turn, is determined by weighing the promotion of the government's legitimate interests against the degree to which the search intrudes upon the suspect's privacy. The fact that the intrusion occasioned by a buccal swab is negligible "is of central relevance to determining reasonableness," wrote Justice Kennedy. The Maryland DNA Collection Act serves the legitimate, and well established, government interest in having law enforcement officers, in a safe and accurate way, "process and identify the persons and possessions they must take into custody," Justice Kennedy observed. An arrestee's identity is not "limited to the name on the arrestee's birth certificate," because a suspect's criminal history is "a critical part of his identity that officers should know when processing him for detention." Police already use mugshots to identify suspects and compare an arrestee's fingerprints against electronic databases of known criminals and unsolved crimes. "In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides," Justice Kennedy stated, adding that there can be little reason to question "the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution." DNA identification thus represents "an important advance in the techniques used by law enforcement to serve legitimate police concerns for as long as there have been arrests, concerns the courts have acknowledged and approved for more than a century." In contrast to the substantial government interest served by DNA analysis in identifying arrestees, a buccal swab is a minimal intrusion upon a suspect's privacy. This is particularly so given the diminished expectations of privacy of an individual taken into police custody. Citing the Court's recent decision in Florence v. Board of Chosen Freeholders of County of Burlington, 132 S. Ct. 1510, 182 L. Ed. 2d 566 (2012), Justice Kennedy noted that the Court has approved of more extensive explorations of detainees booked into custody, including requiring some detainees to lift their exposed genitals or cough in a squatting position. A buccal swab, on the other hand, involves a gentle rub along the inside of the cheek, and it does not break the skin. The processing of an arrestee's DNA pursuant to procedures authorized by Congress and set forth in the FBI's Combined DNA Index System (CODIS) also does not intrude on his privacy in a way that would make the DNA identification unconstitutional, Justice Kennedy concluded. The points of comparison used to identify an arrestee come from non-coding parts of the DNA that do not reveal genetic traits. The Maryland DNA Collection Act also provides safeguards against the use of a DNA sample for any purpose other than identification.

Collection of a DNA sample from prisoner did not violate his Fourth Amendment rights. U.S. Const. Amend. IV. Sheffield v. Trevino, 207 Fed. Appx. 403 (5th Cir. 2006).

District court did not err in dismissing Fourth Amendment claim brought by prisoner, alleging improper taking of DNA samples, where evidence presented at preliminary hearing established that there was probable cause to arrest and detain prisoner on first-degree murder charge that was later dismissed. U.S. Const. Amend. IV. Simon v. Dixon, 141 Fed. Appx. 305 (5th Cir. 2005).

Extraction of blood from a prisoner to collect a DNA sample for purposes of identification, like fingerprinting, implicates Fourth Amendment rights. U.S. Const. Amend. IV. Groceman v. U.S. Dept. of Justice, 354 F.3d 411 (5th Cir. 2004).

Taking a DNA sample from convicted felon is a Fourth Amendment search, but such a search may be reasonable if it falls into an exception to the warrant requirement. U.S. Const. Amend. IV. U.S. v. Hook, 471 F.3d 766 (7th Cir. 2006).

California's DNA and Forensic Identification Data Base and Data Bank Act (DNA Act), which required law enforcement officers to collect DNA samples from all adults arrested for felonies, did not violate Fourth Amendment, facially or as applied to anyone arrested for, or charged with, a felony offense by California state or local officials. U.S.C.A. Const.Amend. 4; West's Ann.Cal.Penal Code § 296(a)(2)(C). Haskell v. Harris, 2014 WL 1063399 (9th Cir. 2014).

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facially or as applied to anyone arrested for, or charged with, a felony offense by California state or local officials. U.S.C.A. Const.Amend. 4; West's Ann.Cal.Penal Code § 296(a)(2)(C). Haskell v. Harris, 745 F.3d 1269 (9th Cir. 2014).

Arrestees seeking preliminary injunction barring enforcement of California statute requiring the warrantless seizure of DNA from any adult arrested for any felony did not have substantial likelihood of success on the merits of their claim that the taking of arrestees' DNA samples constituted an unreasonable search under the Fourth Amendment; while arrestees had a greater privacy interest than prisoners, they had a lesser privacy interest than the general population, arrestees' privacy interest did not outweigh the government's compelling interest in identifying arrestees, and its interest in using arrestees' DNA to solve past crimes, arrestees did not articulate how DNA differed in a legally significant way from other means of identification, DNA evidence served to identify both who arrestee was and what arrestee had done, statute itself provided protections against such misuse, and there was no evidence DNA samples of arrestees had been misused. U.S.C.A. Const.Amend. 4; West's Ann.Cal.Penal Code § 296(a)(2)(C). Haskell v. Brown, 2009 WL 5062184 (N.D. Cal. 2009).

Taking DNA sample, used to convict defendant for charged offenses of rape, sodomy, and burglary, from defendant while he was on probation for earlier reckless endangerment convictions did not violate Fourth Amendment; statutes governing collection of DNA samples authorized collection of DNA samples from persons who had been convicted of reckless endangerment and were serving probation, and defendant's rights pertaining to the seizure of his blood were outweighed by the state's interest in rapidly identifying repeat or habitually dangerous criminals. U.S. Const. Amend. IV; Code 1975, §§ 13A–6–24, 36–18–24(c, e). D.B. v. State, 861 So. 2d 4 (Ala. Crim. App. 2003).

Collection of DNA sample from defendant, who had been convicted of non-violent felony drug offenses, as required under State Convicted Offender DNA Database Act, constituted a reasonable "search" and "seizure" under Fourth Amendment, as defendant's expectation of privacy in intrusive nature of DNA test was outweighed by state's interests in collecting DNA samples and maintaining DNA database; defendant's privacy rights implicated by searches under Act were minimal by virtue of his convictions, and intrusion of blood test was not significant, whereas state had substantial interests in deterring and detecting all recidivist acts, not just those considered to be violent, and data submitted by state indicated that violent recidivism was not confined to violent felons. U.S. Const. Amend. IV; West's A.C.A. § 12–12–1101 et seq. Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005).

DNA Fingerprint, Unsolved Crime and Innocence Protection Act requirement that defendant arrested for arson submit cheek swab DNA sample did not violate defendant's Fourth Amendment rights; based on probable cause, defendant was arrested for serious offense of arson, defendant was asked to provide a cheek swab upon booking as part of routine collection of identifying information, and defendant was promptly charged with, and eventually convicted of, arson. U.S. Const. Amend. 4; Cal. Penal Code §§ 296.1(a)(1)(A), 298.1(a). People v. Buza, 2018 WL 1570366 (Cal. 2018).

Investigators' statutory error under the DNA and Forensic Identification Data Base and Data Bank Act, in collecting defendant's blood samples for deoxyribonucleic acid (DNA) testing when defendant's offenses did not authorize such collection under the Act, did not violate the Fourth Amendment, and thus the DNA evidence was not subject to exclusion under California law, where the samples were collected when defendant was in custody serving a sentence for misdemeanor convictions and awaiting transfer to state prison based on a parole revocation with regard to a prior felony conviction. U.S.C.A. Const.Amend. 4; West's Ann.Cal. Const. Art. 1, § 28; West's Ann.Cal.Penal Code § 1538.5; § 296(a) (1) (1999). People v. Robinson, 47 Cal. 4th 1104, 104 Cal. Rptr. 3d 727, 224 P.3d 55 (2010).

DNA collected from arrestees under DNA Act served purpose of investigation, rather than identification, which did not comport with state constitutional principals protecting against suspicionless searches; DNA taken at time of arrest was not intended to be used, nor would it be usefully employed, to verify arrestees' identity, but rather, DNA was intended to be used and was employed to investigate arrestees' possible involvement in criminal conduct unrelated to crime of arrest

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and to add to DNA database for purposes of future crime solving. Cal. Const. art. 1, § 13; Cal. Penal Code §§ 295.1(a), 296.1(a)(1)(A), 299.5(k). People v. Buza, 2014 WL 6807723 (Cal. App. 1st Dist. 2014).

The compulsory and warrantless collection of buccal swab DNA samples from all adult felony arrestees for DNA testing and analysis, as authorized by the 2004 Amendment to the DNA Act, does not violate the Fourth Amendment; collection and carefully restricted use of identifying DNA information taken from felony arrestees promotes the legitimate governmental interest in the accurate and expeditious solving of past crimes, and the privacy intrusion caused by a buccal swab of a felony arrestee must be viewed as minor compared to society's compelling goal of ensuring that innocent people are exonerated. U.S. Const. Amend. 4; Cal. Penal Code § 296(a)(2)(C). People v. Lowe, 2013 WL 6252413 (Cal. App. 4th Dist. 2013), as modified, (Dec. 4, 2013).

Requiring juvenile, found to have committed felony car theft and driving without license, to provide deoxyribonucleic acid (DNA) samples did not violate Fourth Amendment; intrusion into juvenile's Fourth Amendment interests, including his interest in confidentiality of juvenile court proceedings, did not outweigh legitimate government interest in DNA testing as aid to law enforcement. U.S. Const. Amend. IV; West's Ann.Cal.Penal Code § 296(a)(1). In re Calvin S., 150 Cal. App. 4th 443, 58 Cal. Rptr. 3d 559 (3d Dist. 2007), as modified on denial of reh'g, (May 30, 2007) and review denied, (July 18, 2007).

The compulsory, nonconsensual extraction of DNA samples constitutes a search and seizure under the Fourth Amendment. U.S. Const. Amend. IV. People v. Travis, 139 Cal. App. 4th 1271, 44 Cal. Rptr. 3d 177 (1st Dist. 2006) (citing annotation).

Law allowing collection of defendant's DNA, known Katie's Law, under which defendant's DNA was collected following arrest for aggravated driving, was not unconstitutional as applied to defendant in first degree murder after deliberation prosecution; although law referred to preventing and solving crimes, identification was not the sole governmental interest because DNA had been used numerous times in the exoneration of innocent individuals charged with or convicted of crimes. U.S. Const. Amend. 4; Colo. Rev. Stat. Ann. §§ 16-23-101, 16-23-102(1). People v. Valdez, 2017 COA 41, 405 P.3d 413 (Colo. App. 2017), cert. denied, 2017 WL 4872875 (Colo. 2017).

Cheek swab taken from defendant as a juvenile on deferred adjudication in violation of juvenile DNA collection statute violated defendant's right of protection against unreasonable searches and seizures; defendant, as a juvenile on a deferred adjudication, had a greater expectation of privacy with respect to DNA collection than did a juvenile on probation. U.S. Const. Amend. 4; Colo. Rev. Stat. Ann. § 19-2-925.6(1). People v. Casillas, 2015 COA 15, 2015 WL 795765 (Colo. App. 2015).

Statute requiring defendant convicted of second degree murder to submit DNA samples did not violate defendant's Fourth Amendment right against unreasonable searches and seizures; defendant did not have reasonable expectation of privacy in blood samples that outweighed State's interest in identifying convicted felons in manner that could not be circumvented, in apprehending criminals, in preventing recidivism, and in absolving innocent persons. U.S. Const. Amend. IV; West's F.S.A. § 943.325. Smalley v. State, 889 So. 2d 100 (Fla. Dist. Ct. App. 5th Dist. 2004).

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Statutory requirement that defendant, who was convicted of lewd and lascivious molestation of ten–year–old girl, provide DNA samples did not violate his Fourth Amendment right to be free from unlawful searches. U.S. Const. Amend. IV; West's F.S.A. § 943.325. Springer v. State, 874 So. 2d 719 (Fla. Dist. Ct. App. 5th Dist. 2004).

Even assuming taking of defendant's DNA sample for a prior offense pursuant to Georgia's DNA statute and storing it in a database was a search, such search was reasonable under the Fourth Amendment, notwithstanding that defendant was sentenced for the prior offense pursuant to Georgia's First Offender statute, providing for expungement of the crime following successful completion of the sentence, where defendant was still deemed a convicted felon at the time of a subsequent robbery investigation, since he had not yet completed his sentence for the prior offense, and state had strong interest in maintaining database of convicted felons. U.S.C.A. Const.Amend. 4; West's Ga.Code Ann. §§ 35–3–160(b, c), 42–8–62(a), 42–8–65(c). U.S. v. Hinton, 113 F. Supp. 3d 1277 (N.D. Ga. 2015) (applying Georgia law).

Georgia statute requiring DNA sampling of all convicted felons was not invalid as an unreasonable search and seizure; bodily intrusion of taking a blood or saliva sample was minimal, and state had compelling interest in obtaining reliable and accurate identifying characteristics of individuals convicted of felonies which outweighed convicted felons' privacy interests. U.S. Const. Amend. IV; West's Ga.Code Ann. § 24–4–60. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003) (applying Georgia law).

Statute requiring any person convicted of felony and incarcerated in state correctional facility to provide sample for DNA analysis to determine identification characteristics did not unconstitutionally violate the privacy rights and search and seizure rights of convicted felons incarcerated in state correctional facilities. U.S. Const. Amend. IV; West's Ga.Const. Art. 1, § 1, Par. 13; West's Ga.Code Ann. § 24–4–60. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007).

Sentencing statute requiring juvenile adjudicated delinquent for possession of controlled substance to submit saliva specimen for DNA analysis did not violate juvenile's Fourth Amendment right to be free from unreasonable searches and seizures, despite argument that juvenile had greater constitutional right to privacy than adult offenders and despite fact that offense was not sexual in nature. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. In re Clifton R., 306 Ill. Dec. 444, 857 N.E.2d 843 (App. Ct. 1st Dist. 2006).

Statute authorizing extraction and storage of DNA samples did not violate Fourth Amendment right against unreasonable searches and seizures of defendant convicted of possession of controlled substance. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. People v. McAfee, 304 Ill. Dec. 575, 853 N.E.2d 107 (App. Ct. 3d Dist. 2006).

Statute section of the Unified Code of Corrections allowing for extraction and storage of DNA of convicted felons did not violate defendant's fourth amendment right to be free from unreasonable searches and seizures under federal or state constitutions. U.S. Const. Amend. IV; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4–3(a). People v. Adams, 299 Ill. Dec. 835, 842 N.E.2d 1187 (App. Ct. 1st Dist. 2006).

Extraction of defendant's blood and storage of his DNA profile under statute requiring submission of blood, saliva, or tissue samples in certain situations did not violate defendant's Fourth Amendment right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. People v. Tolliver, 299 Ill. Dec. 821, 842 N.E.2d 1173 (App. Ct. 1st Dist. 2006).

Statute providing that any person convicted of a felony offense under Illinois law must submit a blood, saliva, or tissue specimen to the Illinois Department of State Police for DNA analysis did not violate defendant's constitutional right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3(a). People v. Jennings, 301 Ill. Dec. 331, 846 N.E.2d 934 (App. Ct. 1st Dist. 2005).

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Section of the Unified Code of Corrections which allowed for the extraction and storage of the DNA of convicted felons did not violate the Fourth Amendment. U.S. Const. Amend. IV; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4–3(a). People v. Fort, 298 Ill. Dec. 417, 839 N.E.2d 1064 (App. Ct. 1st Dist. 2005).

Statute allowing courts to order persons convicted of felonies to submit biological specimens for DNA analysis did not violate defendant's constitutional right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4–3(a)(3.5). People v. Burdine, 298 Ill. Dec. 250, 839 N.E.2d 573 (App. Ct. 1st Dist. 2005).

Statute requiring convicted felons to provide DNA samples does not violate Constitutional prohibition on unreasonable searches and seizures; State's interests in deterring and prosecuting recidivist criminal activity, coupled with the scientific accuracy of identifying a person through his or her DNA, outweighs the minimal intrusion a convicted felon, whose identity is a matter of state interest, experiences from a blood draw. U.S. Const. Amend. IV; S.H.A. Const. Art. 1, § 6; 730 ILCS 5/5–4–3 (2002 Bar Ed.) People v. Kelly, 297 Ill. Dec. 749, 838 N.E.2d 236 (App. Ct. 4th Dist. 2005).

Statute requiring trial court to order person convicted of qualifying felony to submit DNA sample for storage in state DNA databank did not violate defendant's Fourth Amendment right against unreasonable searches and seizures; purpose of statute was to create database of genetic identities of recidivist criminal offenders. U.S. Const. Amend. IV; S.H.A. 720 ILCS 5/1–1; 730 ILCS 5/5–4–3(a)(3.5). People v. Radford, 296 Ill. Dec. 272, 835 N.E.2d 127 (App. Ct. 1st Dist. 2005).

Statute that required defendant convicted of delivery of a controlled substance to submit a DNA specimen to Department of State Police for analysis did not violate defendant's Fourth Amendment right to be free from unreasonable searches and seizures under balancing approach. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. People v. Banks, 295 Ill. Dec. 722, 833 N.E.2d 928 (App. Ct. 1st Dist. 2005).

Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under state law does not violate Fourth Amendment; public has significant interest in preventing recidivism, identify of person convicted of crime is matter of state interest, defendants convicted of felonies lose any legitimate expectation of privacy in identifying information derived from bodily sampling used for law enforcement and deterrent purposes, and physical intrusion caused by submission of blood, saliva, or tissue sample for DNA testing is slight and virtually free from risk. U.S. Const. Amend. IV. People v. Garvin, 285 Ill. Dec. 953, 812 N.E.2d 773 (App. Ct. 2d Dist. 2004).

Statute that required juvenile, who was adjudicated delinquent based on the commission of a nonsexual felony offense, to provide a deoxyribonucleic acid (DNA) sample for analysis and indexing did not violate the Fourth Amendment; the DNA indexing statute limited the dissemination of genetic marker grouping analysis to peace officers, maintaining the genetic information advanced the Juvenile Court Act's goals of protecting the public and rehabilitating the juvenile, as well as the State's goal of promoting an effective and accurate criminal justice system, and juvenile's status as a nonsexual offender did not diminish the State's interest in her DNA, as there were a number of ways a nonsexual offender could leave DNA at a crime scene. U.S.C.A. Const.Amends. 4, 14;S.H.A. 730 ILCS 5/5–4–3. In re Lakisha M., 227 Ill. 2d 259, 882 N.E.2d 570 (2008).

Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under State law did not violate defendant's Fourth Amendment right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4–3. People v. Robinson, 872 N.E.2d 73 (Ill. App. Ct. 1st Dist. 2007).

Compulsory extraction and perpetual storing of DNA of defendant convicted of burglary, under statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony, did not violate his Fourth

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Amendment right to be free from unreasonable searches. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. People v. Jamison, 869 N.E.2d 986 (Ill. App. Ct. 1st Dist. 2007).

Compulsory extraction and perpetual storage of DNA of defendant convicted of possession of a controlled substance, under section of Unified Code of Corrections mandating DNA sampling from any person convicted of a felony, did not violate defendant's Fourth Amendment right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4–3(a). People v. Fort, 869 N.E.2d 950 (Ill. App. Ct. 1st Dist. 2007).

Sentencing statute requiring juvenile adjudicated delinquent for aggravated criminal sexual abuse to submit saliva specimen for DNA analysis did not violate juvenile's Fourth Amendment right to be free from unreasonable searches and seizures, despite arguments that juveniles have greater privacy rights than convicted felons and that state interest is not as compelling in juvenile cases because adolescents are more amenable to rehabilitation and less likely to commit future crimes than adult felons. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. In re Rogelio S., 378 Ill. App. 3d 211, 882 N.E.2d 612 (1st Dist. 2007).

Statute authorizing compulsory extraction and inclusion of defendant's DNA in state and national databases was constitutional on its face and as applied to defendant, and statute did not violate defendant's Fourth Amendment right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. People v. James, 851 N.E.2d 91 (Ill. App. Ct. 1st Dist. 2006).

