On June 30, 2004, the Second District Appellate Court of Illinois upheld Section 5-4-3 of the Illinois Code of Corrections1 that mandates the collection of DNA samples from all convicted felons.2 In People v. Garvin, the court applied a balancing test to reach its holding that the statute did not violate the Fourth Amendment.3 As stated by the court in Garvin, all 50 states have enacted and upheld so called "genetic marker" testing statutes.4 Yet, these statutes have not been without their problems. Recent U.S. Supreme Court cases indicate that in some circumstances collection of DNA may be a violation of Fourth Amendment rights. These and other cases pose some interesting questions for the future of genetic marker testing laws. For example, what is the proper test to be applied in cases of this nature, what are the suspicion requirements for a search of this type, and what, if any, are the differences between the federal DNA Act and the state DNA acts? This paper will examine the recent Illinois case of People v. Garvin, which discussed the constitutionality of Illinois’ DNA Act, and a recent Ninth Circuit decision that discussed the constitutionality of the federal DNA Act. Taking into account the varying theories proposed by the respective courts, this paper will then examine the differences between the two courts’ rationales, and attempt to illustrate further and in what sense the laws may be forced to change.
II. Illinois and Genetic Marker Testing: The People of Illinois v. Garvin
Raymond E. Garvin was convicted of burglary and theft after a stipulated bench trial in DuPage County.5 As a result of these convictions, Garvin was further ordered to give a blood sample for genetic marker testing.6 Garvin appealed the trial court decision on several grounds, the one pertinent to this discussion being the constitutionality of 730 ILCS 5/5-4-3, or the genetic marker testing statute.7
On December 29, 2001, one Officer Henninger of the Franklin Park police department received a complaint from the Amoco gas station on Mannheim Road.8 The complainant claimed that there was a van in the parking lot of the gas station with plates that were stolen from his vehicle.9 When Henninger arrived at the Amoco, he reported that there was a white car and a CompUSA van in the parking lot with three men "in or around" the van.10 Officer Henninger ran the van’s plates and confirmed that the plates were stolen.11 Additionally, Henninger ran the vehicle identification number of the van, at which point the officer learned that the van was stolen as well.12 Officer Henninger approached and spoke to two of the men by the van.13 While speaking with them, the officer received a report that the Bensenville police department was searching for a white CompUSA van and a white Mercury Cougar suspected to have burglarized Emery Worldwide, a company in Bensenville, earlier that morning.14 Paul Coken, an employee of Emery, testified that at around 3:40 a.m. on December 29, 2001, he witnessed a white CompUSA van leaving his Emery’s loading dock.15 Coken notified police that several boxes of computer equipment had been taken from a truck on the Emery’s loading dock.16 Once Henninger had apprehended the CompUSA van, Coken was called and identified over $40,000 worth of computer equipment belonging to Emery Worldwide.17 Garvin’s wallet was found in the white CompUSA van, and he admitted to being in the area of Emery Worldwide earlier that morning.18
Following stipulated testimony from the involved police officers, the court found Garvin guilty of burglary and theft and ordered him to give a blood sample for genetic marking testing.19 On appeal, Garvin challenged two trial court holdings.20 The first of these dealt with the suppression of evidence, and the second with the constitutionality of genetic marker testing under 730 ILCS 5/5-4-3.21
B. Holding and Analysis
The Second District Appellate Court of Illinois held that the Illinois genetic marker statute was constitutional by adopting and applying a balancing test in which the government’s need for the testing is weighed against the citizen’s privacy rights and the intrusiveness of the test.22 The court noted that all 50 states have adopted genetic marking testing and that all of the courts to have heard cases like Garvin have held the statutes constitutional.23 All of the courts to hear these cases have chosen to analyze the issue utilizing either the balancing test used in Garvin or a special needs test.24 The special needs test is similar to the balancing test, but is analytically distinguishable by the fact that it allows the government’s interest to overcome a larger privacy concern if the test serves a governmental purpose "beyond normal law enforcement."25
