Mario W. v. Hon. kaipio/state

SUPREME COURT OF ARIZONA
En Banc
MARIO W., ) Arizona Supreme Court
) No. CV-11-0344-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) Nos. 1 CA-SA 11-0016
THE HONORABLE THOMAS KAIPIO, ) 1 CA-SA 11-0020
COMMISSIONER OF THE SUPERIOR ) 1 CA-SA 11-0025
COURT OF THE STATE OF ARIZONA, ) 1 CA-SA 11-0031
in and for the County of ) 1 CA-SA 11-0032
Maricopa, ) 1 CA-SA 11-0042
) 1 CA-SA 11-0043
Respondent Commissioner, ) (Consolidated)
)
) Maricopa County
STATE OF ARIZONA, ) Superior Court
) Nos. JV-181946
Real Party in Interest. ) JV-181821
__________________________________) JV-555266
BRADLEY W., ) JV-555329
) JV-555361
Petitioner, ) JV-555390
) JV-555429
v. )
)
THE HONORABLE THOMAS KAIPIO, )
COMMISSIONER OF THE SUPERIOR ) O P I N I O N
COURT OF THE STATE OF ARIZONA, )
in and for the County of )
Maricopa, )
)
Respondent Commissioner, )
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
__________________________________)
ALEXIS A., )
)
Petitioner, )
)
v. )
)
THE HONORABLE MARK BRAIN, )
COMMISSIONER OF THE SUPERIOR )
COURT OF THE STATE OF ARIZONA, )
in and for the County of )
Maricopa, )
)
Respondent Commissioner, )
)
THE STATE OF ARIZONA, )
)
Real Party in Interest. )
__________________________________)
NOBLE B., )
)
Petitioner, )
)
v. )
)
THE HONORABLE THOMAS KAIPIO, )
JUDGE OF THE SUPERIOR COURT OF )
THE STATE OF ARIZONA, in and for )
the County of Maricopa, )
)
Respondent Judge, )
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
__________________________________)
BAILEY J., )
)
Petitioner, )
)
v. )
)
THE HONORABLE MARK F. ACETO, )
JUDGE OF THE SUPERIOR COURT OF )
THE STATE OF ARIZONA, in and for )
the County of Maricopa, )
)
Respondent Judge, )
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
__________________________________)
DEVON C., )
)
2
Petitioner, )
)
v. )
)
THE HONORABLE PETER A. THOMPSON, )
COMMISSIONER OF THE SUPERIOR )
COURT OF THE STATE OF ARIZONA, )
in and for the County of )
Maricopa, )
)
Respondent Commissioner, )
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
__________________________________)
ERIC R., )
)
Petitioner, )
)
v. )
)
THE HONORABLE THOMAS KAIPIO, )
COMMISSIONER OF THE SUPERIOR )
COURT OF THE STATE OF ARIZONA, )
in and for the County of )
Maricopa, )
)
Respondent Commissioner, )
)
STATE OF ARIZONA, )
)
Real Party In Interest, )
__________________________________)
Special Action from the Superior Court in Maricopa County
The Honorable Thomas A. Kaipio, Judge Pro Tem
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
228 Ariz. 207, 265 P.3d 389 (App. 2011)
VACATED
________________________________________________________________
3
CHRISTINA PHILLIS, MARICOPA COUNTY PUBLIC ADVOCATE Mesa
By David Katz, Deputy Public Advocate
Aaron Jason Max, Deputy Public Advocate
Colleen Engineer, Deputy Public Advocate
Devra N. Ellexson, Deputy Public Advocate
Suzanne Sanchez, Deputy Public Advocate
Andrew Meissen, Deputy Public Advocate
Attorneys for Mario W., Bradley W., Alexis A.
Bailey J., Devon C., Eric R., and Noble B.
WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By Linda Van Brakel, Deputy County Attorney
Attorneys for State of Arizona
ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE Chandler
By David J. Euchner
Julie M. Levitt-Guren
Attorneys for Amicus Curiae Arizona Attorneys for Criminal
Justice
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1 Arizona law requires juveniles charged with certain
offenses and summoned to appear at an advisory hearing to submit
to the investigating law enforcement agency “a sufficient sample
of buccal cells or other bodily substances for deoxyribonucleic
acid [DNA] testing and extraction.” A.R.S. § 8-238(A). The
penalty for failure to comply is revocation of release pending
adjudication. § 8-238(B). In this case we consider whether the
statutory scheme violates the Fourth Amendment prohibition
against unreasonable searches and seizures.
I.
¶2 Seven juveniles (collectively, the “Juveniles”) were
separately charged with violations of offenses specified in § 8-
4
238(A). Each was summoned to an advisory hearing, released, and
ordered to submit a buccal sample to law enforcement within five
days. In each case, the superior court rejected Fourth
Amendment objections to the sampling order.
¶3 The Juveniles then jointly filed a special action in
the court of appeals. That court accepted jurisdiction and a
divided panel held that requiring the submission of DNA samples
from five juveniles for whom a probable cause determination has
been made does not violate the Fourth Amendment. Mario W. v.
Kaipio, 228 Ariz. 207, 210 ¶ 1, 265 P.3d 389, 392 (App. 2011).
The majority reasoned that a judicial finding of probable cause
is a “watershed event” that reduced these juveniles’
expectations of privacy, id. at 214-15 ¶ 22, 265 P.3d at 396-97,
and that the State’s “interest in identifying these juveniles
outweighs their right to privacy,” id. at 217 ¶ 30, 265 P.3d at
399.1 A different 2-1 majority, however, held that the Fourth
Amendment forbids the DNA sampling of the two juveniles for whom
no probable cause determination has yet been made. Id. at 210
¶ 2, 265 P.3d at 392.2
1
The dissenting judge argued that DNA sampling is a
suspicionless search barred by the Fourth Amendment. Id. at 222
¶ 57, 265 P.3d at 404 (Norris, J., dissenting in part, but
concurring in the result as to the two juveniles).
2
The dissenting judge argued that there was no need to reach
the constitutional question because, in her view, § 8-238 does
not compel submission of a sample before a probable cause
5
¶4 The State and two of the Juveniles petitioned for
review. We granted both petitions to address a recurring legal
issue of statewide importance. We exercise jurisdiction
pursuant to Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. § 12–120.24 (2003).
II.
¶5 After a buccal sample is obtained under A.R.S. § 8-
238(A), the investigating law enforcement agency transmits it to
the Department of Public Safety (“DPS”), where it is analyzed
and a DNA profile produced. §§ 8-238(C), 8-238(D), 13-
610(H)(1), (2). The profile is entered into an Arizona DNA
identification system, see § 41-2418 (establishing state
system), and a national database, the Combined DNA Index System
(CODIS), see 42 U.S.C. § 14132(a) (establishing national
database). See generally Haskell v. Harris, 669 F.3d 1049,
1051-52 (9th Cir. 2012) (discussing interface of California
database and CODIS). The sample and profile may then be used,
inter alia, “[f]or law enforcement identification purposes.”
A.R.S. § 13-610(I)(1).3 A juvenile not ultimately found
determination. Id. at 219-20 ¶¶ 39-43, 265 P.3d at 401-02(Orozco, J., concurring in part and dissenting in part).
3
Other provisions of Arizona law not at issue today require
DNA profiling of various non-juveniles, including convicted
felons, those arrested for certain crimes, probationers, and
parolees. See A.R.S. § 13-610(A)–(D), (K), (L).
6
delinquent “may petition the superior court” to expunge the
profile and sample from the Arizona system. A.R.S. § 13-610(M);
see also 42 U.S.C. § 14132(d)(2) (providing for expungement from
CODIS); A.R.S. § 13-610(J) (providing for expungement when an
adjudication is overturned on appeal or in a postconviction
relief proceeding).
III.
A.