Compulsory extraction and perpetual storage of defendant's DNA does not violate his fourth amendment right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3(a). People v. Squire, 851 N.E.2d 87 (Ill. App. Ct. 1st Dist. 2006).

Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under state law did not violate Fourth Amendment prohibition against unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. People v. Slayton, 363 Ill. App. 3d 27, 299 Ill. Dec. 816, 842 N.E.2d 1168 (1st Dist. 2006).

Compulsory extraction of defendant's DNA pursuant to statute on persons convicted of, or found delinquent for, certain offenses did not violate defendant's right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; S.H.A. 730 ILCS 5/5–4–3. People v. Foerster, 359 Ill. App. 3d 198, 295 Ill. Dec. 736, 833 N.E.2d 942 (1st Dist. 2005).

Under balancing test for considering issue of DNA testing, the State's interest in the search and seizure is balanced against the individual's expectation of privacy and the intrusive nature of the search. U.S. Const. Amend. IV. People v. Redmond, 357 Ill. App. 3d 256, 293 Ill. Dec. 708, 828 N.E.2d 1206 (1st Dist. 2005).

Statute requiring trial court to order person convicted of qualifying felony to submit DNA sample for storage in state DNA databank did not, under balancing test, violate defendant's Fourth Amendment right against unreasonable searches and seizures; the state had strong and legitimate interest in deterring and prosecuting recidivist criminal acts, genetic marker collection was closely related to that interest, the state also had interest in establishing identity of felons, genetic marker collection aided in that identification and in eliminating potential suspects or wrongly convicted persons, and defendant, as convicted person, had lesser privacy interest than free person. S.H.A. 730 ILCS 5/5-4-3(a)(3.5). People v. Foster, 354 Ill. App. 3d 564, 290 Ill. Dec. 421, 821 N.E.2d 733 (1st Dist. 2004).

Statute requiring DNA sampling from all persons convicted of any offense classified as a felony under State law, as applied to defendant following convictions for retail theft of merchandise valued in excess of $150 and aggravated battery, did not violate his Fourth Amendment rights; State had a legitimate interest in establishing and preserving a reliable source of identification of convicted felons in order to contribute to the creation of a more accurate criminal justice system, convicted felons had diminished expectations of privacy under Fourth Amendment, blood testing had become

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routine procedure in society, and statute provided that information obtained would be confidential and released only to peace officers and prosecutorial agencies. U.S. Const. Amend. IV; S.H.A. 720 ILCS 5/12–4(e), 16A–10(3); 730 ILCS 5/5–4–3(a–5). People v. Butler, 354 Ill. App. 3d 57, 289 Ill. Dec. 333, 819 N.E.2d 1133 (1st Dist. 2004).

Defendant's Fourth Amendment right to be free from unreasonable searches and seizures was not violated when defendant was required to submit DNA sample, which was to be included in state's DNA database, after burglary conviction; defendant's expectation of privacy was greatly reduced, and character of intrusion into defendant's privacy was minimal because procedure was noninvasive and pain free. U.S. Const. Amend. IV; West's A.I.C. 10–13–6–10, 35-43-2-1. Sharp v. State, 835 N.E.2d 1079 (Ind. Ct. App. 2005).

Search warrant was not required for law enforcement officers to reuse defendant's validly obtained DNA blood sample in subsequent unrelated prosecution for rape and burglary; state had substantial interest under Fourth Amendment in promoting use of DNA testing, not only in creating state DNA database, but also in conducting criminal investigations and exonerating the innocent, defendant's privacy was outweighed by state's interest, and defendant had no reasonable expectation of privacy in blood sample he was required by statute to provide upon his prior felony conviction. U.S. Const. Amend. IV; West's A.I.C. 10–1–9–10. Patterson v. State, 742 N.E.2d 4 (Ind. Ct. App. 2000), on reh'g, 744 N.E.2d 945 (Ind. Ct. App. 2001) .

Collection and cataloging of DNA information pursuant to statute requiring persons convicted of certain offenses to submit to collection of blood and saliva samples does not violate Fourth Amendment's protection against unreasonable searches and seizures; state's justification for DNA testing of convicted persons is accurately solving future crimes to protect citizens from dangerous criminals, and, weighing this substantial state interest against a convicted person's right to privacy, the balance must tip in favor of the state's substantial interest. U.S.C.A. Const. Amend. IV; K.S.A. 21-2511. State v. Martinez, 276 Kan. 527, 78 P.3d 769 (2003).

The act of obtaining a buccal swab from rape defendant while he was incarcerated out of state on an unrelated charge did not violate defendant's right to be free from unreasonable searches and seizures; a State's legitimate interest in creating a permanent identification record of convicted felons for law enforcement purposes outweighed the minor intrusion involved in taking prisoners' saliva samples and storing their DNA profiles. U.S.C.A. Const.Amend. 4. State v. Webb, 133 So. 3d 258 (La. Ct. App. 4th Cir. 2014).

Statute requiring persons convicted of serious crimes to provide DNA samples under the DNA Data Base and Data Bank Act did not constitute unreasonable search and seizure under totality of circumstances; as convicted felon, defendant had less expectation of privacy in personally identifiable information, extent of intrusion, namely, swab of defendant's cheek, was minor, Act provided for safeguards with respect to release of information, and State had substantial interest in deterring recidivism, solving crimes, and absolving innocent. U.S.C.A. Const.Amend. 4; M.R.S.A. Const. Art. 1, § 5; 25 M.R.S.A. § 1571 et seq. State v. Hutchinson, 2009 ME 44, 969 A.2d 923 (Me. 2009).

The DNA Collection Act, which allows collection of deoxyribonucleic acid (DNA) samples from certain convicted persons, for submission to State DNA data bank, does not violate the Fourth Amendment. (Per Cathell, J., with one Justice concurring and two Justices concurring in judgment.) U.S. Const. Amend. IV; West's Ann.Md.Code, Public Safety, § 2–501 et seq. State v. Raines, 383 Md. 1, 857 A.2d 19 (2004) (citng annotation).

Obtaining a buccal swab DNA sample from a person under arrest for a violent crime is not a violation of that person's Fourth Amendment rights. U.S.C.A. Const.Amend. 4; West's Ann.Md. Const.Declaration of Rights, Art. 26. Browne v. State, 215 Md. App. 51, 79 A.3d 410 (2013).

Collection of DNA for identification purposes pursuant to DNA-collection statute did not result in an unreasonable search and seizure when applied to a juvenile adjudicated delinquent of a misdemeanor arising from the same set of

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circumstances as a charged felony. U.S.C.A. Const.Amend. 4; M.S.A. Const. Art. 1, § 10; M.S.A. § 609.117(1)(2). In re Welfare of M.L.M., 781 N.W.2d 381 (Minn. Ct. App. 2010).

Statute requiring certain offenders to submit a DNA sample for identification purposes, as applied to those convicted of a misdemeanor arising from the same set of circumstances as a charged felony, does not violate the Fourth Amendment or the search-and-seizure provision of the state constitution. U.S.C.A. Const.Amend. 4; M.S.A. Const. Art. 1, § 10; M.S.A. § 609.117(1)(1). State v. Johnson, 777 N.W.2d 767 (Minn. Ct. App. 2010).

Statute that requires certain convicted felons to provide a biological specimen for the purpose of DNA analysis does not violate an accused's state constitutional right against unreasonable searches and seizures; degree of intrusion upon a convicted felon's privacy under the statute is minimal, and the degree to which it is needed to promote legitimate governmental interests is significant. M.S.A. Const. Art. 1, § 10; M.S.A. § 609.117. State v. Jackson, 741 N.W.2d 146 (Minn. Ct. App. 2007).

Homicide defendant waived any reasonable expectation of privacy in his DNA profile after consenting to initial withdrawal of blood, obtained pursuant to unrelated sexual assault investigation, and thus state did not exceed scope of defendant's consent when it allegedly placed his DNA profile in DNA Identification Index during homicide investigation, where there was no subsequent search or seizure of defendant's person, there was no additional use or analysis of blood specimen, but rather state only compared numerical values that constituted defendant's DNA profile with other DNA profiles in state's forensic unknown database. Const. Art. 2, § 10; MCA 44–6–102. State v. Notti, 2003 MT 170, 71 P.3d 1233 (Mont. 2003).

A DNA collection under identifying physical characteristics statutes is unquestionably a search and seizure for Fourth Amendment purposes. U.S. Const. Amend. IV; Neb.Rev.St. §§ 29–3301 to 29–3307. State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).

Statute requiring genetic marker testing for certain enumerated offenders does not violate Fourth Amendment prohibition against unreasonable searches and seizures; government's legitimate interest in creating genetic marker database to solve future crimes outweighs convicted criminal's reasonable expectation of privacy, particularly in light of minimally intrusive nature of blood draw for genetic test. U.S. Const. Amend. 4; N.R.S. 176.0913. Gaines v. State, 998 P.2d 166 (Nev. 2000).

Intrusion resulting from collection of DNA samples was substantially outweighed by state's need to accurately identify persons at scene of crime, as element of special needs analysis for determining whether DNA testing and collection under New Jersey's DNA Database and Databank Act of 1994 violated federal and state constitutional rights to be free from unreasonable searches; intrusion on privacy was minimal, in that it was akin to the intrusions a convicted person will already undergo in the taking and maintaining of fingerprints and a photograph, and Act provided for individual privacy protections. U.S. Const. Amend. IV; N.J.S.A. Const. Art. 1, par. 7; N.J.S.A. 53:1–20.17 et seq. State v. O'Hagen, 914 A.2d 267 (N.J. 2007).

New Mexico's DNA Identification Act, requiring all persons arrested for certain crimes to provide a DNA sample to be placed in Combined DNA Index System (CODIS), does not facially violate the Fourth Amendment, even though the Act places the burden of seeking expungement on the arrestee. U.S. Const. Amend. 4; N.M. Stat. Ann. § 29-16-1. State v. Blea, 2018-NMCA-052, 425 P.3d 385 (N.M. Ct. App. 2018), cert. denied, (Aug. 17, 2018).

Supporting affidavit indicating that DNA analysis of sperm taken from rape victim in another county did not exclude donor from DNA profile of donor in sexual assault case did not provide probable cause for blood draw application in connection with investigation of the sexual assault, given that only evidence connecting defendant to rape consisted of unsupported hearsay. U.S. Const. Amend. IV. People v. Afrika, 779 N.Y.S.2d 692 (App. Div. 4th Dep't 2004).

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State failed to establish probable cause that defendant charged with unlawful possession of marijuana also committed crime of second-degree criminal possession of a weapon, as required to obtain an order requiring him to submit to taking of oral swab samples for DNA testing in connection with uncharged crime; defendant's conduct in grabbing his waistband while standing in a crowd of people outside a dwelling, entering dwelling for a brief period of time, and dropping a bag of marijuana upon exiting dwelling did not link him to firearms that officers subsequent found in dwelling. U.S.C.A. Const.Amend. 4; McKinney's CPL § 240.40(2)(b)(v). People v. Washington, 929 N.Y.S.2d 432 (City Crim. Ct. 2011).

Collection of DNA specimen from state prisoner, pursuant to Ohio statute requiring convicted felons to submit to DNA collection, was not unreasonable search and seizure, since prisoner's diminished privacy rights were outweighed by state's interest in preventing, deterring and solving crimes. U.S. Const. Amend. IV; Ohio R.C. § 2901.07. Wilson v. Collins, 517 F.3d 421 (6th Cir. 2008) (applying Ohio law).

Compulsory taking of blood sample from defendant, who was convicted of felonies and sentenced to prison, for DNA identification databases pursuant to statute requiring certain offenders who have been sentenced to incarceration to provide specimen, did not violate his Fourth Amendment right against unreasonable searches. U.S. Const. Amend. IV; R.C. § 2901.07. State v. Cremeans, 160 Ohio App. 3d 1, 2005-Ohio-928, 825 N.E.2d 1124 (2d Dist. Montgomery County 2005).

Analysis of validity of DNA database statute against a claim of violation of Fourth Amendment protection against unreasonable searches and seizures involves a two–part inquiry: (1) court must determine whether statute meets the special–needs threshold, closely reviewing statute to determine the search and seizure's primary purpose and whether that purpose goes beyond normal law enforcement needs, and (2) if statute qualifies as a special need beyond normal need for law enforcement, court must evaluate the reasonableness of intrusion through a balancing analysis. U.S. Const. Amend. IV. State v. Steele, 155 Ohio App. 3d 659, 2003-Ohio-7103, 802 N.E.2d 1127 (1st Dist. Hamilton County 2003), appeal not allowed, 102 Ohio St. 3d 1458, 2004-Ohio-2569, 809 N.E.2d 32 (2004).

Warrantless, suspicionless seizure of defendant's blood as result of his incarceration for burglary, from which defendant's DNA profile was developed, placed in the state's Combined DNA Index System (CODIS), and ultimately found to match DNA evidence in murder investigation, was reasonable under Federal and State Constitutions; state's legitimate interest in collection and storage of that highly probative form of identification for use by law enforcement in detection and prevention of past and future crimes far outweighed defendant's minimal interest in freedom from brief intrusion required to collect sample of genetic material. U.S.C.A. Const.Amend. 4; Const. Art. 2, § 30; 74 Okl.St.Ann. § 150.27a. Sanchez v. State, 2009 OK CR 31, 223 P.3d 980 (Okla. Crim. App. 2009).

State statute mandating collection of blood or buccal samples for purposes of DNA profiling from all persons convicted of felonies did not violate state constitutional prohibition against unreasonable searches and seizures; statute did not necessarily deprive felony offenders of their constitutional rights by subjecting them to specific form of search and seizure as a consequence of their convictions, and statute narrowed class of persons potentially subject to it by limiting its terms to felons and persons convicted of certain other serious offenses. U.S. Const. Amend. IV; West's Or.Const. Art. 1, § 9; West's Or.Rev. Stat. Ann. § 137.076. State v. Sanders, 343 Or. 35, 163 P.3d 607 (2007).

Seizure of defendant's DNA by swabbing mucous membrane of defendant's cheek, pursuant to statute requiring defendant to provide buccal swab following his felony convictions, did not violate prohibition against unreasonable searches and seizures under Federal or State Constitutions, as procedure was no more invasive than taking of fingerprints, except that defendant had to open his mouth for procedure to be performed, and such procedure was less invasive than drawing of blood sample from defendant which required puncturing of skin. U.S. Const. Amend. IV; West's Or.Const. Art. 1, § 9; West's Or.Rev. Stat. Ann. § 137.076. State v. Brown, 212 Or. App. 164, 157 P.3d 301 (2007).

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The DNA Act did not violate juvenile's right to be free from unreasonable searches; the slight intrusion occasioned by a withdrawal of blood was outweighed by the special public interest in maintaining an identification databank. U.S. Const. Amend. IV. In re T.E.H., 2007 PA Super 193, 928 A.2d 318 (2007).

Taking of blood sample from inmate to store DNA under South Carolina's DNA Database Act was not an unreasonable search and seizure. U.S. Const. Amend. IV; S.C.Code 1976, § 23–3–670. Griffin v. Padula, 518 F. Supp. 2d 680 (D.S.C. 2007) (applying South Carolina law).

Taking of blood sample from convicted and incarcerated defendant pursuant to DNA collection statute and subsequent DNA analysis of sample were reasonable under totality of circumstances, and, thus, did not violate prohibition against unreasonable searches and seizures of Federal and State Constitutions; government's interest in correctly identifying those who have broken its laws was weighty, degree to which statute advanced this interest was significant, statute clearly and unambiguously specified who was subject to searches, such that risk of arbitrary or capricious searches was eliminated, and convicted felons such as defendant who were subject to search under statute had significantly reduced expectation of privacy. U.S. Const. Amend. IV; West's T.C.A. Const. Art. 1, § 7; West's T.C.A. § 40-35-321. State v. Scarborough, 201 S.W.3d 607 (Tenn. 2006).

Taking of blood sample from convicted and incarcerated defendant pursuant to DNA collection statute and subsequent DNA analysis of sample were reasonable under totality of circumstances, and, thus, did not violate prohibition against unreasonable searches and seizures of Federal and State Constitutions; government's interest in correctly identifying those who have broken its laws was weighty, degree to which statute advanced this interest was significant, statute clearly and unambiguously specified who was subject to searches, such that risk of arbitrary or capricious searches was eliminated, and convicted felons such as defendant who were subject to search under statute had significantly reduced expectation of privacy. U.S. Const. Amend. IV; West's T.C.A. Const. Art. 1, § 7; West's T.C.A. § 40–35–321. State v. Scarborough, 201 S.W.3d 607 (Tenn. 2006).

Statutes allowing for the retention of a parolee's DNA profile in a national DNA identification index system after the parolee's period of supervision is complete do not violate the constitutional prohibition of unreasonable searches and seizures. U.S. Const. Amend. IV; Vernon's Ann.Texas Const. Art. 1, § 9; V.T.C.A., Government Code § 411.141 et seq. (2000). Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) [citing annotation].

Texas DNA collection statute did not violate the search and seizure prohibition in State Constitution. Vernon's Ann.Texas Const. Art. 1, § 9; V.T.C.A., Government Code §§ 411.141–411.154. Johnson v. Davis, 178 S.W.3d 230 (Tex. App. Houston 14th Dist. 2005), reh'g overruled, (Nov. 3, 2005) and rule 53.7(f) motion granted, (Jan. 2, 2006).

For purposes of Fourth Amendment analysis of the legality of a blood draw ordered pursuant to statute, the primary purpose of the state DNA databank is to assist in investigation or prosecution of sex–related offenses or other offenses in which biological evidence is recovered and to exclude or identify suspects; secondary purposes are to assist in recovery or identification of human remains from a disaster or for humanitarian purposes, to assist in identification of living or deceased missing persons, and to establish a population statistics database, assist in identification research and protocol development, and assist in database or DNA laboratory quality control. U.S. Const. Amend. IV; V.T.C.A., Government Code § 411.143(a, b), (c)(1–3). In re D.L.C., 124 S.W.3d 354 (Tex. App. Fort Worth 2003).

The statutory compulsory DNA sampling of persons convicted of a violent crime did not violate the search and seizure provision of State Constitution, and because defendant's conviction was for first-degree aggravated domestic assault, which was a violent offense under the DNA-sampling statute, defendant could be compelled to submit to DNA sampling. C. 1, Art. 11; 13 V.S.A. § 1043(a)(3); 20 V.S.A. § 1933(a)(1); 20 V.S.A. § 1932(12)(I) (2004). State v. Ritter, 2008 VT 72, 956 A.2d 1141 (Vt. 2008).

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Statutory requirement that defendant arrested for unrelated violent felony submit DNA sample did not constitute impermissible, suspicionless search with respect to crime for which he was not suspect; taking of DNA sample was simply part of booking process, and therefore, there was no need for finding of individualized suspicion as prerequisite for taking sample. U.S. Const. Amend. IV; West's V.C.A. § 19.2–310.2:1. Anderson v. Com., 650 S.E.2d 702 (Va. 2007).

Statutes providing for Commonwealth's DNA data bank, which statutes include a requirement that all convicted felons submit blood samples for DNA testing, do not violate constitutional guarantee against unreasonable searches and seizures. U.S. Const. Amend. 4; Const. Art. 1, § 10; Code 1950, §§ 19.2–310.2 to 19.2–310.7. Johnson v. Com., 259 Va. 654, 529 S.E.2d 769 (2000).

