People v. Peppers

JUSTICE HALL, dissenting:

I respectfully dissent. I believe that the DNA identification statute (730 ILCS 5/5 — 4—3 (West 2002)), as amended by Public Act 92 — 829 (Pub. Act 92 — 829, eff. August 22, 2002), is unconstitutional because it requires all convicted felons to submit their DNA samples, even first-time offenders convicted of nonviolent felonies. Section 5 — 4—3 was enacted to establish a genetic identification database of recidivist criminal offenders. People v. Garvin, 349 Ill. App. 3d 845, 853 , 812 N.E.2d 773 (2004). If the government insists on using deterrence of violent crime and recidivism as governmental interests justifying the DNA identification statute (People v. Wealer, 264 Ill. App. 3d 6, 16 , 636 N.E.2d 1129 (1994)), then in order to be held constitutional the statute should be tailored to require DNA samples only from that class of offenders committing violent felonies or showing high rates of recidivism. See, e.g., M. Hibbert, DNA Databanks: Law Enforcement’s Greatest Surveillance Tool?, 34 Wake Forest L. Rev. 767 , 769 (1999) (noting that DNA databases were originally created to help solve crimes involving certain classes of offenders with statistically high recidivism rates such as sex offenders and violent felons).

I believe that requiring DNA samples from criminals convicted of nonviolent felonies cannot be justified under either the special needs exception or the balancing test. Under the special needs exception, a search and seizure may be reasonable under the fourth amendment absent probable cause or individualized suspicion, where the intrusion is minor or the person to be searched has a diminished expectation of privacy. Fink v. Ryan, 174 Ill. 2d 302, 306 , 673 N.E.2d 281 (1996). “The dominant feature of cases utilizing special needs as an exception to the general warrant and probable cause requirements is the court’s identification of an administrative justification independent of a law enforcement purpose.” Wealer, 264 Ill. App. 3d at 12 . The mandatory collection of DNA evidence from convicted felons for the purpose of deterring violent crime and recidivism is part and parcel of the State’s general interest in law enforcement and therefore such a purpose cannot be considered a special need. The DNA identification statute does not fall within the special needs exception to the probable cause or individualized suspicion requirement.

Under the balancing test, in order to determine which interest is more compelling, the privacy interest of the prisoner in remaining free of bodily invasion is balanced against the State’s interest in carrying out the search. Garvin, 349 Ill. App. 3d at 855 ; Wealer, 264 Ill. App. 3d at 17 . I believe that nonviolent felons’ privacy interests are more compelling than the State’s interest in compulsory DNA collection. It is true that prisoners have a greatly reduced expectation of privacy. However, this reduction is generally related to prison security concerns and prison administration. See Jones v. Murray, 962 F.2d 302, 311-12 (4th Cir. 1992) (Murnaghan, J., concurring in part and dissenting in part). Prisoners retain those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. Hudson v. Palmer, 468 U.S. 517, 523 , 82 L. Ed. 2d 393, 401 , 104 S. Ct. 3194, 3198 (1984).

The DNA identification statute was not enacted to identify prisoners for any institutional penal purpose. The stated justification for the creation of the statute is deterring and prosecuting recidivists and the facilitation of future law enforcement. See Wealer, 264 Ill. App. 3d at 16 . However, in light of the tenuous statistical link connecting nonviolent felons to the commission of future violent crime, there is very little evidence to substantiate a theory that DNA testing of nonviolent felons would assist in solving future violent crimes. Jones v. Murray, 962 F.2d at 314 (Murnaghan, J., concurring in part and dissenting in part). Law enforcement authorities are allowed to conduct DNA identification analysis on prisoners’ bodily fluids, not because they suspect a prisoner of having committed unsolved crimes, but rather because of the possibility that any prisoner may commit future crimes. This “rationale erodes the criminal doctrine of ‘probable cause,’ or the notion that law enforcement officers must have at least a reasonable suspicion of illegal activity to justify a violation of citizens’ constitutional rights of privacy and freedom from warrantless search.” 34 Wake Forest L. Rev. at 816-17. I do not believe that the mandatory collection of DNA evidence from prisoners convicted of nonviolent felonies is justified, given the limited and noncompelling State interest in including these offenders in the DNA database.