¶6 Before addressing the constitutional claims raised by
the Juveniles, it is appropriate to begin by noting what is not
at issue in this case.
¶7 First, the parties agree that DNA sampling involves a
search or seizure governed by the Fourth Amendment.
¶8 Second, it is common ground that none of the Juveniles
had been adjudicated delinquent for the charged crimes when
ordered to submit a buccal cell sample. If such an adjudication
is made, a statute not at issue today, A.R.S. § 13-610(O)(2),
governs DNA sampling and profiling. Neither the State nor the
Juveniles contest that post-adjudication sampling and profiling
are constitutional. See In re Leopoldo L., 209 Ariz. 249, 250
¶ 1, 99 P.3d 578, 579 (App. 2004) (finding post-adjudication
sampling and profiling constitutional); accord In re Lakisha M.,
882 N.E.2d 570, 582 (Ill. 2008); Petitioner F v. Brown, 306
S.W.3d 80, 93 (Ky. 2010); see also Wilson v. Collins, 517 F.3d
7
421, 423 (6th Cir. 2008) (upholding DNA profiling of convicted
felons); United States v. Amerson, 483 F.3d 73, 89 (2d Cir.
2007) (upholding DNA profiling of probationers); United States
v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004) (upholding DNA
profiling of conditional releasees).
¶9 Third, the State does not claim probable cause that a
DNA profile will provide evidence that any of these juveniles
committed the charged offenses. Nor does the State even
reasonably suspect that a juvenile committed another offense for
which the DNA profile might provide investigative assistance.
Cf. Hayes v. Florida, 470 U.S. 811, 817 (1985) (“[T]he Fourth
Amendment would permit seizures for the purpose of
fingerprinting, if there is reasonable suspicion that the
suspect has committed a criminal act, if there is a reasonable
basis for believing that fingerprinting will establish or negate
the suspect’s connection with that crime, and if the procedure
is carried out with dispatch.”); A.R.S. § 13-3905 (permitting
temporary detention for investigative fingerprinting upon
judicial order).
¶10 Fourth, although § 13-610(I)(1) permits use of the DNA
samples and resulting profiles for “law enforcement
identification purposes,” the State does not seek a profile
simply to identify any juvenile in the normally accepted use of
that term. Put differently, the State does not claim that it
8
needs a DNA profile in any of the cases before us to determine
who the charged juvenile is. Rather, the State argues that the
statutory phrase includes not only authentication of a
juvenile’s identity, but also use of the profile to investigate
whether the juvenile has committed other uncharged crimes.
Indeed, given that the DNA profiles are placed both in Arizona
and national databases, and are available to law enforcement
officers throughout the country for investigative purposes, it
is plain that the legislature intended the profile to be used
for purposes other than simply confirming the name of the person
charged with the current crime.4
¶11 Finally, the Juveniles do not contest the efficacy of
the DNA database systems – both state and national – in solving
crimes and providing unique identification information about an
individual. But neither does the State claim – nor does any
case suggest - that these law enforcement goals would justify
DNA sampling and profiling of ordinary citizens. See Haskell,
669 F.3d at 1058 (majority opinion) (assuming
4
“The CODIS system enables federal, state, and local crime
labs to exchange and compare DNA profiles electronically,
thereby linking crimes to each other and to convicted
offenders.” Tracey Maclin, Is Obtaining an Arrestee’s DNA A
Valid Special Needs Search Under the Fourth Amendment? What
Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics
165, 166 (2006) (internal quotation marks omitted). CODIS is
currently linked “to all fifty states as a national index
linking databases at the local, state and national levels.” Id.9
unconstitutionality of such a procedure); id. at 1061 (noting
that the majority and the dissent agreed on the
unconstitutionality of such a procedure).
B.
¶12 We turn then to the issue at hand: May the State,
consistent with the Fourth Amendment, compel these Juveniles to
submit to DNA extraction and profiling as a condition of
release?