In applying the balancing test, the Garvin court held that the State has an extremely strong interest in solving and successfully prosecuting crimes.26 Specifically, and perhaps more strongly, the State has a weighty interest in deterring recidivist criminal acts.27 DNA testing is an extremely useful tool for "identifying and eliminating potential suspects." In fact, the court likened DNA to a more accurate and conclusive form of fingerprinting.28 Running counter to these valid considerations are the privacy expectations of the felons. The court held that it is well settled that convicted persons have less privacy rights than do non-convicted persons, and furthermore, that once convicted, the felon’s identity becomes a matter of state interest.29 Additionally, once convicted, such persons have lost "any legitimate expectation of
privacy in the identifying information derived from the bodily sampling."30 Finally, the court stated that the injection of a needle to draw genetic information is a minimally invasive procedure and poses "no threat to the health or safety of the individual tested."31
III. Conflicting Views: U.S. v. Kincade
On Septermber 1, 1993, Thomas Kincade pled guilty to charges of armed robbery and the use of a firearm under 18 U.S.C. §§ 2113(a) and 924(c).32 Kincade was sentenced to 97 months on January 4, 1994 and was released on August 4, 2000.33 Under provisions of his sentence, Kincade was to be placed in supervised release for a period of three years.34 During this time, Kincade was ordered to obey the instructions of his probation officer and to refrain from committing any crimes.35 Pursuant to the DNA Act of 2000,36 the Probation Office instructed Kincade to submit to a drawing of his blood for purposes of genetic marker testing and placement in the FBI’s national DNA database, CODIS.37 Kincade refused based on constitutional claims and was convicted under the DNA Act of a class A misdemeanor.38 The district court, after rejecting Kincade’s constitutional claim, sentenced him to four months in custody and two years of supervised release after the custody period.39 Kincade appealed and his case was expedited to the Ninth Circuit.40
"We have long recognized that a ‘compelled intrusio[n] into the body for blood’ . . . must be deemed a Fourth Amendment search"41
The court’s analysis in Kincade centered around three arguments proffered by the government. First, that the taking of blood is no more intrusive than fingerprinting. Second, that the Fourth Amendment rights of parolees are minimal, and in the case of forced blood extractions, nonexistent. Finally, that the government’s interest in preventing, solving, and prosecuting future crimes outweighs the need for individualized suspicion.
In Kincade, the government pressed for the view that Garvin seems to stand for, that the taking of blood from anyone, let alone a prisoner or parolee, is no more intrusive than the taking of a fingerprint.42 The court rejected this notion for two reasons. First, a fingerprint is external to the individual and is displayed in public, whereas blood is neither. The court specifically holds that "[a]n individual cannot hold the expectation of privacy for this . . . category of information that he does for his internal properties, including blood."43 Second, the court held that the analogy between fingerprinting, while perhaps cogent, fails even to accomplish what the government had hoped it might because of the fact that fingerprints are also subject to Fourth Amendment regulation in any case.44 For example, the court points out that fingerprints cannot be taken arbitrarily, but must be taken either in the furtherance of a criminal investigation or under the authorization granted by probable cause or warrant.45 In Kincade’s case, there was no criminal investigation, probable cause, or warrant to authorize taking of a fingerprint, let alone blood. In fact, the court stated that law enforcement, in cases of forced blood extraction, is seeking to obtain evidence for future criminal investigations.46
The government next argued that parolees have minimal Fourth Amendment rights and that they have no right to Fourth Amendment protection when it comes to blood extraction under the DNA Act.47 In essence, this position indicates the government’s belief that parolees do not fall within the normal rule requiring probable cause, or the even less stringent standard, individualized suspicion. The court responded to this argument by holding that while it is true that parolees and convicts have fewer constitutional rights than normal citizens, their rights are not "extinguished."48 As a result, the court held that law enforcement must show individualized suspicion for blood sampling of parolees or probationers.
