# A.A. v. Attorney General

> New Jersey Superior Court Appellate Division · March 17, 2006 · 384 N.J. Super. 67

URL: https://www.frixlaw.com/law-library/cases/7323338

## Case

- **Full name:** A.A., BY HIS PARENT AND GUARDIAN B.A., AND JAMAAL W. ALLAH, PLAINTIFFS-RESPONDENTS v. ATTORNEY GENERAL OF NEW JERSEY AND THE NEW JERSEY DEPARTMENT OF CORRECTIONS, AND MERCER COUNTY PROBATION SERVICES, DEFENDANT A.A., BY HIS PARENT AND GUARDIAN B.A., AND JAMAAL W. ALLAH v. ATTORNEY GENERAL OF NEW JERSEY AND THE NEW JERSEY DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS, AND MERCER COUNTY PROBATION SERVICES
- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** March 17, 2006
- **Citations:** 384 N.J. Super. 67; 894 A.2d 31; 2006 N.J. Super. LEXIS 75
- **Precedential status:** Published
- **Opinion:** Concurrence by Stern
- **Judges:** Grall, Stern
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7323338

## Opinion text

STERN, P.J.A.D.
(concurring).
We have previously held that “[t]he search compelled by the DNA Act ... is reasonable under both a special needs analysis and the totality of circumstances test.” State v. O’Hagen, 380 N.J.Super. 133, 149 , 881 A.2d 733 (App.Div.), certif. granted, 185 *114 N.J. 391 , 886 A.2d 661 (2005). I joined that opinion and adhere to that view for the reasons stated in O’Hagen and in Judge Grail’s comprehensive opinion which I join today. I write separately, however, to address an issue of concern to me — the use of the DNA databank sample against the defendant to solve crimes which have occurred before his conviction and the taking of his DNA sample under the Act.
The Legislature has given reasons for adoption of the Act. See N.J.S.A. 53:1-20.18, -20.21. The reasons include both deterrence and the prevention of recidivism. Clearly, a person’s knowledge that law enforcement is in possession of DNA samples and sophisticated equipment to match samples should go a long way towards deterring a convicted offender from committing another crime. I agree with my colleagues that there is no constitutional reason to prevent the use of the databank in an endeavor to match the samples with new crime scene evidence, and the convicted defendant knows that can be done. It has been done for decades with fingerprints and photographs, and merely because technology has advanced, and the DNA sample is a bit more intrusive, does not mean the rationale warranting such investigative techniques must be reconsidered.
But deterrence, and particularly deterrence of recidivist conduct, does not justify or even explain why law enforcement officers, upon the taking of a DNA sample following conviction, can constitutionally use that sample to solve a past crime committed by the defendant who was compelled to provide the sample. 1 And if one of the critical purposes of sentencing is to deter, see e.g., N.J.S.A. 2C:1-2(a)(2), -2(b)(3), how can deterrence be used as a justification to collect DNA for use incident to the investigation of a past crime, at least against the defendant who gave the sample upon conviction. On the other hand, as we have said in *115 O’Hagen and again today, the collection of DNA from a convicted offender, and use of the databank, can be significant in identifying the criminal and exculpating an accused. O’Hagen, supra, 380 N.J.Super. at 145-47 , 881 A.2d 733 . However, someone charged with an offense, or even under suspicion, can always volunteer his DNA for comparison against a sample taken from the scene. Hence, the rationale advanced in our opinions for upholding the compelled collection of DNA samples from convicted offenders has little application with respect to use against the donor with respect to a crime he previously committed. 2
I concur in the judgment because I am not convinced that the cases involving the use of fingerprints and photographs to solve past crimes committed by the person compelled to give the sample are inapplicable in the more advanced setting involving DNA samples. See Landry v. Atty. Gen., 429 Mass. 336 , 709 N.E.2d 1085 , 1092 (1999), cert. denied, 528 U.S. 1073 , 120 S.Ct. 785 , 145 L.Ed.2d 663 (2000); Boling v. Romer, supra, 101 F.3d at 1340 (search and seizure not unreasonable because of the convicted felon’s diminished expectation of privacy, coupled with “the minimal intrusion of saliva and blood tests[,] and the legitimate government interest in the investigation and prosecution of unsolved and future criminal acts by the use of DNA in a manner not significantly different from the use of fingerprints”); see also Smith v. State, 744 N.E.2d 437 (Sup.Ct.Ind.2001) (use of DNA sample taken after second arrest could be used to create a match with DNA sample from scene of prior crime). On the other hand, even if the matter poses no concern under the federal constitution, it may present an issue for consideration under the state constitution which provides greater protection in various settings. See, e.g., Joye v. Hunterdon Cent. Reg’l High Sch. Bd. of Educ., 176 N.J. 568, 595, 608 , 826 A.2d 624 (2003); id. at 635-36 , 826 A.2d 624 (LaVecchia, J. dissenting) (use of state constitution with respect to validity of random suspicionless drug testing of high school stu *116 dents; program upheld where no law enforcement purpose or exposure to criminal liability). In any event, I do not believe we need resolve in this case any issue concerning the use of the DNA databank against a defendant with respect to a crime he or she committed before being compelled to give the sample. I reserve definitive judgment on that issue and would address it when and if a motion to suppress is filed in a case in which the question must be addressed.
Judge PARKER joins this opinion.
As at this time I will assume that only the defendant has standing to object to the taking of his or her sample, I need not consider the use of the sample against someone other than the convicted offender who gave it upon conviction.
The compelled taking poses no Fifth Amendment concern because it is “not testimonial in nature.” Boling v. Romer, 101 F.3d 1336, 1339-40 (10th Cir. 1996).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7323338. Public record. Not legal advice.