¶13 The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
It has been long established that warrantless searches “are per
se unreasonable under the Fourth Amendment – subject only to a
few specifically established and well-delineated exceptions.”
Katz v. United States, 389 U.S. 347, 357 (1967). Supreme Court
jurisprudence also long taught that even searches excepted from
the warrant requirement could be conducted only on probable
cause. See Dunaway v. New York, 442 U.S. 200, 208 (1979)
(discussing case law). In 1968, however, the Court held that
the Fourth Amendment allowed temporary seizures based on
10
something less than probable cause – reasonable suspicion.
Terry v. Ohio, 392 U.S. 1, 25-31 (1968).
¶14 The Court has also upheld searches in certain
circumstances absent any showing of probable cause or reasonable
suspicion. In Samson v. California, the Court held that a
search mandated as a condition of parole does not violate the
Fourth Amendment. 547 U.S. 843, 847 (2006). Although the Court
might have premised Samson on a consent theory, it instead
employed a “totality of the circumstances test” in finding the
search reasonable. Id. at 848-53. Under that test, “[w]hether
a search is reasonable is determined by assessing, on the one
hand, the degree to which it intrudes upon an individual’s
privacy, and on the other, the degree to which it is needed for
the promotion of legitimate governmental interests.” Id. at 848
(citation and internal quotation marks omitted). The Court had
earlier employed a totality of the circumstances analysis to
uphold the suspicionless search of a probationer. United States
v. Knights, 534 U.S. 112, 118 (2001). This Term, the Court
upheld strip searches of jail detainees without any showing of
probable cause or reasonable suspicion. Florence v. Bd. of
Chosen Freeholders, 132 S. Ct. 1510, 1518-23 (2012). Although
not explicitly employing a totality of the circumstances test,
Florence also balanced the government’s interests in safety and
11
orderly jail administration against the reduced privacy
interests of detainees. Id.¶15 No Arizona or United States Supreme Court case,
however, addresses the constitutionality of suspicionless pre-
conviction DNA testing. The case law elsewhere is sharply
divided. Maryland’s highest court recently found that DNA
profiling of arrestees violated the Fourth Amendment. King v.
State, 42 A.3d 549, 580 (Md. 2012). Other courts have also so
held, distinguishing the post-conviction cases because arrestees
have a higher expectation of privacy than convicted felons.
See, e.g., Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir.
2009); In re Welfare of C.T.L., 722 N.W.2d 484, 492 (Minn. Ct.
App. 2006).
¶16 Several other courts, however, have found DNA
profiling of arrestees reasonable under the Fourth Amendment.
See, e.g., Haskell, 669 F.3d at 1065 (2-1 decision); United
States v. Mitchell, 652 F.3d 387, 416 (3d Cir. 2011) (en banc)
(8-6 decision); United States v. Pool, 621 F.3d 1213, 1226 (9th
Cir. 2010), reh’g en banc granted, 646 F.3d 659 (9th Cir.), and
vacated, 659 F.3d 761 (9th Cir. 2011); Anderson v. Commonwealth,
650 S.E.2d 702, 705-06 (Va. 2007). These courts have found that
the government’s interests in identifying arrestees and solving
crimes outweigh an arrestee’s diminished expectations of
privacy.
12
¶17 Most courts considering the constitutionality of DNA
sampling and profiling have employed the totality of the
circumstances test. See Mitchell, 652 F.3d at 403 (“We and the
majority of circuits — the First, Fourth, Fifth, Sixth, Eighth,
Ninth, Eleventh, and District of Columbia — have endorsed a
totality of the circumstances approach.”). But see Amerson, 483
F.3d at 78 (applying “special needs test”); Green v. Berge, 354
F.3d 675, 677-78 (7th Cir. 2004) (same). The parties do not
dispute the applicability of the totality of the circumstances
test, and we therefore analyze the Arizona scheme under that
rubric.
C.
¶18 We begin by recognizing that the Arizona statutory
scheme involves two separate intrusions on a juvenile’s privacy.