Finally, the court responded to the government’s contention that the need for DNA testing goes beyond the governmental need for normal law enforcement, and enters the realm of a "special need" under Justice Blackmun’s concurring opinion New Jersey v. T.L.O.49 Essentially, Justice Blackmun’s opinion carved out some circumstances in which even the low threshold, individualized suspicion requirement of Fourth Amendment searches could be waived.50 These circumstances are present when searches that would otherwise violate the Fourth Amendment are necessary because of a governmental need beyond that of normal law enforcement.51 Examples of special needs are urine testing for student athletes and searching employees’ bags to cut down on theft.52
In holding that DNA testing of parolees does not qualify as a special need, the Kincade court interpreted and applied two recent Supreme Court cases.53 In City of Indianapolis v. Edmond, the U.S. Supreme Court held that a highway checkpoint system using suspicionless vehicle searches for narcotics did not fall within the limited circumstances set forth in by Justice Blackmun in New Jersey v. T.L.O.54 In so holding, the court stated that they would not permit law enforcement to use a ‘general interest in crime control’ as a justification for suspicionless searches.55 In 2001, the Court upheld their decision in Edmond in Ferguson v. City of Charleston.56 In declaring the searches in Ferguson unconstitutional, the Court held that "the immediate objective of the [suspicionless] searches was to generate evidence for law enforcement purposes."57 Because both Edmond and Ferguson hold that a suspicionless search cannot fall into the special needs exception if the objective of said search was to generate evidence for general crime control or law enforcement purposes, the Kincade court was forced to examine the objective of the DNA testing.
The admitted purpose of genetic marker testing is to gather potential evidence for future cases for the purpose of general crime control.58 A DNA test of a convicted or paroled person is a suspicionless search as it has no purpose in current or prior crimes, but only on the expectation that some criminals will commit more crime in the future.59 Thus, the DNA testing is a suspicionless search that has its main objective in general crime control and investigation.60 As a result, the Kincade court held that DNA testing was unconstitutional.61
IV. Comments and Conclusion
The opinions in Garvin and Kincade offer an instructive look into the rationales behind mandatory DNA testing. For example, the Garvin court argued that DNA testing was supported by the public’s interest in deterring recidivism.62 Yet, it seems unlikely that a criminal would stop committing crimes solely because the state has his DNA. In fact, it seems much more probable that criminals would simply try to be more careful during the commission of crimes.
Another justification offered by the Garvin court is that DNA testing will assist in identifying suspects and determining guilt.63 While this is without a doubt true, there is a tendency on the part of the public and the state to lean heavily on DNA evidence, especially when there is a lack of other evidence to show guilt. We have all seen the mishandling of delicate blood, semen, and other potential DNA samples, and have witnessed the resulting difficulties, and in some cases, wrongly convicted defendants. Additionally, the Garvin court states that once convicted, a prisoner’s identity becomes a matter of state interest.64 Yet, in today’s world, one does not have to be a convicted felon for one’s identity to be a matter of state interest. With worldwide terrorism and the resulting questionable searches, seizures, and imprisonments, it does not seem far-fetched to foresee a day in which every citizen would be forced to submit to DNA testing. DNA testing presents a situation in which any person "subjected to such a search, in effect will have been compelled to provide evidence with respect to any and all crimes of which he may be accused, for the rest of his life."65
Finally, recent DNA collection legislation in several states has allowed states to collect DNA from people who have committed completely non-violent felonies, such as felonious possession of food stamps, and furthermore, the national database actually carries the profiles of people who have not even been convicted but were merely arrested in Louisiana, Texas or Virginia.66
As this paper was being prepared for publication, the Ninth Circuit granted rehearing en Banc in U.S. v. Kincade.67 After rehearing the case, the court overturned their prior decision by a vote of 5-4 and held that mandatory DNA testing was constitutional under the Fourth Amendment.68 The court simply changed its position and turned completely around from its previous stance. The court, having previously opined that parolees’ Fourth Amendment rights were sufficient to allow challenges to suspicionless searches, now stated that parolees did not have that right.69 The court also held that drawing blood was not invasive, that DNA was akin to a fingerprint, and that the special needs test was misapplied in their previous opinion.70 Although Judge Reinhart’s original opinion in Kincade was overturned, he continued to rail against his court by dissenting, along with three other justices, in the rehearing opinion.