Fourth Amendment rights of defendant, charged with rape and breaking and entering with intent to commit rape, were not violated when DNA testing was done on buccal sample he voluntarily provided connection with investigation for similar offense and results were used to connect defendant with present crime; defendant's continued subjective expectation of privacy in the DNA sample outside the context of the investigation of similar offense was not one that society recognized as reasonable, and thus his reasonable expectation of privacy in sample ended when he voluntarily provided to police for DNA testing and comparison, without limiting its subsequent use for the same purpose in other investigations. U.S. Const. Amend. IV. Pharr v. Com., 50 Va. App. 89, 646 S.E.2d 453 (2007).

The collection of a DNA sample from defendant after he was arrested did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures; the probable cause justifying the arrest justified a search incident to arrest. U.S. Const. Amend. IV; West's V.C.A. §§ 19.2-310.2:1, 19.2-310.3:1(A). Anderson v. Com., 48 Va. App. 704, 634 S.E.2d 372 (2006).

Statutory requirement that defendant submit a DNA sample after he was convicted of felony vehicular assault did not constitute an unconstitutional search. U.S. Const. Amend. IV; West's RCWA 43.43.754. State v. Babiker, 110 P.3d 770 (Wash. Ct. App. Div. 1 2005).

Trial court was authorized to require defendant to provide DNA samples after his conviction of two counts of assault in the second degree; such a requirement did not authorize a warrantless search without probable cause. U.S. Const. Amend. IV; West's RCWA 43.43.754. State v. Ward, 104 P.3d 670 (Wash. Ct. App. Div. 1 2004).

Statute authorizing obtaining DNA samples from convicted felons, as part of their sentences, for state DNA databank passed Fourth Amendment muster under exception to general warrant requirement, in that obtaining biological samples from convicted felons served a compelling state interest, the means of collecting such samples were minimally intrusive, and convicted felons had no reasonable expectation of privacy in such identifying markers as their fingerprints and DNA. U.S. Const. Amend. IV; West's RCWA 43.43.754(1); WAC 446–75–060. State v. Surge, 94 P.3d 345 (Wash. Ct. App. Div. 1 2004).

Statute authorizing the collection of biological samples for DNA identification purposes from those convicted of certain crimes does not violate the Fourth Amendment. (Per C. Johnson, J., with three Justices concurring and three Justices concurring in the result). U.S. Const. Amend. IV4; West's RCWA 43.43.754. State v. Surge, 156 P.3d 208 (Wash. 2007).

Statutory requirement that persons convicted of felonies submit sample of deoxyribonucleic acid (DNA) was a "search and seizure" implicating Fourth Amendment privacy rights. U.S. Const. Amend. 4; Wyo. Stat. Ann. §§ 7–19–401 et seq. Doles v. State, 994 P.2d 315 (Wyo. 1999).

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[END OF SUPPLEMENT]

§ 15. —Reduced privacy interest of prisoners

[Cumulative Supplement]

Basing their holdings on the reduced privacy interests of prisoners, the courts in the following cases expressed the view that the taking of a DNA sample from prisoners pursuant to a DNA database statute does not constitute an unreasonable search and seizure under the Fourth Amendment, despite the fact that the statutes do not require a warrant or individualized suspicion regarding the prisoners subject to the statute.

US Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), as amended, (Apr. 27, 1992) Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994) Kruger v. Erickson, 875 F. Supp. 583 (D. Minn. 1995), aff'd on other grounds, 77 F.3d 1071 (8th Cir. 1996) Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995) Ryncarz v. Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993) Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), reh'g denied, (Jan. 17, 1997) Schlicher v. (NFN) Peters, I & I, 103 F.3d 940 (10th Cir. 1996) Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), cert. denied, 119 S. Ct. 520, 142 L. Ed. 2d 431 (U.S. 1998) Ill People v. Calahan, 272 Ill. App. 3d 293, 208 Ill. Dec. 532, 649 N.E.2d 588 (1st Dist. 1995) (under Fourth Amendment and its state constitutional analogue, S.H.A. Const. Art. 1, § 6) Mass Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 76 A.L.R.5th 703(1999), petition for cert. filed, 68 U.S.L.W. 3153 (U.S. Aug. 20, 1999) Mo Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997) Wyo Doles v. State, 994 P.2d 315 (Wyo. 1999) Expressly differentiating between the privacy rights of prisoners and those of "free persons," the court, in Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995), held that ORS 137.076, requiring persons convicted of murder, a sexual offense, or the conspiracy or attempt to commit a sexual offense to submit a blood sample to the state department of corrections to be added to its DNA data bank, does not authorize an unconstitutional search and seizure under the Fourth Amendment. Because the statute authorizes only a minimal intrusion into the prisoners' Fourth Amendment interests, the court reasoned, determining its constitutionality requires a balancing of the gravity of the public interest served by the creation of the DNA data bank, the degree to which the data bank would advance the public interest, and the severity of the resulting interference with individual liberty. The statute, the court said, applying only to certain classes of felons, bears a rational relationship to the public's interest in identifying and prosecuting murderers and sexual offenders. The defendants, the court noted, produced uncontroverted evidence documenting the high rates of recidivism among certain types of murderers and sexual offenders. Moreover, the court noted, investigations of murders and sexual offenses are more likely to yield the types of evidence from which DNA information can be derived, such as blood, semen, saliva, and hair evidence, than property crimes or other offenses committed without substantial personal contact. Taken together, the court concluded, these facts suggest that a data bank of DNA information derived from the blood of convicted murderers and sexual offenders will help the state to identify and prosecute the perpetrators of future offenses. The creation of such a DNA data bank also advances the overwhelming public interest in prosecuting crimes accurately, the court emphasized, as DNA evidence can exculpate an accused just as effectively as it can inculpate him. The absence of any individualized suspicion that persons subject to blood sampling have committed criminal offenses other than their original offenses of conviction does not render the statute unconstitutional, the court declared; rather,

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the court continued, the evenhandedness of the statute contributes to its reasonableness. Since every person convicted of one of the predicate offenses listed in the statute is required to submit a blood sample for analysis unless a court determines that drawing a sample would create a substantial and unreasonable risk to the person's health, the court declared, prison officials retain no discretion to choose which persons must submit blood samples. By ensuring that blood extractions will not be ordered randomly or for illegitimate purposes, the court reasoned, the statute fulfills a principal purpose of the warrant requirement. Taking into account all of these factors discussed, the court declared—the reduced expectations of privacy held by persons convicted of one of the felonies to which the statute applies, the blood extractions' relatively minimal intrusion into these persons' same privacy interests, the public's incontestable interest in preventing recidivism and identifying and prosecuting murderers and sexual offenders, and the likelihood that a DNA data bank will advance this interest—the court concluded that the statute is reasonable and therefore constitutional under the Fourth Amendment. As noted in § 5 and § 8, respectively, the court also held that the statute does not violate the federal constitutional prohibition of ex post facto laws, even though the statute applies to persons convicted before the statute's enactment, and the statute's failure to provide for a hearing does not violate the requirements of procedural due process.

Declaring that the question involves convicted persons having a low expectation of privacy in their identity, and a new, and validated, technology that can, by means of a properly performed minimally invasive test, obtain and preserve an extremely accurate record of identification, the court, in Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 76 A.L.R.5th 703(1999), petition for cert. filed, 68 U.S.L.W. 3153 (U.S. Aug. 20, 1999), held that M.G.L.A. c. 22E, § 1 et seq., the state's DNA database statutes, do not authorize an unreasonable search and seizure, in violation of either the Fourth Amendment or its state constitutional analogue, M.G.L.A. Const. Pt. 1, Art. 14, even though the statute requires neither a warrant nor individualized suspicion. Recognizing that the maintenance of fingerprint, photograph, and arrest records serves an important law enforcement function, the court said that the state has an established and indisputable interest in preserving a permanent identification record of convicted persons for resolving past and future crimes and uses fingerprints, and now will use DNA identification, for these purposes. Observing that the obtaining of a very small amount of blood by pin prick constitutes only a minimally intrusive search, the court reasoned that the balance of interests clearly weighs in favor of the use of DNA in accordance with the statute to create a record of identification. Emphasizing that it was not necessarily relying on any supposition that convicted persons are more likely to be recidivists than others, nor on the penological interests within a prison, the court stated that it did rely upon the specific relevance of DNA evidence to prove serious crimes. Noting that the United States Supreme Court has never held that there must be particularized probable cause or suspicion to justify gathering and retaining a permanent record of a convicted person's identity, the court said that, if the opposite were true, suspects' fingerprints and photographs would have to be discarded after their initial evidentiary and identification purposes had been served. The need for DNA information, the court declared, is like the need for fingerprints and photographs. As noted in § 21, the court also held that it was not necessary, before the statute could take effect, for specific regulations to be promulgated to spell out when, and how, reasonable force could be used to acquire DNA samples from nonconsenting persons.

Examining the question under the lower expectation of privacy granted to a prisoner, the court, in Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997), held that V.A.M.S. § 650.055, requiring certain prisoners to submit a blood sample for the state's DNA database, does not authorize an unreasonable search and seizure under the Fourth Amendment, even though neither a warrant nor individualized suspicion are required under the statute. Observing that the United States Supreme Court has rejected the requirement of individualized suspicion under the Fourth Amendment in the context of those persons whose liberty interests have been reduced by their conviction, the court explained that the identity of a person convicted of a crime has become a matter of state interest, and such a person has lost any legitimate expectation of privacy in the identifying information derived from the blood sampling. The blood samples drawn under § 650.055 are used, the court observed, to create a DNA profiling system to assist in the prosecution of violent offenders and sex offenders. There is, the court noted, uncontroverted evidence documenting high rates of recidivism among certain types of murderers and sexual offenders, and also evidence showing that investigations of murders and sexual offenses are more likely to yield the types

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of evidence from which DNA information can be derived. Additionally, the court continued, a DNA data bank advances the public interest in prosecuting crimes accurately because DNA evidence can acquit an accused just as effectively as it can convict. Therefore, the court declared, § 650.055, which applies only to a limited class of felons, bears a rational relationship to the public's interest in identifying and prosecuting dangerous felons and therefore constitutes a valid law enforcement purpose. Because of the reduced expectation of privacy held by prisoners, the minimal intrusion upon a prisoner's Fourth Amendment interests caused by the blood test, the significant interest of the public in preventing recidivism and accurately determining guilt or innocence in cases of violent and sexual offenses, and the likelihood that the DNA profiling system will advance these interests, the court concluded that the drawing of a blood sample under § 650.055 is reasonable and therefore constitutional under the Fourth Amendment. As noted in § 6[c], § 10, § 11, § 13, and § 20[a], respectively, the court also held that § 650.055 did not violate the ex post facto clause or the prisoners' right to privacy or right against self–incrimination, or deny prisoners their substantive due process, and applied to a prisoner convicted of a predicate offense under a prior version of the statute defining that offense.

Relying upon the rationale of Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995), above, that once a person is convicted of a felony, the person's identity has become a matter of state interest and therefore the person loses any legitimate expectation of privacy in the identifying information derived from blood sampling, the court in Doles v. State, 994 P.2d 315 (Wyo. 1999), held that Wyoming's DNA database identification system, Wyo. Stat. Ann. § 7–19–401 through 7–19–406, did not constitute an unreasonable search in violation of the Fourth Amendment. Based on its decision that convicted felons have diminished privacy rights, the court found that the Act's purpose in collecting DNA identification information is to advance a legitimate state interest in criminal law enforcement, and although collecting DNA samples is a search and seizure, the court was persuaded that the Act's mandated DNA collection from convicted felons is reasonable and does not violate the Fourth Amendment. The court rejected the "special needs" approach, discussed in § 16, in analyzing the statute.

comment

Although the defendant in Doles v. State, 994 P.2d 315 (Wyo. 1999), claimed that Wyo. Const. art. I, § 4 provides greater protection than the Federal Constitution on this issue, maintaining that a warrant supported by probable cause is needed to extract a DNA sample from a convicted felon, based on the textual differences between the state and federal provisions to support interpreting the provisions differently, the court, based upon the lack of proper briefing and argument, declined to independently analyze the protections offered by the state constitution for the issue asserted.

CUMULATIVE SUPPLEMENT

Cases:

The court in Nicholas v. Goord, 2004 WL 1432533 (S.D. N.Y. 2004), aff'd, 430 F.3d 652 (2d Cir. 2005), cert. denied, 127 S. Ct. 384, 166 L. Ed. 2d 270 (U.S. 2006), which involved a Fourth Amendment challenge to a New York State statute requiring certain convicted felons to submit samples of Deoxyribonucleic Acid (DNA) for inclusion in a DNA database, and the matter was submitted to a magistrate judge who recommended dismissal of the plaintiffs' complaint in Nicholas v. Goord, 2003 WL 256774 (S.D. N.Y. 2003), § 16, and the plaintiffs filed objections arguing that the Magistrate Judge misinterpreted and misapplied relevant Supreme Court precedent regarding the constitutionality of warrantless and suspicionless searches, having reviewed de novo the entire record and report, agreed with the Magistrate Judge's conclusion though not his reasoning. In holding the DNA statute constitutional and granting defendants' motion to dismiss, the Magistrate Judge first held that the taking of the DNA constituted a Fourth Amendment search. Then applying the special needs doctrine, he analyzed whether the search was reasonable. Finding that the statute served a special need, the Magistrate Judge balanced the interests at stake and found the search to be reasonable. The court disagreed with using the special needs test to analyze the statute's constitutionality. The Magistrate Judge applied the

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special needs test even going so far as to hold that City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000), and Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), —two of the Supreme Court's latest special needs cases—requires it. Said the Magistrate Judge: "Edmond and Ferguson may be read to require that DNA indexing statutes must be analyzed solely in accordance with the 'special needs' doctrine." Thus, "apart from cases involving some level of individualized suspicion" there is "no room for a classic Fourth Amendment 'balancing analysis." The court disagreed, noting that it is dubious logic to suggest that by applying the special needs test to the particular searches in Edmond and Ferguson, the Supreme Court implied that it should be used to analyze all searches, and this is particularly true where, as here, we are dealing with convicted felons currently serving out their terms. The court noted at best Edmond and Ferguson can be read to suggest that with respect to collecting DNA samples from the general population, one might have to show some special need. As to prisoners who have little expectation of privacy, however, there is no reason why such a showing is required. The court thus found that this case should be analyzed using a simple balancing test. Thus, attention had to turn to whether the search was reasonable. The test of reasonableness requires a balancing of the individual's Fourth Amendment interest against the government's interest in conducting the search. Although the test is incapable of precise definition or application, some of the factors to consider are: the strength of plaintiff's privacy interest; the nature and scope of the intrusion; and the government interest at stake. The court noted that the plaintiff's interest in their DNA is minimal, as typing for DNA is similar to fingerprinting; in both cases, the information derived is substantially the same, i.e., an identifying marker unique to that individual. In light of this, the plaintiffs could hardly claim to have a significantly greater interest in their DNA. Further, the scope of the intrusion is minimal, as typing for DNA reveals limited amounts of information. In fact, New York's DNA law requires that analysis be done solely on those markers that have identification purposes. Thus, typing DNA provides "no information of any apparent utility to law enforcement other then identification; nor is any additional usage permitted by the statute." Neither does the fact that the gathering of DNA may require drawing blood alter the analysis. Inmates are already required to undergo physical examinations, including blood tests, so that prisons can attend to their medical requirements. Finally, compared to the nature and the invasion of privacy, there is a significant governmental interest. That interest is in having information readily available to aid criminal investigations, as DNA can be used as a powerful tool in solving both past and future crimes. Given the rate of recidivism amongst felons (particularly violent felons), the state certainly has a significant interest in maintaining a DNA database that sufficiently outweighs whatever intrusion of privacy there is such that the taking blood and analyzing it for DNA constitutes a reasonable search. The defendants' motion to dismiss was thus granted.

Extraction and storage of inmate's DNA pursuant to Pennsylvania's DNA Detection of Sexual and Violent Offenders Act did not violate the Fourth Amendment; the use of the DNA was largely limited to assisting law enforcement in the identification and detection of individuals in criminal investigations and prosecutions, and incarcerated offenders could not reasonably expect to keep information bearing on their physical identity from the government. U.S.C.A. Const.Amend. 4; 44 Pa.C.S.A. §§ 2301–2336. Johnson v. Ogershok, 134 Fed. Appx. 535 (3d Cir. 2005).

California DNA Act's requirement that prison inmates provide DNA samples, and allowing reasonable force to obtain a DNA sample if the subject refused testing, did not violate the Fourth Amendment; DNA testing under the Act was limited to the collection of identifying information, having been convicted and incarcerated an inmate had no legitimate expectation of privacy in the identifying information derived from his DNA, and state had an interest in adding convicted felons to its DNA data bank. U.S.C.A. Const.Amend. 4; West's Ann.Cal.Penal Code § 295 et seq. Hamilton v. Brown, 630 F.3d 889 (9th Cir. 2011).

Georgia's legitimate interest in creating a permanent identification record of convicted felons for law enforcement purposes outweighed the minor intrusion involved in taking prisoners' saliva samples and storing their DNA profiles, given prisoners' reduced expectation of privacy in their identities, and therefore, Georgia statute requiring DNA sampling of all convicted felons did not violate the search and seizure provisions of the United States and Georgia Constitutions. U.S.C.A. Const.Amend. 4; U.S.C.A. Const. Art. 1, § 1; West's Ga.Code Ann. § 24–4–60. Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005).

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Comment

The United States Supreme Court has denied certiorari in the Eleventh Circuit case of Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005), cert. denied, 126 S. Ct. 352 (U.S. 2005), holding that a Georgia statute requiring DNA sampling of all incarcerated felons did not violate the search and seizure provisions of the federal and state constitutions. The Eleventh Circuit held that Georgia's legitimate interest in creating a permanent identification record of convicted felons for law enforcement purposes outweighed the minor intrusion involved in taking prisoners' saliva samples and storing their DNA profiles, given the prisoners' reduced expectation of privacy in their identities.

Under totality of circumstances, government's legitimate interest in creating permanent identification record of convicted felons for law enforcement purposes outweighed minor intrusion involved in collecting DNA samples from prisoners, given prisoners' reduced expectation of privacy in their identities, and thus, statute requiring collection of DNA samples from convicted felons did not violate Fourth Amendment rights of defendant convicted of illegal reentry following deportation. U.S.C.A. Const.Amend. 4; DNA Analysis Backlog Elimination Act of 2000, § 3, 42 U.S.C.A. § 14135a. U.S. v. Rodriguez-Benavides, 148 Fed. Appx. 813 (11th Cir. 2005), petition for cert. filed (U.S. Nov. 28, 2005).

California's DNA and Forensic Identification Data Base and Data Bank Act (DNA Act), which required law enforcement officers to collect DNA samples from all adults arrested for felonies, did not violate arrestees' Fourth Amendment rights; given an arrestee's diminished privacy interests, the de minimis nature of the physical intrusion entailed in the taking of a buccal swab, the carefully circumscribed scope of the DNA information being extracted, the stringent limits on the manner in which that information could be used, and the well-established law enforcement interest in obtaining arrestees' identifying information, and further, to deter future criminal acts and to exculpate innocent arrestees, the balance of interests tilted strongly in favor of upholding the constitutionality of the Act. U.S.C.A. Const.Amend. 4; West's Ann.Cal.Penal Code § 296(a)(2)(C). Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) (applying California law).

Amendment to DNA and Forensic Identification Database and Data Bank Act, which required all felons to submit to DNA testing for purposes of maintaining a DNA data bank, did not violate defendant's Fourth Amendment or privacy rights, after defendant pled guilty to felony driving under the influence of alcohol; legitimate governmental interest in maintaining a permanent, reliable record of identification of all convicted felons was unassailable under amended version of statute, and outweighed minor intrusion involved in taking prisoners' saliva or blood samples and storing their DNA profiles, given prisoners' reduced expectation of privacy in their identities. U.S.C.A. Const.Amend. 4; West's Ann.Cal. Const. Art. 1, § 13; West's Ann.Cal.Penal Code § 296(a)(1). People v. Travis, 139 Cal. App. 4th 1271, 44 Cal. Rptr. 3d 177 (1st Dist. 2006), review denied, (Sept. 20, 2006) [citing annotation].