First, the State physically seizes a buccal cell sample from the
juvenile. Second, it processes the seized cells and extracts a
DNA profile. See State v. Gomez, 226 Ariz. 165, 166 n.1 ¶ 3,
244 P.3d 1163, 1164 n.1 (2010) (describing process of sampling);
1 Kenneth S. Broun et al., McCormick on Evid. § 205 (6th ed.
2010) (describing process of extracting profiles from DNA
samples). In Mitchell, the Third Circuit found that DNA
sampling and profiling involved two searches — “the physical
collection of the DNA sample” and the “processing of the DNA
sample.” 652 F.3d at 406-07. Other courts have reached the
13
same conclusion. See Amerson, 483 F.3d at 84-85; State v.
Martin, 955 A.2d 1144, 1153-54 (Vt. 2008).
¶19 This approach is consistent with precedent outside the
DNA context. In United States v. Chadwick, for example, the
Supreme Court analyzed separately the legality of the seizure of
a steamer trunk and the later opening of the trunk, holding the
initial seizure reasonable but finding the later search
unconstitutional. 433 U.S. 1, 13 & n.8 (1977).5 Similarly, our
court of appeals has held that even if an officer may be
justified under the circumstances in seizing a purse during a
Terry stop, the same justification does not automatically allow
the search of the purse. In re Tiffany O., 217 Ariz. 370, 375
¶ 20, 174 P.3d 282, 287 (App. 2007); see also United States v.
Doe, 61 F.3d 107, 110-11 (1st Cir. 1995) (analyzing separately
the constitutionality of the seizure of a closed container and
subsequent opening of the container).
¶20 These cases recognize that even when law enforcement
exigencies justify an initial limited intrusion on Fourth
Amendment protected interests, a greater showing is required for
a second more extensive intrusion. The two-tiered approach is
particularly appropriate in the DNA sampling and profiling
context because the two searches implicate different privacy
5
Chadwick was later overruled with respect to its
interpretation of the “automobile exception” to the Fourth
Amendment in California v. Acevedo, 500 U.S. 565 (1991).
14
interests. The seizure of buccal cells is a physical intrusion,
but does not reveal by itself intimate personal information
about the individual. The later search of the sample, however,
reveals uniquely identifying information about individual
genetics. See Haskell, 669 F.3d at 1051 (describing identifying
characteristics of DNA profile). That second search is, in
effect, the analog to opening the steamer trunk in Chadwick and
the purse in Tiffany O. to see what is inside.
1.
¶21 We thus turn first to the seizure of buccal cells. It
is clear that one arrested on probable cause may be compelled to
give fingerprints to law enforcement. See Davis v. Mississippi,
394 U.S. 721, 725-28 (1969). Several courts have characterized
a buccal swab as a similarly minimal intrusion into an
arrestee’s privacy. See, e.g., Haskell, 669 F.3d at 1050;
Mitchell, 652 F.3d at 407; Martin, 955 A.2d at 1153-54.
¶22 We agree. While taking fingerprints, law enforcement
officers will often touch the body of an arrestee or restrain
him from departing until the process is completed. See A.R.S.
§ 13-3890 (providing for court order when arrestee refuses to
submit to fingerprinting). The arrestee is required to press
his hands on both an ink pad and the fingerprint card. See
A.A.C. § R13-1-106 (providing for use of ink and roll
fingerprint cards). The intrusion on an arrestee’s privacy
15
interests in the swiping of a swab to obtain buccal cells is not
significantly greater than fingerprinting. Indeed, in some
instances arrestees apparently take their own buccal swabs. See
Haskell, 669 F.3d at 1057.
¶23 But even if extracting the cell sample does not
intrude on privacy to the same extent as a search of a home or
the drawing of blood, it nonetheless remains a search or seizure
under the Fourth Amendment. See, e.g., Mitchell, 652 F.3d at
406. Under the totality of the circumstances test, the issue is
whether, and to what degree, that intrusion serves important
governmental interests. Samson, 547 U.S. at 848.