The dissenting opinions in the second Kincade hearing are impassioned attacks on what those justices see as a theft of our freedom. As Justice Hawkins points out, the DNA testing may lead to more arrests, but then again, doing away with the warrant requirements would accomplish the same thing.71 Justice Reinhart, perhaps the most impassioned of the dissenters, points out in his conclusion, "[p]rivacy erodes first at the margins, but once eliminated, its protections are lost for good, and the resultant damage is rarely, if ever, undone."72
While there are differing methods to determine the constitutionality of mandatory DNA testing of convicted felons, there has been an agreement among almost all courts to have heard cases of this sort: mandatory DNA testing for convicts is constitutional under the Fourth Amendment. It seems that the question is less about whether DNA testing is constitutional and more about what the utilitarian benefits of said testing are. The Fourth Amendment gives every man and woman a freedom from searches by the government that are based solely on a potential benefit to society without any proof or suspicion. DNA testing for low level and nonviolent crime is a violation of that right, and although it is a right being stolen from criminals now, it may be the general population that feels the sting of a needle in the future.
1 730 ILCS 5/5-4-3
2 People v. Garvin, 2004 WL 1490334 (Ill.App.2 Dist. 2004).
3 Id. at *7-9.
4 Id. at *6.
5 People v. Garvin, 2004 WL 1490334 at *1(Ill.App.2 Dist. 2004).
11 Garvin, supra note 2, at *2.
17 Garvin, supra note 2, at *1-*2.
18 Garvin, supra note 2, at *2.
22 People v. Garvin, 2004 WL 1490334, *7 (Ill.App.2 Dist 2004).
23 Id. at *6.
24 Id. at *7.
28 Garvin, supra note 2, at *8
31 Id., See also People v. Adams, 149 Ill.2d 331, 346 (1992).
32 U.S. v. Kincade, 345 F.3d 1095, 1098 (9th Cir. 2003).
36 42 U.S.C. 14135 et.al.
37 U.S. v. Kincade, 1098
38 42 U.S.C. 14135a(a)(5)(A).
39 Kincade, supra note 32, at 1098-99.
41 U.S. v. Kincade, at 1099, citing to Schmerber v. California, 384 U.S. 757 (1966).
42 See Garvin, supra note 2, at *7; see also Kincade, supra note 32, at 1100.
43 Kincade, supra note 32, at 1100.
44 Id. at 1101.
49 New Jersey v. T.L.O., 469 U.S. 325 (1985).
50 U.S. v. Kincade, 345 F.3d 1095, 1104-05.
53 Id. at 1105-09.
54 City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
55 Id. at 39.
56 Ferguson v. City of Charleston, 532 U.S. 67 (2001).
57 Id. at 83.
58 See U.S. v. Kincade, 345 F.3d 1095 (9th Cir. 2003); People v. Garvin, 2004 WL 1490334 (2004).
59 See generally Edmond, supra note 54; see also Kincade, supra note 32.
60 Kincade, supra note 32, at 1107.
61 Id. at 1114.
62 People v. Garvin, 2004 WL 1490334, *8 (2004).
63 Id. at *7.
65 Kincade, supra note 32, at 1113.
66 U.S. v. Kincade, 379 F.3d 813, 848 (9th Cir. 2004).
71 Id. at 876.
72 U.S. v. Kincade, 379 F.3d 813 (9th Cir. 2004).
Ryan Armour is a third year law student at the Northern Illinois College of Law. He is a member of the Board of Editors of the Law Review and is currently employed by the Northern Illinois University Office of General Counsel as a Rule 711 licensed student.