Statute requiring collection of blood and saliva samples from persons convicted of specified crimes did not violate Fourth Amendment right of defendant later identified through DNA analysis as suspect of forcible oral copulation and forcible rape; when search and seizure took place, defendant was not member of general population—someone who was generally free to go about his or her business, unsubjected to governmental interference—but instead was imprisoned following his conviction for serious offense. U.S.C.A. Const.Amend. 4; West's Ann.Cal.Penal Code § 295 et seq.; § 290.2 (Repealed). People v. Johnson, 139 Cal. App. 4th 1135, 43 Cal. Rptr. 3d 587 (5th Dist. 2006).

The court in People v. Quezada, 2004 WL 2914844 (Cal. App. 6th Dist. 2004), unpublished/noncitable, (Dec. 17, 2004) and review denied, (Mar. 2, 2005), reaffirmed its holding in People v. Adams, 115 Cal. App. 4th 243, 9 Cal. Rptr. 3d 170, 04 (6th Dist. 2004), as modified, (Feb. 5, 2004) and review denied, (Apr. 14, 2004) and cert. denied, 125 S. Ct. 279, 160 L. Ed. 2d 67 (U.S. 2004), that Cal. Penal Code § 296, providing that the convicted defendant provide blood and saliva samples for DNA testing, is constitutional. The defendant claimed that the statute violated his constitutional Fourth

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Amendment right to be free from unreasonable government intrusion. As the defendant acknowledged, the court had recently upheld section 296 against an identical challenge in Adams. The defendant nevertheless urged that the holding in Adams rests on a false premise. In particular, the defendant took issue with the court's determination not to apply the special needs doctrine in reliance on the proposition that "convicted criminals do not enjoy the same expectation of privacy that non-convicts do." Rejecting the defendant's argument, the court reaffirmed both its analysis and its conclusion in Adams. The court noted, as it stated in Adams: "The individuals who are required to give samples have been found guilty beyond a reasonable doubt of serious crimes …, either by a trier of fact or by their own admission. One result of their crimes is that society has a vastly increased interest in their identities." For that reason and others, the court found itself in agreement with an overwhelming body of California law that holds "(1) nonconsensual extraction of biological samples for identification purposes does implicate constitutional interests; (2) those convicted of serious crimes have a diminished expectation of privacy and the intrusions authorized by the Act are minimal; and (3) the Act serves compelling governmental interests." In doing so, the court noted that it had joined state courts across the nation that have "uniformly expressed the view" that such statutes do not run afoul of the Fourth Amendment's proscription against unreasonable searches. The court thus reaffirmed its conclusion that section 296 does not violate the Fourth Amendment.

The court in People v. Penkova, 2004 WL 2712418 (Cal. App. 4th Dist. 2004), unpublished/noncitable, (Nov. 30, 2004) and review denied, (Feb. 16, 2005), rejected the defendant's assertion that the collection of blood and saliva samples constitutes a search under the Fourth Amendment and that accordingly, the California DNA and Forensic Identification Data Base and Data Bank Act of 1998 (the Act) is unconstitutional because it permits the collection of blood and saliva samples from criminals who have been convicted of certain offenses without any finding of reasonable suspicion. The court agreed with existing authorities that (1) nonconsensual extraction of biological samples for identification purposes does implicate constitutional interests; (2) those convicted of serious crimes have a diminished expectation of privacy [which specifically extends to the person's identity and the intrusions authorized by the Act are minimal; and (3) the Act serves compelling governmental interests.

Compulsory extraction and inclusion of a convicted felon's DNA in state and national databases, pursuant Unified Code of Corrections, does not violate the Fourth Amendment right to be free from unreasonable searches and seizures; a convicted felon's privacy rights are substantially reduced due to his status as a convicted felon, and the state's interest in effective crime investigations and prevention, as advanced by the Code, outweighs a felon's privacy interest. U.S.C.A. Const.Amend. 4;S.H.A. 730 ILCS 5/5–4–3. People v. Csaszar, 314 Ill. Dec. 345, 874 N.E.2d 255 (App. Ct. 1st Dist. 2007).

Statute permitting state to require defendant convicted of concealment of a homicidal death to submit blood sample for genetic marker testing did not violate defendant's Fourth Amendment rights, where state's interest in effective crime investigations and prevention outweighed defendant's privacy interests as convicted felon. U.S.C.A. Const.Amend. 4;S.H.A. 730 ILCS 5/5–4–3. People v. Salinas, 302 Ill. Dec. 325, 848 N.E.2d 624 (App. Ct. 2d Dist. 2006).

Statute requiring extraction and perpetual storing of DNA for felony conviction for possession of a substance containing cocaine did not violate defendant's right to be free from unreasonable searches and seizures; State had strong interest in deterring and prosecuting recidivist criminal acts, State had interest in establishing identity of felons, convicted felons had diminished privacy rights, and drawing blood to gather DNA involved only minimal intrusion and did not risk health or safety of individual. U.S.C.A. Const.Amend. 4; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4–3(a)(3.5). People v. Hunter, 294 Ill. Dec. 867, 831 N.E.2d 1192 (App. Ct. 4th Dist. 2005).

Section of the Unified Code of Corrections which allowed for the extraction and storage of the DNA of convicted felons did not violate the Fourth Amendment; intrusion on defendant's diminished privacy rights in providing a DNA sample under the Code was outweighed by the State's interest in preventing recidivism, identifying offenders, and solving past and future crimes. U.S.C.A. Const.Amend. 4;S.H.A. 730 ILCS 5/5–4–3. People v. Redmond, 293 Ill. Dec. 708, 828 N.E.2d 1206 (App. Ct. 1st Dist. 2005), reh'g denied, (May 26, 2005).

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Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under State law did not violate Fourth Amendment under the "balance test"; genetic marker collection was closely related to State's interest in deterring and prosecuting recidivist criminal acts, State had an interest in establishing the identity of felons where traditional means of doing so were beginning to prove inadequate and inconclusive, and genetic marker collection aided State not only in identifying repeat offenders who attempt to conceal or alter their identity, but also in eliminating potential suspects or those wrongly convicted. U.S.C.A. Const.Amend. 4; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4–3(a–5). People v. Hall, 287 Ill. Dec. 736 (App. Ct. 1st Dist. 2004), reh'g denied, (Oct. 21, 2004).

Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under state law does not violate Fourth Amendment; public has significant interest in preventing recidivism, identify of person convicted of crime is matter of state interest, defendants convicted of felonies lose any legitimate expectation of privacy in identifying information derived from bodily sampling used for law enforcement and deterrent purposes, and physical intrusion caused by submission of blood, saliva, or tissue sample for DNA testing is slight and virtually free from risk. U.S.C.A. Const. Amend. IV. People v. Garvin, 285 Ill. Dec. 953, 812 N.E.2d 773 (App. Ct. 2d Dist. 2004).

Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under State law was not unconstitutional on its face or as applied to defendant convicted of possession of a controlled substance with intent to deliver. S.H.A. 730 ILCS 5/5–4–3. People v. Beachem, 871 N.E.2d 805 (Ill. App. Ct. 1st Dist. 2007).

Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under state law was not unconstitutional on its face or as applied to defendant convicted of drug offenses; special needs of the state to absolve innocents, identify the guilty, and deter recidivism outweighed the privacy interests of a defendant convicted of felony offense both because of the minimal intrusion presented by a blood draw and because of the reduced privacy expectations of convicted felons. U.S.C.A. Const.Amend. 4;S.H.A. 730 ILCS 5/5–4–3(a–5). People v. Gorosteata, 870 N.E.2d 936 (Ill. App. Ct. 1st Dist. 2007).

Compulsory taking of defendant's DNA sample with buccal swab, which was specialized applicator with sponge or foam tip that is rubbed on inside of cheek to collect epithelial cells, was reasonable search under Fourth Amendment; defendant, who had just been discharged from probation and sentenced to serve suspended portion of his sentence because he violated probation, had greatly reduced expectation of privacy, character of intrusion was minimal, and state's interest in creating DNA database was substantial. U.S. Const. Amend. IV; West's A.I.C. 10–13–6–10. Balding v. State, 812 N.E.2d 169 (Ind. Ct. App. 2004).

Defendant's expectation of privacy in his DNA, which state had lawfully obtained through a saliva sample for use in a home invasion case, was not objectively reasonable, and thus state could use DNA sample to compare it to material found at a separate rape and kidnapping scene without obtaining a separate search warrant. U.S.C.A. Const.Amend. 4; K.S.A. Const.Bill of Rights, § 15. State v. Glynn, 166 P.3d 1075 (Kan. Ct. App. 2007).

A convicted person loses some rights to personal privacy that would otherwise be protected under the Fourth Amendment, such as his interest in his genetic identity as determined by DNA testing, even when the state's interest does not concern administration of penal or detention facilities. U.S. Const. Amend. 4. Gaines v. State, 998 P.2d 166 (Nev. 2000).

For purposes of constitutional search and seizure analysis, offenders lacked post-sentence privacy expectation in preventing testing of pre-acquired DNA samples or use of DNA profiles in connection with law enforcement agency's official investigation of a crime, pursuant to DNA Database and Databank Act, where statute permitted only such testing as was necessary to analyze and type offenders' genetic markers, extracting numerical values indicative of nothing other than offender's identity, and prohibited access to profiles for purposes unrelated to criminal investigations without

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court order. U.S.C.A. Const.Amend. 4; N.J.S.A. Const. Art. 1, par. 7; N.J.S.A. 53:1–20.17 to 53:1–20.28. A.A. ex rel. B.A. v. Attorney General of New Jersey, 384 N.J. Super. 67, 894 A.2d 31 (App. Div. 2006), certification granted (N.J. Mar. 30, 2006).

DNA Database and Databank Act, which required certain juveniles who had been adjudicated delinquent to provide DNA sample, did not violate constitutional prohibition against unreasonable searches and seizures under Federal and State Constitutions; obtaining DNA samples under Act was a minimal intrusion that was substantially outweighed by state's need to deter and detect recidivist offenders and public's interest in promptly identifying and accurately prosecuting actual perpetrators of crimes, convicted offenders had substantially diminished expectation of privacy in his identity, and Act provided for significant privacy protections. U.S.C.A. Const.Amend. 4; N.J.S.A. Const. Art. 1, par. 7; N.J.S.A. 53:1-20:20(h). State ex rel. L.R., 382 N.J. Super. 605, 890 A.2d 343 (App. Div. 2006).

Statute permitting state to collect DNA specimens from offenders convicted of certain offenses without any individualized suspicion satisfied special–needs threshold and did not constitute an unreasonable search and seizure under the Fourth Amendment; primary purpose of search went beyond needs of ordinary law enforcement in seeking to assist law enforcement agencies in solving future crimes that had not yet been committed, all persons convicted of the qualifying offenses had to provide DNA samples, prisoners and probationers have diminished expectations of privacy, and taking of blood sample for inclusion in DNA database was akin to taking of fingerprints and did not unduly infringe on an offender's privacy interests. U.S.C.A. Const. Amend. 4; R.C. § 2901.07. State v. Steele, 155 Ohio App. 3d 659, 2003-Ohio-7103, 802 N.E.2d 1127 (1st Dist. Hamilton County 2003).

Collection of blood from prison inmate pursuant to statute authorizing collection of DNA for purposes of testing and inclusion in the state's DNA database did not violate inmate's right of privacy; because of his incarceration, inmate had diminished privacy interests, and once individual was convicted on one of the felony offenses included as a predicate offense under the statute, his identity became a matter of state interest and he lost any legitimate expectation of privacy in the identifying information derived from the blood sample. V.T.C.A., Government Code §§ 411.141–411.154. Johnson v. Davis, 178 S.W.3d 230 (Tex. App. Houston 14th Dist. 2005), reh'g overruled, (Nov. 3, 2005) and rule 53.7(f) motion granted, (Jan. 2, 2006).

The Supreme Court of Virginia, in Johnson v. Com., 259 Va. 654, 529 S.E.2d 769 (2000), in affirming the capital murder conviction and death sentence imposed on the defendant, held that the taking of a DNA sample from a prisoner pursuant to the Virginia DNA database statute did not constitute an unreasonable search and seizure under the Fourth Amendment. The commonwealth's forensic scientist's search of the Virginia DNA data bank revealed that one DNA profile contained in the data bank was consistent with the DNA profile that she had obtained from the crime scene evidence, and this matching DNA profile belonged to the defendant who was incarcerated in a state correctional facility. The defendant argued that the statutes providing for the commonwealth's DNA data bank, Va. Code Ann. §§ 19.2-310.2—19.2-310.7, which include a requirement that all convicted felons submit blood samples for DNA testing, violate the Fourth Amendment guarantee against unreasonable searches and seizures and the parallel provision of the Virginia Constitution. Although the court had not considered previously the issue, the court noted that the United States Court of Appeals for the Fourth Circuit addressed the constitutionality of Virginia's DNA statutes. In Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), as amended, (Apr. 27, 1992) and cert. denied, 506 U.S. 977, 113 S. Ct. 472, 121 L. Ed. 2d 378 (1992), discussed in §§ 6[a], 6[c], and noted in this section, the federal court concluded that the procurement of a blood sample for DNA analysis from a convicted felon under Va. Code Ann. § 19.2-310.2 does not violate the Fourth Amendment guarantee against unreasonable searches and seizures, the court holding that in the case of convicted felons who are in the custody of the Commonwealth, the minor intrusion caused by the taking of a blood sample is outweighed by Virginia's interest in determining inmates' identification characteristics specific to the person for improved law enforcement. The Supreme Court of Virginia agreed with this conclusion and held that it is equally applicable to the guarantee against unreasonable searches and seizures set forth in Va. Const. art. I, § 10.

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Statute authorizing obtaining DNA samples from convicted felons, as part of their sentences, for state DNA databank passed Fourth Amendment muster under exception to general warrant requirement, in that obtaining biological samples from convicted felons served a compelling state interest, the means of collecting such samples were minimally intrusive, and convicted felons had no reasonable expectation of privacy in such identifying markers as their fingerprints and DNA. U.S.C.A. Const. Amend. IV; West's RCWA 43.43.754(1); WAC 446-75-060. State v. Surge, 122 Wash. App. 448, 94 P.3d 345 (Div. 1 2004), review granted, 111 P.3d 1190 (Wash. 2005).

[Top of Section]

[END OF SUPPLEMENT]

§ 16. —Special needs of government

[Cumulative Supplement]

Applying the "special needs" exception to traditional Fourth Amendment analysis, the courts in the following cases expressed the view that a state DNA database statute, in requiring certain persons to submit a DNA sample in the absence of a warrant or individualized suspicion, does not authorize an unreasonable search and seizure in violation of that amendment.

comment

The "special needs" doctrine generally is traced to Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639, 4 I.E.R. Cas. (BNA) 224, 130 L.R.R.M. (BNA) 2857, 13 O.S.H. Cas. (BNA) 2065, 49 Empl. Prac. Dec. (CCH) ¶ 38791, 111 Lab. Cas. (CCH) ¶ 11001, 1989 O.S.H. Dec. (CCH) ¶ 28476 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685, 4 I.E.R. Cas. (BNA) 246, 49 Empl. Prac. Dec. (CCH) ¶ 38792, 1989 O.S.H. Dec. (CCH) ¶ 28589 (1989), which held (in the context of mandatory drug testing) that, where physical tests are conducted to satisfy a governmental interest presenting a "special need" beyond normal law enforcement, a departure from the usual warrant and probable–cause requirements of the Fourth Amendment is permissible, and 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.

The court in Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999), held that the Connecticut statute, Conn. Gen. Stat. § 54–102g, requiring convicted sex offenders incarcerated on the statute's effective date to submit a blood sample for analysis and inclusion in the state's DNA data bank, did not violate the Fourth Amendment's mandate against unreasonable searches, inasmuch as the government's significant interest in special needs beyond law enforcement, in the form of solving past and future crimes and deterring crimes, outweighed the inmates' interest in avoiding the intrusion of having a blood sample drawn. The court noted that the "special needs" analysis provides a more compelling rationale for upholding the DNA statute's constitutionality than do the opinions upholding such statutes based upon the reduced privacy of prisoners, which are collected in § 15. Since, according to the court, the cases in which the Supreme Court has concluded that prisoners forfeit their Fourth Amendment rights upon incarceration deal with searches of their cells or their persons for reasons of safety and orderly administration of prison facilities, concerns not implicated in obtaining blood samples for a DNA database, while the court joined the federal circuits that have upheld the constitutionality of similar statutes, it departed from the rationale adopted by those circuits and premised its holding upon the "special needs" exception. The court thus approved the rationale of State v. Olivas, 122 Wash. 2d 73, 856 P.2d 1076 (1993), discussed below. The court, as discussed in § 4[b], also held that Conn. Gen. Stat. § 54–102g did not violate the federal equal protection clause.

Declaring that, although the state's DNA testing of inmates is ultimately for a law enforcement goal—the testing seems to fit within the "special needs" analysis the United States Supreme Court has developed for drug testing and searches of

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probationers' homes, since the testing is not undertaken for the investigation of a specific crime—the court, in Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis. 1996), held that, under a "special needs" analysis, Wisconsin's DNA database statute, W.S.A. 165.76, 165.77, does not authorize an unreasonable search and seizure in violation of the Fourth Amendment, even though the statute requires neither a warrant nor individualized suspicion. The state, the court observed, wishes to obtain information that can be used to investigate and prosecute sexual assault crimes accurately and quickly, and it has confined the collecting of such data to those offenders that have been shown to have a relatively high likelihood of recidivism. Given the minimal nature of the intrusion that a cheek swab entails, the limited privacy interest that an inmate convicted of sexual assault retains in personal identifying information, and the government's interest in identifying and prosecuting sexual offenders promptly and accurately, the court concluded that the DNA collection process does not violate prisoners' Fourth Amendment rights. The court emphasized that the statute and its implementing regulations protect against the potential for arbitrariness in governmental searches that the Fourth Amendment is intended to prevent. The standardized nature of the DNA collection process, the court said, gives minimal discretion to the persons administering it, leaving little for a neutral magistrate to evaluate for reasonableness.

Declaring that, in some limited situations, "special needs" beyond normal law enforcement needs may make the warrant and probable cause requirement impracticable and permit a determination of Fourth Amendment reasonableness based upon a balancing of governmental and privacy interests, the court, in Dial v. Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999), held that Pennsylvania's DNA database statute, 35 P.S. §§ 7651.101– 7651.1102, does not authorize an unreasonable search and seizure in violation of the Fourth Amendment, even though the statute requires neither a warrant nor individualized suspicion. In the context of a search of a convicted inmate, the court reasoned, the reasonableness of the search may be established even absent a showing of probable cause or reasonable suspicion. The statute, the court declared, targets a population of convicted inmates with reduced privacy expectations to a relatively minimal intrusion in furtherance of the Commonwealth's need to maintain an identification system to deter recidivism. The slight intrusion occasioned by the withdrawal of blood, the court said, is outweighed by the special public interest in maintaining an identification data bank. The program established by the statute, the court said, is, on its face, evenhanded in its application and reasonable in the manner in which it is conducted. As noted in § 6[b] and § 12[b], respectively, the court also held that the statute did not violate the prohibition of ex post facto legislation or the principle of separation of powers.

