King v. State

⁵⁵⁵ HARRELL, J. We consider here facial and as-applied constitutional challenges to that portion of the Maryland DNA Collection Act (the “Act”) that purports to authorize State and local law enforcement authorities to collect DNA 1 samples from individuals who are arrested for a crime of violence, 2 an attempted crime of violence, a burglary, or an attempted burglary. Maryland Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2-504(3). Appellant, Alonzo Jay King, Jr., was arrested in 2009 on first- and second-degree assault charges.

Pursuant to § 2-504(3) of the Act, King’s DNA was collected, analyzed, and entered into Maryland’s DNA database. King was convicted ultimately on the second-degree assault charge but, pending his trial on that charge, his DNA profile generated a match to a DNA sample collected from a sexual assault forensic examination conducted on the victim of an unsolved 2003 rape. This “hit” provided the sole probable cause for a subsequent grand jury indictment of King for the rape. A later-obtained search warrant ordered collection from King of an additional reference DNA sample, which, after processing and analysis, matched also the DNA profile from the 2003 rape.

King was convicted of first-degree rape and sentenced to life in prison. Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 Md. 1 , 857 A.2d 19 (2004), the present case presents an extension of the statute, not present in Raines . Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable ⁵⁵⁶ searches and seizures. Under the totality of the circumstances balancing test, see United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time.

The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges. We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King.

Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately. I. Factual and Procedural Background The tale of this case began on 10 April 2009, when appellant was arrested in Wicomico County, Maryland, on first- and second-degree assault charges unrelated to the rape charge underlying the prosecution of the present case. 3 Prior to the disposition of the assault charges, because King was charged with a crime of violence, the Act authorized collection of a ⁵⁵⁷ DNA sample. Personnel at the Wicomico County Central Booking facility used a buccal swab to collect a DNA sample 4 from King on the day of his arrest. 5 The sample was received and processed by the Maryland State Police Forensic Sciences Division and later analyzed by a private vendor laboratory. On 13 July 2009, the DNA record 6 was uploaded to the Maryland DNA database.

Detective Barry Tucker of the Salisbury Police Department received notice from the State Police, on 4 August 2009, that there had been a “hit” on King’s DNA profile in an unsolved rape case. The DNA database “hit” identified King’s DNA profile as a match to a profile developed from a DNA sample collected in a 2003 unsolved rape case in Salisbury, Maryland. In that case, on 21 September 2003, an unidentified man broke into the home of Yonette W., a 53-year-old woman. The man, wearing a scarf over his face, a hat pulled over his head, and armed with a hand gun, entered Yonette W.’s bedroom, and ordered ⁵⁵⁸ her not to look at him.

While holding the gun to her head, he raped Vonette W. After the rape, he left with Vonette W.’s purse. Vonette W. called immediately her daughter for help. Salisbury Police officers arranged for the victim to be transported to Peninsula Regional Medical Center, where she underwent a sexual assault forensic examination. Semen was collected from a vaginal swab.

The swab was processed and the DNA profile uploaded to the Maryland DNA database. No matches resulted at that time. Vonette W. was unable to identify the man who attacked her other than to say that he was African-American, between 20 and 25 years old, five-foot-six inches tall, and with a light-to-medium physique. Police searched the area around the victim’s home and conducted interviews, but were unable to identify the attacker.

Detective Tucker presented the 4 August 2009 DNA database “hit” to a Wicomico County grand jury which, on 18 October 2009, returned an indictment against King for ten charges arising from the crimes committed against Vonette W., including first-degree rape. 7 The DNA database “hit” was the only evidence of probable cause supporting the indictment. On 18 November 2009, Detective Tucker obtained a search warrant and collected a second buccal swab from King. The second buccal swab matched also the sample collected from Vonette W. during the 2003 sexual assault forensic examination. King filed in the Circuit Court for Wicomico County an omnibus motion that included a request to suppress evidence obtained through an illegal search and seizure. 8 On 12 Febru ⁵⁵⁹ ary 2010, the Circuit Court held a hearing on the motion.