¶24 The State offers various justifications for the
extraction of a DNA sample. We find one compelling. If, as
here, a juvenile is released pending adjudication and later
fails to appear for trial without previously having submitted a
buccal sample, the opportunity to obtain a DNA profile for
identification purposes will have been lost. The State has an
important interest in locating an absconding juvenile and,
perhaps years after charges were filed, ascertaining that the
person located is the one previously charged. If the State
cannot obtain a DNA sample from a juvenile before release, it
may never have another opportunity to do so.
¶25 This exigency justifies obtaining a buccal cell sample
even if a formal judicial determination of probable cause was
16
not made at the advisory hearing. Although two of the Juveniles
were ordered to submit samples before a probable cause
determination was made, each had been charged with a serious
crime in a petition filed under oath by the prosecutor. See
Ariz. R.P. Juv. Ct. 24(a). One arrested for a serious crime may
be fingerprinted before a judicial determination of probable
cause. See A.R.S. § 13-3890(A).6 A judicial order to provide a
buccal cell sample occasions no constitutionally distinguishable
intrusion.7 Thus, we find that the first search — the physical
extraction of the DNA — is constitutional as to all of the
Juveniles.
6
The Supreme Court appears never to have expressly held that
the process of fingerprinting, as opposed to detaining an
individual for that purpose, constitutes a search or seizure
under the Fourth Amendment. Compare Hayes v. Florida, 470 U.S.
811, 814 (1985) (stating that “fingerprinting, because it
involves neither repeated harassment nor any of the probing into
private life and thoughts that often marks interrogation and
search, represents a much less serious intrusion upon personal
security than other types of searches and detentions”) with
United States v. Dionisio, 410 U.S. 1, 14-15 (1973) (comparing
voice exemplars to fingerprinting, and finding that neither
involve significant probing such that a search has occurred).
We assume for present purposes, however, that fingerprinting,
albeit minimally intrusive, constitutes a search or seizure.
7
A probable cause finding is required under Juvenile Rule
23(D) for the detention of a juvenile. See Mario W., 228 Ariz.
at 219 ¶¶ 40-41, 265 P.3d at 401 (Orozco, J., concurring in part
and dissenting in part). Not all juveniles, however, are
detained before an advisory hearing. See Ariz. R.P. Juv. Ct.
28(B)(1)-(2). The order to submit buccal cell samples under
§ 8-238(A), as this case illustrates, may thus precede a
probable cause determination, and it is that order, not any
eventual detention, that the two juveniles challenged below.
17
2.
¶26 The State argues that once it has lawfully obtained
the cell samples, the Fourth Amendment provides no greater bar
to the processing of those samples and the extraction of the DNA
profile than it does to the analysis of fingerprints. But the
State’s reliance on the fingerprinting analogy here is
misplaced. Once fingerprints are obtained, no further intrusion
on the privacy of the individual is required before they can be
used for investigative purposes. In this sense, the fingerprint
is akin to a photograph or voice exemplar. But before DNA
samples can be used by law enforcement, they must be physically
processed and a DNA profile extracted. See Erin Murphy, The New
Forensics: Criminal Justice, False Certainty, and the Second
Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 726-30
(2007).
¶27 This second search presents a greater privacy concern
than the buccal swab because it involves the extraction (and
subsequent publication to law enforcement nationwide) of
thirteen genetic markers from the arrestee’s DNA sample that
create a DNA profile effectively unique to that individual.
Ashley Eiler, Note, Arrested Development: Reforming the Federal
All-Arrestee DNA Collection Statute to Comply with the Fourth
Amendment, 79 Geo. Wash. L. Rev. 1201, 1220 (2011) (“[I]t is the
nature of the information obtained by analyzing DNA samples for
18
inclusion in CODIS rather than the bodily intrusion of the
initial collection that is problematic.”). Because the State
may constitutionally extract DNA profiles from the buccal swabs
of those who are eventually convicted, the essential issue is
whether the governmental interest in obtaining the DNA profiles
before trial is sufficient to justify the second search.