Applying the "special need" doctrine, which it found preferable to the "prisoners' reduced expectation of privacy" doctrine because the former doctrine does not diminish privacy protection, the court, in State v. Olivas, 122 Wash. 2d 73, 856 P.2d 1076 (1993), held that the state DNA database statute, West's RCWA 43.43.754, does not authorize an unreasonable search and seizure under the Fourth Amendment, even though the statute, in requiring certain classes of prisoners to submit a DNA sample, does not require either a warrant or individualized suspicion. The court declared that establishing a DNA database would be a deterrent to recidivist acts and therefore the purpose of the database constitutes a "special need" and is not for "normal" law enforcement. As noted in § 4[b] and § 17, respectively, the court also held that the statute did not violate the requirements of equal protection and that the statute was not unconstitutionally vague.

CUMULATIVE SUPPLEMENT

Cases:

New York's DNA-database statute, which required certain classes of convicted felons to provide DNA samples to be maintained in state database, was justified under Fourth Amendment under "special needs" exception, in that statute's primary purpose, of assisting in solving crimes should investigation of such crimes permit resort to DNA testing, was distinct from ordinary crime-detection activities associated with normal law-enforcement concerns, and New York's interest in keeping records of identifying information from convicted offenders outweighed inmates' interests in being free from physical intrusion and intrusion on their privacy. U.S.C.A. Const.Amend. 4; N.Y.McKinney's Executive Law § 995 et seq. Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005).

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Comment

By refusing to grant certiorari, the United States Supreme Court in Nicholas v. Goord, 127 S. Ct. 384, 166 L. Ed. 2d 270 (U.S. 2006), left undisturbed the Second Circuit decision in Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005), cert. denied, 127 S. Ct. 384, 166 L. Ed. 2d 270 (U.S. 2006), that New York's DNA-database statute, which requires certain classes of convicted felons to provide DNA samples to be maintained in a state database, was justified under the Fourth Amendment's "special needs" exception. The statute's primary purpose was to assist in solving crimes should an investigation of such crimes permit resort to DNA testing. This purpose was distinct from ordinary crime-detection activities associated with normal law-enforcement concerns. Furthermore, New York's interest in keeping records of identifying information from convicted offenders outweighed inmates' interests in being free from physical intrusion and intrusion on their privacy. The petition for certiorari asked whether a state violates the Fourth Amendment when it forcibly collects and analyzes blood and DNA from individuals without a warrant or any individualized suspicion of criminal wrongdoing, where such collection and analysis is solely for the purpose of creating a DNA database for use in solving crimes. The petition made three major points. First, it said, the Second Circuit's decision conflicted with controlling Supreme Court precedent, including Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004), in which the Supreme Court upheld the constitutionality of a highway checkpoint that had the objective of finding a perpetrator of a "specific and known crime." Second, the Second Circuit's decision broadly undermined the privacy rights of all citizens. Third, although every appellate court to date that has considered the issue has found DNA databanks for individuals convicted of specified crimes constitutional, there is a serious split between the circuits as to how to analyze the issue.

New York's DNA-indexing statute, requiring certain classes of convicted felons to provide DNA samples to be maintained in state database, satisfied Fourth Amendment under special-needs test, and thus did not constitute unreasonable search and seizure. U.S.C.A. Const.Amend. 4; N.Y.McKinney's Executive Law § 995 et seq. Grant v. Goord, 155 Fed. Appx. 551 (2d Cir. 2005).

New York's deoxyribonucleic acid (DNA) indexing program did not violate Fourth Amendment; primary purpose, which was to create a DNA database to assist in solving crimes should the investigation of such crimes permit resort to DNA testing of evidence, reflected a need beyond the normal need for law enforcement, and taking into account the decreased expectation of privacy to be accorded convicted felons who are incarcerated, the minimal intrusiveness of the sampling, and the extremely strong governmental interest in solving crimes, the intrusion was constitutionally reasonable. U.S.C.A. Const. Amend. 4; N.Y. Exec. Law § 995. Nicholas v. Goord, 2003 WL 256774 (S.D. N.Y. 2003).

Caution

The court in Nicholas v. Goord, 2004 WL 1432533 (S.D. N.Y. 2004), aff'd, 430 F.3d 652 (2d Cir. 2005), cert. denied, 127 S. Ct. 384, 166 L. Ed. 2d 270 (U.S. 2006), § 15, rejected the special needs analysis.

State statute requiring those convicted of felonies to furnish DNA samples for storage in data bank comported with Fourth Amendment's reasonableness requirement under "special needs" doctrine, even though primary purpose of testing was to assist law enforcement; inmates had no misunderstanding about purpose of samples or their potential use, statute was narrowly drawn and served important state interest in solving past and future crimes, inmates were already "seized," and DNA was most reliable evidence of identification. U.S.C.A. Const. Amend. 4; W.S.A. 165.76 et seq. Green v. Berge, 354 F.3d 675 (7th Cir. 2004).

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Non–consensual extraction of DNA from a federal prisoner who was convicted of bank robbery, for placement of prisoner's DNA profile into the FBI's Combined DNA Index System (CODIS), as required under the DNA Analysis Backlog Elimination Act of 2000, was a valid suspicionless search pursuant to the special needs doctrine. U.S. Const. Amend. IV; DNA Analysis Backlog Elimination Act of 2000, § 2(a, e), 42 U.S.C.A. § 14135(a, e). Vore v. U.S. Dept. of Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003).

State statute compelling the collection of DNA from prisoner fell under the special needs exception to the Fourth Amendment's warrant requirement, and thus, taking of prisoner's DNA without his consent did not violate his substantive due process rights. U.S. Const. Amends. IV, XIV; West's C.R.S.A. § 16–11–102.3. Esnault v. Burnett, 83 Fed. Appx. 279 (10th Cir. 2003).

Seizure of defendant's DNA sample while he was incarcerated for analysis and use in DNA sex offender database came within special needs exception to warrant requirement of Fourth Amendment; when balanced against prisoners' greatly reduced expectation of privacy and minimally intrusive nature of a blood draw, significant governmental interests in exonerating the innocent, solving past and future crimes, and deterring recidivism were sufficient to justify suspicionless collection and testing of DNA samples from prisoners. U.S.C.A. Const.Amend. 4; West's C.R.S.A. §§ 16–11–102.3(1.5, 6), 17–2–201(5)(g)(I). People v. Shreck, 107 P.3d 1048 (Colo. Ct. App. 2004), as modified on denial of reh'g, (Nov. 10, 2004) and cert. denied, 2005 WL 453078 (Colo. 2005).

Statute that required all persons convicted of a felony to provide a specimen of blood, saliva, or tissue did not constitute an unreasonable search and seizure; the purpose of collecting DNA was to absolve innocents, identify the guilty, deter recidivism by identifying those at a high risk for reoffending, or bring closure to victims, and the special need of the State outweighed the privacy interests of a defendant. U.S.C.A. Const.Amend. 4;S.H.A. 730 ILCS 5/5–4–3(a–5). People v. Young, 302 Ill. Dec. 847, 850 N.E.2d 284 (App. Ct. 1st Dist. 2006), appeal denied, 219 Ill. 2d 596 (2006).

Statute requiring mandatory DNA testing of all persons convicted of a felony did not violate constitutional prohibition against unreasonable searches; state had a strong interest in deterring and prosecuting recidivist criminal acts, and obtaining reliable DNA identification evidence offered a precise method of identifying and eliminating potential suspects, as a convicted felon the defendant had a diminished expectation of privacy, and the physical intrusion imposed by the statute amounted to a relatively insubstantial test that posed no threat to the health or safety of the defendant. U.S.C.A. Const.Amend. 4;S.H.A. 730 ILCS 5/5-4-3(a). People v. Chamberlain, 291 Ill. Dec. 39, 822 N.E.2d 914 (App. Ct. 3d Dist. 2005).

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Statute requiring DNA sampling from all persons found guilty of any offense classified as felony under State law did not violate Fourth Amendment under the "special needs test"; primary purpose of sampling went beyond normal needs of ordinary law enforcement in seeking to assist law enforcement agencies in solving future crimes, only appropriately qualified personnel were to perform DNA extractions, extractions had to be performed in medically approved procedure, samples were maintained exclusively by Illinois Department of State Police, and information obtained was confidential and released only to authorized persons. U.S.C.A. Const.Amend. 4; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4– 3(a–5). People v. Hall, 287 Ill. Dec. 736 (App. Ct. 1st Dist. 2004), reh'g denied, (Oct. 21, 2004).

Statute requiring DNA sampling from all persons convicted or found guilty of any offense classified as felony under State law was not unconstitutional on its face or as applied to defendant convicted of possession of a controlled substance; statute's purpose to absolve innocents, identify guilty, deter recidivism by identifying those at high risk of reoffending, or bring closure to victims demonstrated a special need beyond ordinary law enforcement, and State's interest in effective crime investigations and prevention outweighed defendant's privacy interest as convicted felon. U.S.C.A. Const.Amend. 4; S.H.A. Const. Art. 1, § 6;S.H.A. 730 ILCS 5/5–4–3. People v. Jones, 873 N.E.2d 562 (Ill. App. Ct. 1st Dist. 2007).

Statutory requirement that defendant convicted of felony forgery submit DNA sample for state DNA database came within special needs exception to prohibition against suspicionless searches. U.S.C.A. Const.Amend. 4; West's A.I.C. 10–13–6–10. Keeney v. State, 873 N.E.2d 187 (Ind. Ct. App. 2007).

State's DNA database serves special need that goes beyond normal need for law enforcement, for purposes of "special needs" exception to Fourth Amendment's general requirement that searches and seizures be conducted with individualized suspicion of wrongdoing. U.S. Const. Amend. IV. Balding v. State, 812 N.E.2d 169 (Ind. Ct. App. 2004).

DNA-sampling statute, which permitted collection of DNA samples from persons convicted of certain offenses, fulfilled special need apart from ordinary law enforcement, as required to meet "special needs" exception to Fourth Amendment's prohibition against suspicionless searches, notwithstanding that DNA database was maintained for law enforcement purposes, where primary purpose of database was not to detect unknown crimes, but to assist police in solving crimes where perpetrators left DNA evidence. U.S.C.A. Const.Amend. 4; KRS 17.175; KRS 17.170 (2005); KRS 17.171–17.174 (Repealed). Petitioner F v. Brown, 306 S.W.3d 80 (Ky. 2010).

State had special needs beyond need for normal law enforcement, as element of special needs analysis for determining whether DNA testing and collection under New Jersey's DNA Database and Databank Act of 1994 violated federal and state constitutional rights to be free from unreasonable searches; DNA testing and collection could be used to assist in the accurate identification of persons at a crime scene, support identification research and protocol development of forensic DNA analysis methods, assist in recovery of human remains from mass disaster or other humanitarian purposes, combat recidivism, and exonerate the innocent. U.S.C.A. Const.Amend. 4; N.J.S.A. Const. Art. 1, par, 7; N.J.S.A. 53:1–20.17 et seq. State v. O'Hagen, 914 A.2d 267 (N.J. 2007).

Special needs beyond ordinary crime detection which were furthered by sample provision requirement of DNA Database and Databank Act substantially outweighed obtrusiveness of various intrusions on offenders' reasonable expectations of privacy, justifying application of "special needs" exception to state and federal constitutional warrant requirement to seizure and searches required under statute, where government interest in detecting and deterring recidivism was

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compelling and intrusions on offenders' privacy were minimal or nonexistent. U.S.C.A. Const.Amend. 4; N.J.S.A. Const. Art. 1, par. 7; N.J.S.A. 53:1–20.17 to 53:1–20.28. A.A. ex rel. B.A. v. Attorney General of New Jersey, 384 N.J. Super. 67, 894 A.2d 31 (App. Div. 2006), certification granted (N.J. Mar. 30, 2006).

Intrusion resulting from collection of DNA samples was substantially outweighed by State's need to deter and detect recidivist offenders and public's interest in promptly identifying and accurately prosecuting actual perpetrators of crimes, as element of special needs analysis for determining whether DNA testing and collection under New Jersey's DNA Database and Databank Act of 1994 violated federal and state constitutional rights to be free from unreasonable searches, or as basis for finding such searches constitutional under totality of the circumstances test; intrusion on privacy was minimal, prisoners and convicted offenders had diminished expectation of privacy regarding identifying information, and the Act provided for individual privacy protections. U.S.C.A. Const.Amend. 4; N.J.S.A. Const. Art. 1, par. 7; N.J.S.A. 53:1–20.17 et seq., 53:1–20.26, 53:1–20.27. State v. O'Hagen, 380 N.J. Super. 133, 881 A.2d 733 (App. Div. 2005) (citing annotation).

DNA sample obtained from defendant while he was incarcerated on unrelated matter was search that fell within "special needs" exception to prohibition against suspicionless searches, and thus was admissible in prosecution for sodomy and sexual abuse. U.S.C.A. Const.Amend. 4; McKinney's Executive Law § 995–c(3). People v. Blake, 39 A.D.3d 402, 835 N.Y.S.2d 78 (1st Dep't 2007).

Extraction of inmate's blood for DNA data base was not an unreasonable search and seizure; Commonwealth's interest outweighed inmate's privacy rights, since maintaining DNA data base served important governmental purpose of providing information to those who investigate and solve crimes, and thus, inmate failed to establish that extraction of his DNA violated any federal or state constitutional right. U.S. Const. Amend. IV; Const. Art. 1, § 8; 42 Pa. C.S.A. § 4717(c). Com. ex rel. Smith v. Pennsylvania Dept. of Corrections, 829 A.2d 788 (Pa. Commw. Ct. 2003).

Members of House of Representatives stated claim that bill including DNA Act and amendments to chapter relating to comparative negligence violated constitution's single subject rule; requiring DNA samples from incarcerated felony sex offenders does not bear proper relation to joint and several liability for acts of negligence. Const. Art. 3, § 3. DeWeese v. Weaver, 824 A.2d 364 (Pa. Commw. Ct. 2003).

Blood draw ordered pursuant to statute permitting juvenile courts to require submission of DNA samples to state DNA databank as condition of probation in delinquency adjudication proceedings was not unreasonable search and seizure under Fourth Amendment, where statute fell within "special needs" exception to unconstitutionality of warrantless, suspicionless search or seizure and legitimate governmental interests outweighed intrusion on juveniles' Fourth Amendment rights. U.S.C.A. Const. Amend. 4;. In re D.L.C., 124 S.W.3d 354 (Tex. App. Fort Worth 2003).

Statute requiring convicted nonviolent felons to provide DNA samples for inclusion in state and federal DNA databases does not violate State constitutional search and seizure provision; statute served special needs of identifying future offenders and missing persons, cheek swab was minimally intrusive, DNA analysis was authorized only for narrow purposes of determining identity, remedies were provided for wrongful disclosure of protected information, and searches were subject to clear administrative guidelines and were performed uniformly on all felons subject to them. Const. C. 1, Art. 11; 20 V.S.A. § 1931 et seq. State v. Martin, 2008 VT 53, 955 A.2d 1144 (Vt. 2008).

Statute providing for collecting DNA samples from felony offenders is constitutionally valid; purposes of compelling DNA samples, which are to identify incarcerated felons and deter recidivism, are special needs that go beyond law enforcement, and, moreover, the State has a compelling interest in a DNA databank, the means of collecting DNA samples are minimally intrusive, and convicted felons have no reasonable expectation of privacy in identifying markers. West's RCWA 43.43.754. State v. Davis, 104 P.3d 11 (Wash. Ct. App. Div. 1 2004).

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Collection of biological sample from convicted felon, for purposes of DNA identification analysis, did not constitute an unlawful search in the absence of particularized suspicion and a warrant; no warrant was required inasmuch as the search served a special need beyond law enforcement. West's RCWA 43.43.754. State v. S.S., 122 Wash. App. 725, 94 P.3d 1002 (Div. 1 2004).

Obtaining DNA samples from convicted felons, as part of their sentences, for state's DNA databank served special need beyond normal law enforcement which comported with Fourth Amendment reasonableness requirements; safe, nondiscriminatory collection of DNA samples from lawfully incarcerated felons was not undertaken for investigation of specific crime, but to obtain reliable proof of felon's identity for purpose of deterring recidivism. U.S.C.A. Const. Amend. IV; West's RCWA 43.43.754(1); WAC 446-75-060. State v. Surge, 122 Wash. App. 448, 94 P.3d 345 (Div. 1 2004), review granted, 111 P.3d 1190 (Wash. 2005).

Statutory requirement that persons convicted of felonies submit samples of deoxyribonucleic acid (DNA) was reasonable and did not violate Fourth Amendment; collecting DNA samples either from blood, saliva, or hair through routine, unobtrusive procedures was minimally intrusive, and purpose of collecting DNA identification information was to advance legitimate state interest in criminal law enforcement. U.S. Const. Amend. 4; Wyo.Stat.Ann. § 7–19–401 et seq. Doles v. State, 994 P.2d 315 (Wyo. 1999).

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§ 16.5. Unreasonable search and seizure under state constitution

[Cumulative Supplement]

The following authority addressed whether a state's DNA database statute, in requiring certain persons to submit a DNA sample in the absence of a warrant or individualized suspicion, authorizes an unreasonable search and seizure in violation of a state constitution.

CUMULATIVE SUPPLEMENT

Cases:

DNA Fingerprint, Unsolved Crime and Innocence Protection Act requirement that defendant arrested for arson submit cheek swab DNA sample did not violate defendant's search and seizure rights under the California Constitution; officials asked defendant for a DNA sample upon booking, after he was arrested based on probable cause for a serious offense, and as he was entering pretrial detention, DNA collection served valid identification purpose, and Act made misuse of DNA information a felony. Cal. Const. art. 1, § 13; Cal. Penal Code §§ 296.1(a)(1)(A), 298.1(a). People v. Buza, 230 Cal. Rptr. 3d 681, 413 P.3d 1132 (Cal. 2018).

To extent that DNA Act required felony arrestee to submit DNA sample for law enforcement analysis and inclusion in state and federal DNA databases without independent suspicion, warrant, or judicial or grand just determination of probable cause, Act was invalid under state constitutional protection against unreasonable searches and seizures, since Act unreasonably intruded on arrestee's expectation of privacy; Act permitted specimens seized by police to be retained indefinitely and to be used to solve crimes other than those for which arrestee was arrested and to implicate biological relatives of arrestee, privacy rights of arrestee fell closer to rights of ordinary citizen than to one whom probable cause had been found by judicial officer or grand jury, and governmental interest in effectiveness of DNA testing in solving

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crimes did not render testing constitutional. Cal. Const. art. 1, §§ 1, 13; Cal. Penal Code § 295 et seq. People v. Buza, 2014 WL 6807723 (Cal. App. 1st Dist. 2014) [citing annotation].

New Mexico's DNA Identification Act, requiring all persons arrested for certain crimes to provide a DNA sample to be placed in Combined DNA Index System (CODIS), does not facially violate the search and seizure provision of the state constitution, even though DNA from unsolved crimes can be compared to an arrestee's known DNA. N.M. Const. art. 2, § 10; N.M. Stat. Ann. § 29-16-1. State v. Blea, 2018-NMCA-052, 425 P.3d 385 (N.M. Ct. App. 2018), cert. denied, (Aug. 17, 2018).

Amendment to DNA-database statute that mandated warrantless, suspicionless DNA collection and analysis from anyone arraigned for a felony after a determination of probable cause violated state constitutional provision that protected against unlawful searches and seizures, although it was possible that the fruits of a DNA search would produce information bearing on conditions of release or confinement with respect to a particular defendant; that possibility alone was insufficient to justify a warrantless DNA search of every defendant, with no distinction among those who would be searched, and the State's interest in DNA collection at the point of arraignment was marginal, and did not outweigh the privacy interest retained by arraignees prior to conviction. Vt. Const. ch. 1, art. 11. State v. Medina, 2014 VT 69, 2014 WL 3388014 (Vt. 2014).

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§ 17. Vagueness

There is authority holding that a state's DNA database statute was not unconstitutionally vague.

Affirming orders requiring various criminal defendants to submit a DNA sample under the DNA database statute, West's RCWA 43.43.754, the court, in State v. Olivas, 122 Wash. 2d 73, 856 P.2d 1076 (1993), held that the defendants did not establish that the statute was unconstitutionally vague, although the court did not specify the statutory language asserted to be vague. The court observed that vagueness challenges to enactments not involving First Amendment rights were to be evaluated in light of the particular facts of each case, as such enactments were not properly evaluated for facial vagueness, but rather as they were applied. As noted in § 4[b] and § 16, respectively, the court also held that the statute did not violate the requirements of equal protection or authorize an unreasonable search and seizure.

III. CONSTRUCTION AND OPERATION OF DNA DATABASE STATUTES

§ 17.5. Mandatory nature of statutory provisions

[Cumulative Supplement]

The following authority noted the mandatory nature of state DNA database statutory provisions.

CUMULATIVE SUPPLEMENT

Cases:

The provisions of the DNA and Forensic Identification Database and Data Bank Act are mandatory and automatic upon conviction of a felony. West's Ann.Cal.Penal Code §§ 295 et seq. People v. Travis, 139 Cal. App. 4th 1271, 44 Cal. Rptr. 3d 177 (1st Dist. 2006), review denied, (Sept. 20, 2006) [citing annotation].

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Supreme Court would not enter protective order limiting comparison of defendant's DNA to this case and prohibiting inclusion in state DNA database, where courts had denied such protective orders for at least a decade, but the legislature had never amended statute to prohibit inclusion in databases, and statute explicitly allowed for expungement of DNA records for those not charged or convicted. N.Y. Executive Law § 995-c. People v. White, 2018 WL 2066895 (N.Y. Sup 2018).

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§ 18. Application to juveniles

[Cumulative Supplement]

The applicability of a state's DNA database statute to juveniles has been adjudicated.

Upholding orders in two cases consolidated for appeal requiring those juveniles who admitted to sexually abusing children to submit DNA samples, the court, in Matter of Appeal in Maricopa County Juvenile Action Numbers JV-512600 and JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. Div. 1 1996), review denied, (Jan. 14, 1997), held that A.R.S. §§ 13–4438, 31–281, requiring juveniles to submit DNA samples to the state's DNA database, could properly be applied to juveniles even though they affected the juveniles beyond the age of majority, in that the juveniles' DNA samples would remain in the state's DNA database indefinitely. Although the juveniles contended that A.R.S. Const. Art. 5, § 15 limited the exclusive jurisdiction of the juvenile court to age 18, the court observed that that provision also stated in the last sentence that "[t]he powers of the judges to control such children shall be as provided by law." This sentence, the court concluded, meant that once the juvenile court had acquired proper jurisdiction over persons under the age of 18, it could continue to hold control over these persons as provided by law. Because the legislature had expressly granted the juvenile court jurisdiction to order mandatory DNA testing by enacting §§ 13–4438, 31–281, the court reasoned, there was no violation of the constitutional provision. Next considering A.R.S. § 8–207(C), prohibiting the use of DNA test results beyond the age of majority, the court declared that the use of a juvenile's DNA test results beyond the age of majority did not violate § 8–207(C) because DNA testing was not punitive and was procedural in nature. Section 8– 207(C), the court explained, related to an adjudication and the punishment imposed by the juvenile court, and not to an order to submit to DNA testing. Turning to A.R.S. § 8–247, allowing for the destruction of juvenile court records once a juvenile reached the age of majority, which the juveniles contended acted as a bar to the use of DNA test results beyond the age of majority, the court, in disagreeing, emphasized that the statute did not provide the juvenile court with discretion to destroy a Department of Public Safety record. Nor, added the court, did the statute preclude the legislature from specifically providing for public agencies, such as the Department of Public Safety, to maintain records concerning juveniles for purposes separate from those of the juvenile court. Also rejecting the juveniles' contention that §§ 13–4438, 31–281 violated the philosophy and theory of the juvenile court, the court said that, while it recognized the protective nature of the juvenile court's role, it was also required to recognize society's need to detect and deter the repetitive offender. Disagreeing with the assertion that the two statutes violated the philosophy that juvenile proceedings should be conducted with an eye toward protection, treatment, and guidance of children, the court declared that DNA testing worked in concert with these interests by deterring the juvenile from committing future sex offenses, while aiding police in investigating future crimes. Accordingly, the court found that the statutes furthered the protective and rehabilitative goals of the juvenile court. As noted in § 10, § 14, and § 22, respectively, the court also held that the statutes did not violate the juveniles' right to privacy or authorize an unreasonable search and seizure; and that the application of the statutes to the juveniles was permitted by state statutes governing the retroactivity of state legislation, even though the conduct admitted to by the juveniles occurred prior to the enactment of the database statutes.

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CUMULATIVE SUPPLEMENT

Cases:

Requiring juvenile, found to have committed felony car theft and driving without license, to provide deoxyribonucleic acid (DNA) samples did not violate Fourth Amendment; intrusion into juvenile's Fourth Amendment interests, including his interest in confidentiality of juvenile court proceedings, did not outweigh legitimate government interest in DNA testing as aid to law enforcement. U.S.C.A. Const.Amend. 4; West's Ann.Cal.Penal Code § 296(a)(1). In re Calvin S., 150 Cal. App. 4th 443, 58 Cal. Rptr. 3d 559 (3d Dist. 2007), as modified on denial of reh'g, (May 30, 2007).

Cheek swab taken from defendant as a juvenile on deferred adjudication violated juvenile DNA collection statute, as juvenile court had granted defendant a deferred adjudication, defendant was not required to submit a DNA sample by another section of the juvenile DNA collection statute, and defendant had successfully completed his deferred adjudication. Colo. Rev. Stat. Ann. § 19-2-925.6(1). People v. Casillas, 2015 COA 15, 2015 WL 795765 (Colo. App. 2015).

The court in L.S. v. State, 805 So. 2d 1004 (Fla. Dist. Ct. App. 1st Dist. 2001), review denied (Fla. May 29, 2002), held that a state statute that imposed DNA testing requirements on felons convicted of specific, enumerated offenses did not violate a juvenile's right to be free of unreasonable searches and seizures, equal protection, or right of privacy under the state constitution, even though the juvenile pled nolo contendre to burglary, and the court withheld adjudication. Any intrusion to be suffered by the juvenile was outweighed by the state's interests in identifying perpetrators, exonerating innocent persons charged with criminal offenses, and preventing the furtherance of criminal activity.

Statute requiring persons convicted of, or found delinquent for, certain offenses or institutionalized as sexually dangerous to provide samples for DNA testing was not unconstitutional as applied to juvenile. S.H.A. 730 ILCS 5/5–4–3. In re Keith C., 880 N.E.2d 1157 (Ill. App. Ct. 1st Dist. 2007), appeal pending, (Mar. 1, 2008).

Carving out a special exception exempting juveniles under age 14 from requirement under DNA Database and Databank Act that juveniles adjudicated delinquent submit a DNA sample was not constitutionally required; DNA testing was a one-time procedure that applied equally to juveniles found delinquent and adults found guilty of a crime, and DNA testing had no requirement that juvenile perform any act in the future, but, rather, DNA test results simply acted as an identification device, much like a fingerprint, and were stored in a secure local and national database. N.J.S.A. 53:1-20.17 et seq. A.A. ex rel. B.A. v. Attorney General of New Jersey, 914 A.2d 260 (N.J. 2007).

Trial court had authority to order juvenile to submit to DNA sampling under the DNA Act, after adjudication of delinquency; juvenile was under supervision for felony firearms adjudication after the effective date of amendment to Act that required sampling for juvenile adjudications. 44 Pa.C.S.A. § 2316. In re T.E.H., 2007 PA Super 193, 928 A.2d 318 (2007).

Fact that a juvenile adjudicated delinquent for a qualifying sex offense and placed on probation may be excused from sex offender registration does not alter the fact that he was placed on probation for an offense requiring sex offender registration or nullify the independent requirement of a DNA sample. V.T.C.A., Family Code §§ 54.04, 54.0405(a)(2); Vernon's Ann. Texas C.C.P. art. 62.01(5)(A). In re D.L.C., 124 S.W.3d 354 (Tex. App. Fort Worth 2003).

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§ 19[a] Necessity of incarceration—Statute applicable

[Cumulative Supplement]

There is authority holding that a state's DNA database statute applied to a prisoner who had previously been convicted of one of the predicate offenses enumerated in the statute, although at the time of the statute's enactment he was incarcerated for a different offense that was not a predicate offense under the statute.

Reversing a judgment for the plaintiff prison inmate, the court, in Murphy v. Department of Correction, 429 Mass. 736, 711 N.E.2d 149 (1999), held that the state's DNA database statute, M.G.L.A. c. 22E, § 1 et seq., applied to the inmate, who had previously been convicted of one of the predicate offenses enumerated in the statute, although at the time of the statute's enactment he had completed his sentence for that conviction and was imprisoned for an offense that was not a predicate offense under the statute. The statute applied to a person convicted of a predicate offense and "who is incarcerated … on the effective date of this act, notwithstanding the date of such conviction." Rejecting the inmate's contention that the statute applied only to those who were incarcerated for a predicate offense on the effective date, the court declared that the statutory language was clear and required any person ever convicted of a predicate offense, who was incarcerated on the effective date of the statute, to provide a DNA sample. The statute, the court said, made no distinction based on the offense for which the individual was currently incarcerated, and it therefore clearly applied regardless of the reason for the current incarceration. The legislature had evidently determined, the court reasoned, that the statutory purpose was best served by collecting DNA samples from individuals convicted of the set of predicate offenses listed in the statute. It was entirely rational, the court explained, that, in pursuit of the statutory goal, the legislature should provide for collection of DNA samples from as many of these individuals as possible. Further, the court continued, it was not difficult to imagine why the legislature would require samples to be collected from incarcerated individuals but not from those individuals who were not under the state's supervision, as it was much less burdensome for law enforcement and correction officers to collect samples from individuals who were already in custody for whatever reason than it would be to send officers to track down and collect samples from every free individual who had ever been convicted of a predicate offense. Moreover, the court added, it would also be burdensome for persons not presently under the state's supervision to be required to take the affirmative step of presenting themselves to state authorities for the collection of a sample. Accordingly, the court concluded, a literal construction of the statute, requiring collection of DNA samples from persons imprisoned for nonpredicate offenses on the statute's effective date, did not produce an irrational result. As noted in § 4[b], the court also held that, in order to avoid an equal protection violation, the statute would be interpreted to apply to persons incarcerated on or after the statute's effective date.

CUMULATIVE SUPPLEMENT

Cases:

The court in Smith v. State, 734 N.E.2d 706 (Ind. Ct. App. 2000) (citing annotation), held that the Indiana Statute providing for the establishment of a state DNA records database, Ind. Code § 10-1-9-8, does not expressly exclude records obtained by valid search warrants or court orders pursuant to criminal investigations not resulting in conviction. The Indiana DNA database was thus not statutorily prohibited from storing DNA profile records of an arrestee whose DNA was collected pursuant to a valid search warrant or court order.

Sample of defendant's blood was properly taken for DNA testing, where defendant was convicted of, and was still serving his sentence for, first–degree attempted burglary, which was an offense for which provision of a blood sample was required. McKinney's Executive Law § 995–c, subd. 3. People v. Aracillo, 196 Misc. 2d 758, 766 N.Y.S.2d 522 (Sup 2003).

Department of Corrections was not required to expunge and destroy blood samples extracted from inmate for DNA data base; statute provided that person who was convicted or adjudicated delinquent for felony sex offense or other

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specified offense, and was incarcerated on or after effective date of chapter was required to have a DNA sample drawn, robbery qualified as "other specified offense," Department withdrew blood for data base after effective date, Department properly aggregated inmate's sentences, and thus, since inmate was incarcerated for robbery at time, he fell within criteria of statute. 42 Pa. C.S.A. §§ 4703, 4716(a). Com. ex rel. Smith v. Pennsylvania Dept. of Corrections, 829 A.2d 788 (Pa. Commw. Ct. 2003).

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§ 19[b] Necessity of incarceration—Statute not applicable

[Cumulative Supplement]

There is authority holding that a prisoner on probation could not be ordered to submit a blood sample under the state's DNA database statute.

Reversing an order requiring a probationer to submit a blood sample, the court, in Carra v. State, 736 So. 2d 721 (Fla. Dist. Ct. App. 2d Dist. 1999), reh'g denied, (July 9, 1999), held that the probationer could not be ordered to submit the sample under Florida's DNA database statute, West's F.S.A. § 943.325, since the statute expressly applied only to persons who had been convicted and were "still incarcerated."

CUMULATIVE SUPPLEMENT

Cases:

The Department of Corrections was not authorized to obtain a DNA sample from inmate based on inmate's convictions for robbery and burglary; statute that provided authority for the Department to obtain DNA samples required that a defendant be convicted of an enumerated offense and that the defendant be confined in connection with that offense, robbery and burglary were enumerated offenses, however inmate's sentence for robbery and burglary had expired, and inmate was serving a sentence for a different offense. 42 Pa. C.S.A. § 4716(b). Smith v. Department of Corrections, 837 A.2d 652 (Pa. Commw. Ct. 2003).

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§ 20[a] Predicate offenses—Statute applicable

[Cumulative Supplement]

There is authority holding that a state's DNA database statute applied to a prisoner convicted of a predicate offense specified in the statute, even though the prisoner had been convicted under a prior version of the codification of that offense.

Quashing a state prison inmate's writ of habeas corpus, the court, in Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997), held that V.A.M.S. § 650.055, requiring persons convicted of "a violent offense under Chapter 565, RSMo" to submit a blood sample for the state's DNA database, applied to the inmate, even though Chapter 565, under which the inmate was convicted in

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1981, had been amended in 1984. Second degree murder was a violent offense under the current Chapter 565, the court reasoned, and likewise was inherently a violent offense under the pre–1984 Chapter 565. The court concluded that, because the inmate was convicted of a violent offense under Chapter 565 and § 650.055 did not involve a procedure affected by the 1984 amendments to Chapter 565, he was not exempt from the requirements of providing a DNA blood sample. As noted in § 6[c], § 10, § 11, § 13, and § 15, respectively, the court also held that § 650.055 did not violate the ex post facto clause, prisoners' right to privacy or right against self–incrimination, deny prisoners substantive due process, or authorize an unreasonable search and seizure.

CUMULATIVE SUPPLEMENT

Cases:

The statutory amendment inserting a citation to the Safe Neighborhoods and Schools Act in the "notwithstanding any other law" clause of the statute providing that a judge may not relieve a person of the duty to provide a DNA sample if a person has been found guilty or was adjudicated a ward for "a qualifying offense" means that when a trial court grants a petition to reduce a felony offense to a misdemeanor under the Safe Neighborhoods and Schools Act, the trial court may not expunge the record of a DNA sample provided by the defendant in connection with the original felony. Cal. Penal Code §§ 299(f), 1170.18(k). In re J.C., 2016 WL 1719135 (Cal. App. 1st Dist. 2016).

Trial court's order requiring minor to provide samples for DNA data bank, after she admitted wobbler charge of unlawfully taking a vehicle, had to be stayed pending trial court's determination of the felony/misdemeanor status of her offense, where statute under which DNA samples were ordered did not apply to misdemeanors. West's Ann.Cal.Penal Code § 296(a)(1). In re Nancy C., 132 Cal. App. 4th 608, 33 Cal. Rptr. 3d 814 (3d Dist. 2005).

Crime defendant was arrested for was not required to be serious in nature to have DNA taken from defendant pursuant to Katie's Law, and thus taking DNA upon defendant's arrest for aggravated driving was not unconstitutional as applied in prosecution for first degree murder after deliberation; although defendant was in custody for a misdemeanor offense, it was not unconstitutional to take DNA from all arrestees, because the magnitude of the state's interest does not necessarily depend on the seriousness of the crime of arrest. U.S. Const. Amend. 4; Colo. Rev. Stat. Ann. § 16-23-103. People v. Valdez, 2017 COA 41, 405 P.3d 413 (Colo. App. 2017), cert. denied, 2017 WL 4872875 (Colo. 2017).

Burglary was felony offense for which conviction subjected defendant to statutory requirement that he submit to DNA testing as part of sentence. MCA 44–6–103. State v. Johnson, 2005 MT 48, 326 Mont. 161, 108 P.3d 485 (2005).

Defendant would be required to submit to buccal swab in burglary prosecution, where prosecution established probable cause to believe defendant committed burglary in question, relevant evidence would be found, and method to be used, a swab of defendant's cheek inside defendant's mouth, was safe and reliable. McKinney's CPL § 240.40. People v. Oliver, 955 N.Y.S.2d 481 (County Ct. 2012).

Oklahoma offense for burglary of a habitation, which involved the same conduct proscribed by Texas burglary statute, was a qualifying offense under statute that authorized Texas Department of Criminal Justice (TDCJ) to collect a sample for the DNA database. V.T.C.A., Government Code § 411.148. Villarreal v. State, 255 S.W.3d 205 (Tex. App. Waco 2008).

Order requiring defendant to submit a DNA sample upon his conviction for tampering with a witness was warranted, despite fact that his criminal history showed controlled substance violation; nothing in record showed that defendant actually submitted a DNA sample for the prior offense, or that state had a DNA sample for the qualifying offense. Wash. Rev. Code Ann. §§ 43.43.754(2), 43.43.7541. State v. Lewis, 194 Wash. App. 709, 379 P.3d 129 (Div. 1 2016).

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

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§ 20[b] Predicate offenses—Statute not applicable

[Cumulative Supplement]

There is authority holding that a defendant convicted of a non–predicate offense under a state DNA database statute is not subject to the statute.

Reversing the defendant's conviction for attempted murder insofar as it required him to submit blood and saliva samples for DNA analysis, the court, in People v. Sanchez, 52 Cal. App. 4th 997, 60 Cal. Rptr. 2d 880 (5th Dist. 1997), held that attempted murder was not one of the enumerated offenses to which West's Ann.Cal.Penal Code § 290.2, the state's DNA database statute, applied. The fact that the statute specifically included some attempted crimes, but not others, and specifically enumerated one specific type of attempted murder but not others, the court said, led to a conclusion that the intent of the legislature was to include only the expressly enumerated offenses and attempted offenses. Rejecting the state's argument that the legislative intent of the statute was that violent offenders be required to provide blood and saliva samples for DNA testing, the court replied that it was not the courts role to substitute its judgment for that of the legislature. Observing that the statute had been amended not less than six times, the court said that, if the legislature had concluded that one or more further attempted crimes should be included within the statute, it was properly within the legislative function for it to do so.

CUMULATIVE SUPPLEMENT

Cases:

Defendant convicted of robbery in the third degree was not a "designated offender" under statute requiring certain designated offenders to provide a DNA sample for identification and inclusion in the state DNA identification index; third–degree robbery was class D nonviolent felony not listed in statute. McKinney's Executive Law § 995–c, subd. 3; McKinney's Penal Law § 160.05. People v. Sharp, 759 N.Y.S.2d 787 (App. Div. 3d Dep't 2003).

DNA Act did not apply to defendant incarcerated for non-predicate offense, and thus defendant's misdemeanor retail theft convictions did not submit him to purview of DNA Act; defendant was incarcerated and sentenced for non- qualifying offenses of retail theft, he was no longer under supervision for his prior felony criminal trespass adjudication, but was only incarcerated because he was unable to post bail for retail theft charges, and incarceration was not due to conviction for felony sex offense or other specified offense. 44 Pa.C.S.A. § 2316. Com. v. Derk, 2006 PA Super 60, 895 A.2d 622 (2006).