¶28 For juveniles not eventually adjudicated delinquent,
we can perceive no strong governmental interest in creating DNA
profiles in the short period between the advisory hearing and
the adjudication. The state and federal statutes providing for
the expungement from databases of profiles obtained from
arrestees not subsequently convicted recognize that these
profiles should not be used for law enforcement purposes after
adjudication, and given the constitutional presumption of
innocence, we can find no stronger state interest in their use
before adjudication. Cf. John D. Biancamano, Note, Arresting
DNA: The Evolving Nature of DNA Collection Statutes and Their
Fourth Amendment Justifications, 70 Ohio St. L.J. 619, 649
(2009) (noting that pre-trial profiling will include innocent
arrestees).
¶29 Indeed, whether or not the juvenile is eventually
adjudicated delinquent, the benefit to law enforcement of
obtaining a DNA profile in the few weeks between the advisory
hearing and trial is speculative at best. The buccal sample
19
will not typically be processed until weeks after it is
obtained. In California, for example, it takes an average of
thirty-one days to process a sample, Haskell v. Brown, 677 F.
Supp. 2d 1187, 1201 (N.D. Cal. 2009), aff’d sub nom. Haskell v.
Harris, 669 F.3d 1049 (9th Cir. 2012), and the State does not
suggest that the process in Arizona is speedier. Adjudication
of charges for juveniles not detained (as the Juveniles here)
occurs within sixty days of the advisory hearing, Ariz. R.P.
Juv. Ct. 29(B)(2), and under § 8-238(A), the juvenile is
afforded five days after the advisory hearing to submit the
buccal cell sample. Thus, the State’s access to a profile will
not be significantly delayed by deferring processing of the
sample until the typical juvenile is adjudicated delinquent.
¶30 As noted above, some juveniles released pending
adjudication may abscond, and a DNA profile may be invaluable in
their identification and recapture. But because the State
already will have obtained a buccal sample from those complying
with a § 8-238 order, it may obtain a DNA profile from the
sample once a juvenile fails to appear as required by law or
court order. The State has not suggested that earlier lack of
access to the profile will hinder recapture efforts. Indeed,
because a juvenile accused of a serious offense but released
pending adjudication will already have been determined by a
judge not to pose a significant flight risk, see Ariz. R.P. Juv.
20
Ct. 28(D), the state interest in pre-adjudication processing of
samples is even more speculative.
¶31 We recognize that DNA profiles are an important law
enforcement tool for investigating crimes other than those
charged. See 3 Wayne R. LaFave, Search & Seizure § 5.4 (4th ed.
2004) (noting that the true purpose of DNA databases has not
“been primarily to supplement or supplant fingerprints as
markers of true identity but rather to generate investigate
leads”); David H. Kaye, A Fourth Amendment Theory for Arrestee
DNA and Other Biometric Databases, 15 U. Pa. J. Const. L.
(forthcoming Summer 2012), available at
http://ssrn.com/abstract=2043259 (“Realistically, the sole
purpose of arrestee sampling . . . is intelligence.”). Having a
DNA profile before adjudication may conceivably speed such
investigations. But one accused of a crime, although having
diminished expectations of privacy in some respects, does not
forfeit Fourth Amendment protections with respect to other
offenses not charged absent either probable cause or reasonable
suspicion. An arrest for vehicular homicide, for example,
cannot alone justify a warrantless search of an arrestee’s
financial records to see if he is also an embezzler.
¶32 Thus, we find no state interest sufficient to justify
the serious intrusion on the privacy interests of the Juveniles
occasioned by the second search – the extraction of the DNA
21
profile from the buccal swab before adjudication or failure to
appear. The swab remains available for processing thereafter,
and no exigency exists warranting an earlier suspicionless
search.
IV.
¶33 For the reasons above, we vacate the opinion of the
court of appeals, and we remand the cases to the superior court
for proceedings consistent with this opinion.
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
22