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§ 20.5. Necessity of warrant prior to obtaining sample

[Cumulative Supplement]

The following authority considered whether a warrant was required prior to obtaining a DNA sample from a convicted felon pursuant to a state DNA-database statute.

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

CUMULATIVE SUPPLEMENT

Cases:

Warrantless buccal swab of defendant's cheek during booking on warrant for revocation of deferred sentence on prior misdemeanor harassment charge, based on error in defendant's criminal history indicating prior conviction for felony offense, in violation of Katie's law, which required collection, during booking, of DNA sample from any person arrested for felony, came within special needs exception to warrant requirement; DNA databases served State's special needs in assisting in exonerating innocent, solving past as well as future crimes, and deterring recidivism, defendant had reduced expectation of privacy as result of probationary status, intrusion of buccal swab to obtain DNA sample was minimal, and there was no showing that violation of Katie's law was willful. U.S. Const. Amend. 4; Colo. Const. art. 2, § 7; Colo. Rev. Stat. Ann. § 16-23-103(1)(a). People v. Lancaster, 2015 COA 93, 373 P.3d 655 (Colo. App. 2015), cert. denied, 2016 WL 3207955 (Colo. 2016).

Neither probable cause nor a warrant is required for the collection of DNA from persons who fall within the ambit of DNA Data Base and Data Bank Act. U.S.C.A. Const.Amend. 4; M.R.S.A. Const. Art. 1, § 5.; 25 M.R.S.A. § 1571 et seq. State v. Hutchinson, 2009 ME 44, 969 A.2d 923 (Me. 2009).

Neither the DNA Collection Act nor the Fourth Amendment prohibited State from uploading a DNA sample lawfully acquired from cup that defendant abandoned, into a database and the search of the database for a match. U.S.C.A. Const.Amend. 4; West's Ann.Md.Code, Public Safety, § 2-501 et seq. Williamson v. State, 993 A.2d 626 (Md. 2010).

New York was not required to obtain warrant prior to obtaining DNA samples from convicted felons pursuant to its DNA-database statute, in that requiring warrant in context of suspicionless searches would be impracticable, and concern that state would exercise its search and seizure powers arbitrarily was not at play since statute took blanket approach and applied to all convicted offenders falling within certain categories. U.S.C.A. Const.Amend. 4; N.Y.McKinney's Executive Law § 995 et seq. Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) (applying New York law).

Commonwealth was not required to obtain a warrant specifically to conduct DNA test on blood samples from clothing that was legally seized by police; defendant's general concern that the government might use any DNA sample of his to obtain private medical information about him was nothing more than speculation, and government did not require a warrant to conduct such analysis any more than it would need a warrant to take an arrested person's fingerprints. U.S. Const. Amend. 4. Commonwealth v. Smith, 164 A.3d 1255 (Pa. Super. Ct. 2017).

Where the State has probable cause to suspect driving under the influence, the requirement to obtain a particularized warrant for blood testing will prevent the State from rummaging among the various items of information contained in a blood sample for evidence unrelated to drunk driving; for example, when a blood sample is obtained in the course of investigating driving under the influence, the State may not, without further warrant, use the sample to produce a DNA profile that can be added to government data banks. U.S.C.A. Const.Amend. 4; West's RCWA Const. Art. 1, § 7. State v. Martines, 331 P.3d 105 (Wash. Ct. App. Div. 1 2014).

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§ 21. Reasonable force to collect samples

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

[Cumulative Supplement]

There is authority holding that it is not necessary, before a state's DNA database statute can take effect, for specific regulations to be promulgated to spell out when, and how, reasonable force could be used to acquire DNA samples from nonconsenting persons.

Vacating a preliminary injunction precluding the enforcement of M.G.L.A. c. 22E, § 1 et seq., the state's DNA database statute, the court, in Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 76 A.L.R.5th 703(1999), petition for cert. filed, 68 U.S.L.W. 3153 (U.S. Aug. 20, 1999), rejected the assertion that, before the statute could take effect, it was necessary for the director of the crime laboratory within the Department of State Police to promulgate specific regulations to spell out when, and how, reasonable force could be used to acquire DNA samples from nonconsenting persons. Believing that those assisting in the collection of DNA samples under the statute knew, or should know, what reasonable force was, and when and how such force could be used, the court said that the term was defined in regulations of the department of correction and could be considered to be a familiar concept, on which training had been given, to law enforcement and correction personnel. The regulations and protocols concerning the collection of DNA samples, the court observed, set out procedures designed to collect blood in a medically sound and sanitary manner. Undoubtedly, the court acknowledged, it was in the interest of the efficacy of the database required by the statute that each DNA sample, whether compelled or voluntary, be obtained under medically pristine conditions. State officials involved with the statute should be well aware, the court reasoned, that an effort to use a DNA record from the database either to identify a suspect or to establish the suspect's innocence (or for any other reason) would inevitably be challenged on the ground (among others) that the DNA sample was not properly obtained or that it had been contaminated with other human DNA, creating a possible misleading or false result. Regulations governing the use of reasonable force by those assisting in the collection of DNA samples were neither mandated by the statute nor otherwise necessary to its implementation, the court concluded. As noted in § 15, the court also held that the statute does not authorize an unreasonable search and seizure, in violation of either the Fourth Amendment or its state constitutional analogue.

CUMULATIVE SUPPLEMENT

Cases:

Statute requiring all felons in custody of Commissioner of Correction to submit to collection of DNA sample implicitly included permission to use reasonable force to obtain sample in order to achieve legislature's goal of creating DNA data bank, despite criminal penalty contained in statute, deeming failure to submit sample a class D felony; penalty did not accomplish goal of obtaining sample to include in data bank, and legislature later amended statute to permit state to use reasonable force. C.G.S.A. § 54–102. State v. Drakes, 143 Conn. App. 510, 70 A.3d 1104 (2013).

It was objectively unreasonable for police officers, when executing an order of which suspect had no prior notice directing that he submit to buccal swab for DNA evidence, to compel him to open his mouth for swab by applying taser to his bare skin, where it was undisputed that suspect did not threaten, fight with, or physically resist officers at any time, but freely accompanied them to police station, and merely refused to open his mouth when they for the first time informed him that they would be performing buccal swab; there were no exigent circumstances to justify officers' failure to employ less-intrusive alternative to use of taser, such as arresting suspect for contempt and applying for judicial intervention. U.S.C.A. Const.Amend. 4. People v. Smith, 940 N.Y.S.2d 373 (App. Div. 4th Dep't 2012).

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§ 22. Retroactive application

[Cumulative Supplement]

In the following cases, the courts held that, as a matter of statutory construction, a state DNA database statute was intended, or was permitted by other state statutes, to operate retroactively in order to apply to persons convicted prior to the enactment of the database statute.

Affirming the dismissal of a state prisoner's action under 42 U.S.C.A. § 1983 against various state prison officials, the court, in Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), cert. denied, 119 S. Ct. 520, 142 L. Ed. 2d 431 (U.S. 1998), held that 74 Okl.St.Ann. § 150.27a—establishing a DNA Offender Database in which DNA samples from individuals convicted of specified offenses were collected and maintained for the purpose of identifying and prosecuting perpetrators of "sex–related crimes, violent crimes, or other crimes in which biological evidence is recovered"—provided for retroactive application to prisoners convicted prior to the enactment of the statute. The statute, the court said, expressly directed that DNA samples were to be taken from anyone in custody after July 1, 1996, who had been convicted of any one of the specified offenses. The legislature had thus expressed its intent, the court concluded, that the statute apply to persons in the prisoner's position. As noted in § 7, the court also held that the statute did not violate the prisoner's right under the First Amendment to free exercise of religion.

Upholding orders in two cases consolidated for appeal requiring those juveniles who admitted to sexually abusing children to submit to HIV tests, the court, in Matter of Appeal in Maricopa County Juvenile Action Numbers JV-512600 and JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. Div. 1 1996), review denied, (Jan. 14, 1997), held that state statutes governing the retroactivity of state legislation permitted the application of A.R.S. §§ 13–4438, 31–281, requiring juveniles to submit DNA samples to the state DNA database, to the juveniles, even though the conduct admitted by the juveniles occurred prior to the enactment of the database statutes. First considering A.R.S. § 1–244, providing that "[n]o statute is retroactive unless expressly declared therein," the court said that a criminal defendant had no vested or substantive right to a particular mode of procedure. Commenting that, generally, a substantive law created, defined, and regulated rights while a procedural law prescribed the method of enforcing those rights or obtaining redress, the court declared that the database statutes were investigatory tools. The DNA material, the court explained, was extracted after adjudication and had no effect on the underlying offense or punishment. The statutes, the court concluded, were procedural in nature and could be retroactively applied. Next considering A.R.S. § 1–246, providing that "[w]hen the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second took effect," the court declared that, because the database statutes were not penal, § 1–246 did not bar retroactive application of those statutes. As noted in § 10, § 14, and § 18, respectively, the court also held that the statutes did not violate the juveniles' right to privacy or authorize an unreasonable search and seizure, and that the statutes could properly be applied to juveniles even though these statutes affected the juveniles beyond the age of majority.

CUMULATIVE SUPPLEMENT

Cases:

Statute authorizing the collection of DNA from any defendant convicted of a qualifying federal offense, amended following defendant's conviction to include the felony for which he was convicted, applied retroactively to the defendant. 42 U.S.C. § 14135a(a)(1), (d)(1). U.S. v. Hartshorn, 163 Fed. Appx. 325 (5th Cir. 2006).

Even if Georgia Bureau of Investigation's (GBI) creation of defendant's DNA profile following prior felony offense, its uploading and retention in database after his incarceration ended, and the running of comparison to other DNA profiles after his release constituted searches, the searches were reasonable under the Fourth Amendment; as probationer at

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

the time that GBI matched defendant's profile to sample from robbery crime scene, defendant had reduced expectation of privacy, government had strong interest in creating permanent identification record for convicted felons for law enforcement purposes, and as probationer government held higher interest in retaining defendant's DNA profile than that of ordinary citizen in case of commission of future offense. U.S. Const. Amend. 4; Ga. Code Ann. § 35-3-165(b). United States v. Hinton, 676 Fed. Appx. 842 (11th Cir. 2017).

Rape defendant, from whom DNA sample was taken while he was on probation for earlier misdemeanor convictions, did not have right of refusal to provide DNA sample under statute governing collection of DNA samples from convicted persons; statutory provisions addressing refusal applied only to offenders serving sentences of probation or confinement on the effective date of the statute, and defendant was convicted of the misdemeanor offenses after effective date. Code 1975, § 36–18–25(a, b, d). D.B. v. State, 861 So. 2d 4 (Ala. Crim. App. 2003), cert. denied, 861 So. 2d 21 (Ala. 2003).

Defendant was not properly included in class of criminals required to submit a DNA sample under DNA Database and Databank Act, thus requiring reversal of order requiring him to submit to DNA testing, as defendant was not legally serving sentence of imprisonment, probation, parole, or other form of supervision on effective date of Act. N.J.S.A. 53:1-20.20, subd. g. State v. Crawford, 379 N.J. Super. 250, 877 A.2d 356 (App. Div. 2005).

Statute requiring collection of DNA samples from certain offenders applied retroactively to offenders who were in custody of Department of Rehabilitations and Correction after a specified date as a result of conviction for one of several specified offenses; statute was not limited in its application to only offenders who were convicted of one of those offenses after that date. NDCC 31–13–03. State v. Norman, 2003 ND 66, 660 N.W.2d 549 (N.D. 2003).

Issue of whether statutory amendment applied retroactively to require defendant, who was serving term of community control for driving under the influence of alcohol or drugs (DUI) conviction, to provide probation office with a DNA specimen, was not rendered moot when the statute was later amended to make it expressly retroactive; the action underlying the case concerned whether defendant was required to submit a DNA specimen under version of the statute in effect while he was still on community control, such that the actual controversy over whether the intermediate version of the statute applied remained to be resolved. (Per Moyer, C.J., with two justices concurring and one justice concurring in syllabus and judgment only.) R.C. § 2901.07. State v. Consilio, 114 Ohio St. 3d 295, 2007-Ohio-4163, 871 N.E.2d 1167 (2007).

Amendment to statute governing DNA testing of prisoners, extending requirement of DNA testing for persons on supervised release to include persons convicted of driving under the influence of alcohol or drugs (DUI), was not explicitly made retroactive by the General Assembly, and thus did not apply to defendant who was on community control for DUI conviction on effective date of the amendment and who completed community control prior to a subsequent amendment making the changes retroactive. (Per Moyer, C.J., with two justices concurring and one justice concurring in syllabus and judgment only.) R.C. § 2901.07(B)(3)(a). State v. Consilio, 114 Ohio St. 3d 295, 2007-Ohio-4163, 871 N.E.2d 1167 (2007).

Inmates, who sought order directing Department of Corrections (DOC) to retrieve and destroy all DNA samples, fingerprints and related documents attributable to them, were subject to DNA Act and were required to submit DNA samples; although inmates contended that General Assembly did not intend DNA Act to be retroactive to persons convicted of violent offense, but only to those persons convicted of sexually violent offense, inmates fit within general rule section of Act, which required person who was convicted for felony sex offense or other specified offense and was or remained incarcerated on or after effective date Act to have DNA sample drawn. 42 Pa.C.S.A. §§ 4701—4741. El v. Mechling, 848 A.2d 1094 (Pa. Commw. Ct. 2004).

Amendment to DNA statute requiring that offenders "paroled on or after" statute's effective date submit DNA sample applied to defendant who was paroled on life sentence for murder prior to effective date of amendment; when read in its entirety, Act was intended to require all parolees to submit to DNA testing, with goal of creating extensive DNA

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

database. Code 1976, § 23-3- 620(E). Cannon v. South Carolina Dept. of Probation, 361 S.C. 425, 604 S.E.2d 709 (Ct. App. 2004).

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§ 23. Type of sample to be taken

[Cumulative Supplement]

The following authority adjudicated whether a prisoner has the right to dictate the type of sample to be taken for DNA testing.

CUMULATIVE SUPPLEMENT

Cases:

Obtaining defendant's saliva for DNA profile via use of a swab was not unreasonable, even if it was not the least intrusive means. U.S.C.A. Const.Amend. 4; K.S.A. Const.Bill of Rights, § 15. State v. Glynn, 166 P.3d 1075 (Kan. Ct. App. 2007).

Department of Public Safety and Corrections was entitled to collect sample of prisoner's DNA for state's database by method other than use of buccal swab; department regulation authorized buccal swab when warden was required to "employ reasonable force as necessary to obtain a sample," regulation otherwise mandated warden obtain DNA sample without reference to method of collection, and wardens did not have to employ reasonable force to obtain DNA sample from prisoner, and thus, use of blood collection kit was appropriate method of collecting DNA sample and Department's decision to collect sample by drawing blood was in conformity with regulation. LSA–R.S. 15:609. Samuels v. Goodwin, 950 So. 2d 736 (La. Ct. App. 1st Cir. 2006).

The statute which mandated that prisoners provide samples "appropriate for DNA testing" did not give inmate option to dictate the type of sample to be taken, and therefore the prison staff had authority to require a blood sample, where blood sample was appropriate for DNA testing. McKinney's Executive Law § 995–c(3). Lunney v. Goord, 736 N.Y.S.2d 718 (App. Div. 3d Dep't 2002).

Cheek swabbing is a lawful means of collecting DNA samples under statute providing for collecting DNA samples from felony offenders; blood sampling is not the sole means of DNA extraction under the statute. West's RCWA 43.43.754. State v. Davis, 104 P.3d 11 (Wash. Ct. App. Div. 1 2004).

A cheek swab was a permissible method of obtaining a biological sample from a convicted felon for purposes of DNA identification analysis; although the regulation enacted to implement the relevant statute referred specifically to blood samples, those references simply clarified that blood samples, when taken, were to be handled by the protocol for other biological samples, and did not restrict the means of collection of samples. West's RCWA 43.43.754; WAC 446–75–060. State v. S.S., 94 P.3d 1002 (Wash. Ct. App. Div. 1 2004).

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§ 24. Admissibility of DNA database evidence

[Cumulative Supplement]

The following authority considered the admissibility of DNA database evidence.

CUMULATIVE SUPPLEMENT

Cases:

DNA profile evidence taken from defendant's blood samples pursuant to the DNA and Forensic Identification Data Base and Data Bank Act of 1998, when he was a state prisoner, was admissible in defendant's murder prosecution and did not violate his constitutional rights; individuals who were required to give samples had been found guilty beyond a reasonable doubt of serious crimes, society had a vastly increased interest in the identities of such individuals, and these individuals had forfeited any legitimate expectation of privacy in their identities. U.S. Const. Amend. IV; West's Ann. Cal. Penal Code §§ 295 et seq. People v. Adams, 115 Cal. App. 4th 243, 9 Cal. Rptr. 3d 170 (6th Dist. 2004), as modified, (Feb. 5, 2004).

Juvenile probation officer's violation of juvenile DNA collection statute in taking a cheek swab from defendant as a juvenile on deferred adjudication did not require suppression of the DNA test results that were used to link defendant to a later carjacking when he was an adult, in prosecution for criminal mischief, absent showing that the juvenile probation officer's violation of the statute was willful and recurrent. Colo. Rev. Stat. Ann. § 19-2-925.6(1). People v. Casillas, 2015 COA 15, 2015 WL 795765 (Colo. App. 2015).

State was not prohibited from retaining in its database the DNA profile of defendant after he had been acquitted of a crime, and then using the profile in a subsequent homicide investigation, even if the state's statutory scheme required the removal of defendant's DNA profile upon his acquittal, where there was no mechanism set forth by which the state was automatically notified that defendant's rape conviction had been overturned, and it was the responsibility of defendant to notify the state of his acquittal and to seek expungement of the DNA profile. R.C. §§ 109.573, 2901.07. State v. Emerson, 2012-Ohio-5047, 981 N.E.2d 787 (Ohio 2012), petition for cert. filed (U.S. Jan. 30, 2013).

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§ 25. Application of statue to repeat offender

[Cumulative Supplement]

The following authority adjudicated whether a defendant who had already supplied a DNA sample in another case could be ordered to submit an additional DNA sample under the applicable statute.

CUMULATIVE SUPPLEMENT

Cases:

Texas prisoner's prior Georgia conviction for second degree burglary of habitation was qualifying offense, within meaning of Texas statute authorizing collection of DNA sample from certain offenders, even if conviction was only for

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

misdemeanor. V.T.C.A., Government Code § 411.148(a); V.T.C.A., Penal Code § 30.02(c)(2). Fuhrman v. Dretke, 442 F.3d 893 (5th Cir. 2006).

Defendant, upon his conviction and sentence for theft of services, was not required to provide additional DNA sample to Division of Criminal Justice Services (DCJS) for entry into computerized state DNA identification index, even though he was designated offender based on his crime of conviction and sentence, where defendant previously had been convicted of felonies for which his DNA sample was collected, so that collecting additional sample would not provide any additional information beyond that obtained with his prior samples. McKinney's Executive Law §§ 995–c, 995(7). People v. Husband, 954 N.Y.S.2d 856 (City Crim. Ct. 2012).

Trial court had authority to order defendant to submit DNA sample even though defendant had already supplied sample in another case; statute governing DNA collection requirements made no exception for persons who had already submitted DNA samples. W.S.A. 973.047. State v. Jones, 2004 WI App 212, 689 N.W.2d 917 (Wis. Ct. App. 2004).

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§ 26. Effect of conviction for attempt

The following authority adjudicated whether a conviction for an attempted crime constituted a sufficient offense within the meaning of the applicable DNA database statute to require the individual convicted to supply a sample.

Inmate convicted of attempted murder in the first degree was not a person convicted of a violent offense for purposes of Missouri's DNA profiling system, and thus statute did not authorize the collection of inmate's DNA sample; statute did not include attempted murder in the first degree as a violent offense. V.A.M.S. § 650.055. Clevenger v. Gartner, 392 F.3d 977 (8th Cir. 2004)

§ 27. Notice to designated offenders to provide sample

[Cumulative Supplement]

The following authority adjudicated whether the state complied with applicable statutes or regulations governing the procedures for notifying designated offenders of the requirement to provide a DNA sample.

CUMULATIVE SUPPLEMENT

Cases:

Commissioner of state division of criminal justice services complied with regulations governing procedures for notifying designated offenders of requirement to provide deoxyribonucleic acid (DNA) sample by providing qualifying offender with written notice that he had to give DNA sample. 9 NYCRR 6191.3(a). Saladeen v. Parker, 791 N.Y.S.2d 663 (App. Div. 3d Dep't 2005).

Trial court's error in failing to notify defendant that he was required to submit to DNA testing as part of sentence for robbery conviction was harmless and did not prejudice defendant; purpose of DNA testing statute was to facilitate the DNA testing of felony offenders, and statute did not confer any substantive rights on defendant. Ohio Rev. Code Ann.

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

§ 2901.07(B). State v. Carter, 2017-Ohio-1328, 88 N.E.3d 513 (Ohio Ct. App. 1st Dist. Hamilton County 2017), appeal not allowed, 150 Ohio St. 3d 1444, 2017-Ohio-7843, 82 N.E.3d 1176 (2017).

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§ 28. Sample derived from post-conviction DNA testing order

[Cumulative Supplement]

The following authority considered whether a DNA sample derived from a post-conviction order for DNA testing had to be provided for inclusion in the state DNA data bank.

CUMULATIVE SUPPLEMENT

Cases:

Post–conviction court had statutory duty, in entering final written order granting motion for DNA testing, to order that sample be provided to state bureau of investigation for inclusion in state DNA data bank. West's Ga.Code Ann. § 5–5– 41(c)(9). State v. Clark, 615 S.E.2d 143 (Ga. Ct. App. 2005).

Under totality of the circumstances, defendant's blood draw and its subsequent analysis were reasonable; defendant pled guilty and was convicted of attempted theft of property valued over $10,000, a felony, and the trial court ordered defendant to provide a biological specimen for purpose of DNA analysis, defendant submitted to blood draw and signed consent form while imprisoned on attempted theft charge, defendant's blood sample was uploaded into Combined DNA Index System (CODIS), and the next day, CODIS produced report indicating DNA match between defendant and DNA evidence collected from pantyhose of rape victim. West's T.C.A. § 40–35–321(d)(1) (2003). State v. Cannon, 254 S.W.3d 287 (Tenn. 2008).

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§ 29. Effect of guilty plea

[Cumulative Supplement]

The following authority considered the effect of the defendant's guilty plea on the requirement, under state DNA database statutes, that the defendant submits a DNA sample.

CUMULATIVE SUPPLEMENT

Cases:

Assault and battery by means of dangerous weapon was "punishable by imprisonment in state prison" for up to ten years, and thus, defendant's guilty plea to that offense subjected him to requirement to submit DNA sample to state DNA database, regardless that defendant was charged by criminal complaint in district court, and therefore, that conviction

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

could not have resulted in incarceration in state prison. M.G.L.A. c. 22E, § 3; c. 265, § 15A(b). Com. v. Smith, 444 Mass. 497, 829 N.E.2d 1090 (2005).

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§ 29.5. Condition of release

[Cumulative Supplement]

The following authority considered the construction and application of a state DNA database statute requiring the collection of a DNA sample as a condition of release.

CUMULATIVE SUPPLEMENT

Cases:

Fact that defendant was ordered to be released from prison on unrelated charges based on a trial court's conclusion that confinement portion of his sentence had expired did not bar State from collecting DNA sample from defendant in connection with his release which was then used to identify defendant as the perpetrator of an earlier rape and kidnapping, so as to warrant exclusion of the DNA evidence from the ensuing rape and kidnapping trial as fruit of the poisonous tree; release order did not establish that defendant's continuing detention was illegal, and collection of DNA was not a result of any illegal detention, as it would have occurred whenever he was released from prison. U.S.C.A. Const.Amend. 4; West's Ga.Const. Art. 1, § 1, Par. 13; O.C.G.A. § 24–4–60 (2003). Leftwich v. State, 299 Ga. App. 392, 682 S.E.2d 614 (2009).

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[END OF SUPPLEMENT]

§ 30. Condition of parole

[Cumulative Supplement]

The following authority considered whether requiring DNA testing as a condition of parole violated a state DNA database statute.

CUMULATIVE SUPPLEMENT

Cases:

Requiring DNA testing as a condition of parole did not violate the DNA Database law; although law set forth one class of people subject to testing, it did not forbid other groups from being tested. McKinney's Executive Law § 995–c(3). Gallo v. Pataki, 831 N.Y.S.2d 896 (Sup 2007).

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Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

[END OF SUPPLEMENT]

§ 31. Qualification to take sample

[Cumulative Supplement]

The following authority determined whether person who drew blood from defendant was statutory qualified to do so.

CUMULATIVE SUPPLEMENT

Cases:

Record supported a determination that person who drew blood from defendant while he was in prison, pursuant to statute requiring certain persons to submit blood samples for inclusion in DNA database system, was statutorily qualified to do so; defendant testified that person was a woman who worked at prison infirmary and looked like, he guessed, a nurse, and person signed blood-sample card and identified her agency name as "TTUHSC," which was presumably the Texas Tech University Health Science Center. V.T.C.A., Government Code §§ 411.146(a), 411.148(d, h) (2004). Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008).

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[END OF SUPPLEMENT]

§ 32. Monetary charge

[Cumulative Supplement]

The following authority addressed issues concerning a monetary charge related to the operation of state DNA database statutes.

CUMULATIVE SUPPLEMENT

Cases:

Monetary charge of $200 for indexing of defendant's DNA imposed at sentencing for drug offenses was not "fine," and therefore, defendant was not entitled to have charge credited by $5.00 for each day that he spent incarcerated prior to sentencing; charge was one-time fee that served to compensate State for professional services, and it did not serve any punitive purpose. S.H.A. 730 ILCS 5/5-4-3(j). People v. Johnson, 2011 IL 111817, 2011 WL 5999331 (Ill. 2011).

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[END OF SUPPLEMENT]

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

RESEARCH REFERENCES

West's Key Number Digest

• West's Key Number Digest, Constitutional Law 250.5

• West's Key Number Digest, Pardon and Parole 48.1

• West's Key Number Digest, Pardon and Parole 64.1

• West's Key Number Digest, Prisons 4(7)

• West's Key Number Digest, Searches and Seizures 14

• West's Key Number Digest, Searches and Seizures 78

Westlaw Databases

• Westlaw® Search Query: HE(DNA /P data!)

A.L.R. Library

• A.L.R. Index, Blood Tests

• A.L.R. Index, DNA

• A.L.R. Index, Information

• A.L.R. Index, Prisons and Prisoners

• A.L.R. Index, Privacy

• A.L.R. Index, Samples and Specimens

• A.L.R. Index, Search and Seizure

• Validity of DNA Indictments, 29 A.L.R.7th Art. 9

• Application of Crawford Confrontation Clause Rule to DNA Analysis and Related Documents, 17 A.L.R.7th

Art. 3

• Validity, Construction, and Application of State Statutes Eliminating, Extending, or Tolling Statute of

Limitations for Sexual Offense When DNA Can Provide Identity of Alleged Perpetrator, 16 A.L.R.7th Art. 7

• Construction and Application of Statutes Prohibiting Genetic Discrimination in Workplace, 6 A.L.R.7th Art. 2

• Sufficiency of Search Warrant for DNA Sample, 93 A.L.R.6th 275

• Validity, Construction, and Application of State Statutes and Rules Governing Requests for Postconviction

DNA Testing, 72 A.L.R.6th 227

• Construction and Application of U.S. Const. Art. I, § 10, cl. 1, and State Constitutional Provisions Proscribing

State Bills of Attainder, 63 A.L.R.6th 1

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

• Construction and Application of U.S. Const. Art. I, § 9, cl. 3, Proscribing Federal Bills of Attainder, 62 A.L.R.6th

517

• Qualification as Expert To Testify as to Findings or Results of Scientific Test Concerning DNA Matching, 38

A.L.R.6th 439

• DNA Evidence as Newly Discovered Evidence Which Will Warrant Grant of New Trial or Other Postconviction

Relief in Criminal Case, 125 A.L.R.5th 497

• Admissibility and Weight of Fingerprint Evidence Obtained or Visualized by Chemical, Laser, and Digitally

Enhanced Imaging Processes, 110 A.L.R.5th 213

• Admissibility or compellability of blood test to establish testee's nonpaternity for purpose of challenging testee's

parental rights, 87 A.L.R.4th 572

• Admissibility of DNA identification evidence, 84 A.L.R.4th 313

• Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person's

body, 41 A.L.R.4th 60

• Consumption or destruction of physical evidence due to testing or analysis by prosecution's expert as warranting

suppression of evidence or dismissal of case against accused in state court, 40 A.L.R.4th 594

• Admissibility, weight and sufficiency of Human Leukocyte Antigen (HLA) tissue typing tests in paternity cases,

37 A.L.R.4th 167

• Right of accused in state courts to have expert inspect, examine, or test physical evidence in possession of

prosecution—modern cases, 27 A.L.R.4th 1188

• Propriety of requiring suspect or accused to alter, or to refrain from altering, physical or bodily appearance,

24 A.L.R.4th 592

• Admissibility in criminal case of blood–alcohol test where blood was taken despite defendant's objection or

refusal to submit to test, 14 A.L.R.4th 690

• Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration,

during trial and in presence of jury, 3 A.L.R.4th 374

• Admissibility, weight, and sufficiency of blood–grouping tests in criminal cases, 2 A.L.R.4th 500

• Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d

325

• Admissibility, in criminal case, of statistical or mathematical evidence offered for purpose of showing

probabilities, 36 A.L.R.3d 1194

• Admissibility, as against hearsay objection, of report of tests or experiments carried out by independent third

party, 19 A.L.R.3d 1008

• Requiring submission to physical examination or test as violation of constitutional rights, 25 A.L.R.2d 1407

• Proof of identity of person or thing where object, specimen, or part is taken from a human body, as basis for

admission of testimony or report of expert or officer based on such object, specimen, or part, 21 A.L.R.2d 1216

• Validity, construction, and application of statute or ordinance regarding solicitation of persons to join an

organization or society or to pay membership fees or dues, 167 A.L.R. 697

• Right to cross-examine accused as to previous prosecution for, or conviction of, crime, for purpose of affecting

his credibility, 161 A.L.R. 233

• Statute conferring power upon administrative body in respect to the parole of prisoners, or the discharge of

parolees, as unconstitutional infringement of power of executive or judiciary, 143 A.L.R. 1486

• Duty of federal courts to follow decisions of state court as to state statute, which were influenced or determined

by erroneous view as to the federal statute or Constitution, 132 A.L.R. 923

• Political principles or affiliations as ground for refusal of government officials to file certificate of nomination

or take other steps necessary to representation of party or candidate upon official ticket, 130 A.L.R. 1471

• Validity of automobile parking ordinances or regulations, 130 A.L.R. 316

• Validity, construction, and application of regulations of business of building or construction contractors, 118

A.L.R. 676

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

• Constitutional prohibition of ex post facto laws as applicable to statutes relating to joinder of offenses or

defendants, 110 A.L.R. 1308

• Power of legislature to add to or make more onerous the conditions or limitations prescribed by Constitution

upon incurring public debts, 106 A.L.R. 231

• Right to cross-examine accused as to previous prosecution for or conviction of crime as affecting his credibility,

103 A.L.R. 350

• Anticipation of defense involving Federal Constitution or statute as supporting federal jurisdiction under statute

conferring such jurisdiction over causes of action arising under Federal Constitution or statute, 94 A.L.R. 711

• Constitutionality of statute which makes specified punishment or penalty mandatory and permits no exercise of

discretion on part of court or jury, 83 A.L.R. 1362

• Validity of statute providing for revocation of license of physician, surgeon, or dentist, 79 A.L.R. 323

• Validity of legislation directed against political, social, or industrial propaganda deemed to be of a dangerous

tendency, 73 A.L.R. 1494

• Constitutionality of curative statutes purporting to validate prior unconstitutional statutes, or statutes not

enacted in the manner prescribed by the Constitution, 70 A.L.R. 1436

• Judicial investigation of pardon by governor, 65 A.L.R. 1471

• Constitutional or statutory changes affecting grand jury or substituting information for indictment as an ex post

facto law, 53 A.L.R. 716

• Constitutionality of statute prescribing course of conduct for discharged convict, 38 A.L.R. 1036

• Constitutionality of statute providing for disbarment of attorney convicted of crime, 32 A.L.R. 1068

• Exclusion or deportation of alien because of political views or opinions, 12 A.L.R. 197

• Construction and Application of Federal Innocence Protection Act (IPA), 18 U.S.C.A. §§ 3600, 3600A, 52 A.L.R.

Fed. 2d 315

• Validity, Construction, and Application of DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C.A. §§

14135 et seq. and 10 U.S.C.A. § 1565, 187 A.L.R. Fed. 373

• Supreme Court's views on mandatory testing for drugs or alcohol, 145 A.L.R. Fed. 335

• Reliability of scientific technique and its acceptance within scientific community as affecting admissibility, at

federal trial, of expert testimony as to result of test or study based on such technique—modern cases, 105 A.L.R.

Fed. 299

• Physical examination of child's body for evidence of abuse as violative of Fourth Amendment or as raising

Fourth Amendment issue, 93 A.L.R. Fed. 530

Legal Encyclopedias

• Am. Jur. 2d, Constitutional Law § 644

• Am. Jur. 2d, Criminal Law §§ 995, 1157

• Am. Jur. 2d, Evidence § 574

• Am. Jur. 2d, Expert and Opinion Evidence § 300

• Am. Jur. 2d, Penal and Correctional Institutions §§ 98, 99

• Am. Jur. 2d, Searches and Seizures §§ 193–195

• C.J.S., Constitutional Law § 409

• C.J.S., Criminal Law § 769

• C.J.S., Evidence § 546(65)

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

• C.J.S., Searches and Seizures §§ 30, 103, 104

Trial Strategy

• Proof of Criminal Identity or Paternity Through Polymerase Chain Reaction (PCR) Testing, 36 Am. Jur. Proof

of Facts 3d 1

• Foundation for DNA Fingerprint Evidence, 8 Am. Jur. Proof of Facts 3d 749

• The Daubert Challenge to the Admissibility of Scientific Evidence, 60 Am. Jur. Trials 1

Law Reviews and Other Periodicals

• Connors, DNA Databases: The Case for the Combined DNA Index System (CODIS), 29 Wake Forest L. Rev.

889 (Fall 1994)

• Dadio, Maryland's DNA Data Base System and Repository: Does It Pass Constitutional Muster? 25 U. Balt.

L. Rev. 47 (Fall 1995)

• Deck, Prelude to a Miss: A Cautionary Note Against Expanding DNA Databanks in the Face of Scientific

Uncertainty, 20 Vt. L. Rev. 1057 (Summer 1996)

• Donnelly, DNA Database Searches and the Legal Consumption of Scientific Evidence, 97 Mich. L. Rev. 931

(February 1999)

• Hibbert, DNA Databanks: Law Enforcement's Greatest Surveillance Tool? 34 Wake Forest L. Rev. 767 (Fall

1999)

• Huseman, Rule 706 and the DNA Database: Future Directions in DNA Evidence, 22 Okla. City U. L. Rev.

397 (Spring 1997)

• Markett, Genetic Diaries: An Analysis of Privacy Protection in DNA Data Banks, 30 Suffolk U. L. Rev. 185

(Spring 1996)

• Yee, Criminal DNA Data Banks: Revolution for Law Enforcement or Threat to Individual Privacy? 22 Am. J.

Crim. L. 461 (Winter 1995)

Footnotes 1 The application of general prison or other regulations in the context of the enforcement of DNA

database statutes is beyond the scope of this annotation. As to the rights of prisoners in general, see 60 Am Jur 2d, Penal and Correctional Institutions §§ 26–110.

2 See generally Admissibility of DNA identification evidence, 84 A.L.R.4th 313.

3 As to official immunity, generally, see 63C Am Jur 2d, Public Officers and Employees §§ 301–364.

4 See Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 76 A.L.R.5th 703(1999), petition for cert. filed, 68 U.S.L.W. 3153 (U.S. Aug. 20, 1999).

5 DNA Identification Act of 1994, codified at 42 U.S.C.A. §§ 14131-14134.

Validity, construction, and operation of state DNA database..., 76 A.L.R.5th 239...

6 See, e.g., Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), reh'g denied, (Jan. 17, 1997).

7 See, e.g., Schlicher v. (NFN) Peters, I & I, 103 F.3d 940 (10th Cir. 1996); and People v. Wealer, 264 Ill. App. 3d 6, 201 Ill. Dec. 697, 636 N.E.2d 1129 (2d Dist. 1994).

8 See Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis. 1996).

9 See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639, 4 I.E.R. Cas. (BNA) 224, 130 L.R.R.M. (BNA) 2857, 13 O.S.H. Cas. (BNA) 2065, 49 Empl. Prac. Dec. (CCH) ¶ 38791, 111 Lab. Cas. (CCH) ¶ 11001, 1989 O.S.H. Dec. (CCH) ¶ 28476 (1989).

10 See Schlicher v. (NFN) Peters, I & I, 103 F.3d 940 (10th Cir. 1996).

11 See, e.g., Mayfield v. Dalton, 901 F. Supp. 300 (D. Haw. 1995), judgment vacated on other grounds, 109 F.3d 1423, 37 Fed. R. Serv. 3d (LCP) 458 (9th Cir. 1997) (case involving a military program to collect DNA for use in identifying remains of soldiers killed in combat).

12 See, e.g., Schlicher v. (NFN) Peters, I & I, 103 F.3d 940 (10th Cir. 1996); Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994).

13 See Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), cert. denied, 119 S. Ct. 520, 142 L. Ed. 2d 431 (U.S. 1998).

14 See, e.g., Murneigh v. Gainer, 177 Ill. 2d 287, 226 Ill. Dec. 614, 685 N.E.2d 1357 (1997); and Dial v. Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999).

15 See, e.g., Dial v. Vaughn, 733 A.2d 1 (Pa. Commw. Ct. 1999).

16 See Murneigh v. Gainer, 177 Ill. 2d 287, 226 Ill. Dec. 614, 685 N.E.2d 1357 (1997).

17 See Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994) (class certification was appropriate for all inmates in North Carolina subject to statute requiring submission of blood samples for use in DNA databank). See also Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), as amended, (Apr. 27, 1992) (class action in which propriety of class certification was not addressed by the court).

18 See Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. W.D. 1997), reh'g and/or transfer denied, (Apr. 1, 1997) and transfer denied, (May 27, 1997) (prisoner challenged his disciplinary and administrative segregation, imposed under general prison regulations for the prisoner's refusal to provide the blood sample required by the state DNA database statute).

19 The court in Smith, which is outside the scope of the present annotation, held that a neutral law of general applicability does not violate the First Amendment right to the free exercise of religion.

21 While courts applying a traditional Fourth Amendment analysis may include prisoners' reduced expectations of privacy as one factor in the analysis, such courts do not premise their analysis on that reduced expectation, as do those courts in the cases collected in § 15 and applying the "prisoners' reduced privacy" doctrine.