The thrust of King’s argument was that the DNA Act could not survive scrutiny under the Fourth Amendment and therefore King’s arrest was invalid. 9 He argued also that the State did not collect King’s first DNA sample in accordance with the procedures specified by the DNA Act and, therefore, that the indictment for the charges arising from the 2003 rape was invalid. The hearing judge solicited memoranda of law on the illegal search-and-seizure issue raised at the hearing. 10 On 26 February 2009, the hearing judge issued a memorandum opinion denying King’s motion to suppress. The memorandum opinion upheld the constitutionality of the Maryland DNA Collection Act’s authorization to collect DNA from arrestees, citing to this Court’s holding in State v. Raines, 383 Md. 1 , 857 A.2d 19 (2004), and concluded that the arrest of King on the 2009 assault charges and seizure of his DNA were presumed lawful; therefore, the defense bore the burden to prove that the warrant for the second DNA sample was invalid. The judge noted the analysis in Fitzgerald v. State, 153 Md.App. 601, 638 , 837 A.2d 989, 1010 (2003) (citing Franks v. Delaware, 438 U.S. 154, 160 , 98 S.Ct. 2674, 2678 , 57 L.Ed.2d 667, 675 (1978)), aff'd 384 Md. 484 , 864 A.2d 1006 (2004), which lead to a conclusion that when a defendant challenges a warrant outside of its “four corners,” the burden shifts to the defendant to demonstrate, by a preponderance of the evidence, that the State’s supporting factual allegations to obtain the warrant are tainted by “deliberate falsehood or with reckless disregard for the truth.” Because King did not allege or present evidence of falsehood or reckless disregard for the truth, the ⁵⁶⁰ hearing judge concluded King had not met his burden under Franks.

On 26 March 2010, the same judge presided over a second hearing on King’s motion to suppress in order to allow King to present evidence that the warrant was based on falsehood or reckless disregard for the truth. King called Michelle Groves, custodian of the Maryland State Police Forensics Division Crime Lab, as a witness. In an attempt to show that the State could not prove that all predicate requirements for collection of a DNA sample under the Maryland DNA Collection Act (i.e., collection must be completed by an approved person 11 ) were observed and therefore the warrant based on that sample was invalid, King questioned Groves about the handling and custody of the first DNA sample. Groves could not provide any records of the training or qualifications of the person who collected King’s first DNA sample and could not provide affirmative evidence that King was given a required notice about the Act’s expungement provisions. 12 The State countered that Kfing had not adduced any evidence of error or irregularity in the DNA collection procedures.

The hearing judge concluded that King failed to meet his burden under Franks and denied again the motion to suppress. Ultimately, King plead not guilty to the charges arising from the 2003 rape of Vonette W., on an agreed statement of facts, in order to preserve his right to appeal the constitutional issues he raised. King was convicted and sentenced to life in prison, without the possibility of parole. On 12 October 2010, King filed timely a notice of appeal to the Court of Special Appeals, but we issued a writ of certiorari on our initiative, King v. State, 422 Md. 353 , 30 A.3d 193 (2011), before the intermediate appellate court could decide the appeal.

Appellant poses two questions for our consideration: ⁵⁶¹ 1. Did the trial court err by denying Appellant’s motion to suppress DNA evidence obtained through a warrantless search conducted without any individualized suspicion of wrongdoing? 2. Did the court below improperly shift the burden of proof to the defense to demonstrate that a search or seizure made without individualized suspicion is unreasonable? We hold that § 2-504(3) of the Maryland DNA Collection Act, which allows DNA collection from persons arrested, but not yet convicted, for crimes of violence and burglary, is unconstitutional, under the Fourth Amendment totality of the circumstances balancing test, as applied to the relevant facts of this case because King’s expectation of privacy is greater than the State’s purported interest in using King’s DNA to identify him for purposes of his 10 April 2009 arrest on the assault charges.

Concluding that, in King’s circumstances, his DNA was collected unconstitutionally, and the evidence presented at trial should have been suppressed as “fruit of the poisonous tree,” we do not reach King’s second question as it becomes moot. Accordingly, we reverse the judgment of the Circuit Court for Wicomico County and remand the case to that court for a new trial, consistent with the views expressed in this opinion.

II

Standard of Review Reviewing a trial court’s disposition of a motion to suppress evidence, we view the evidence presented at the hearing, along with any reasonable inferences drawable therefrom, in a light most favorable to the prevailing party, which, in the present situation, was the State. Bailey v. State, 412 Md. 349, 363 , 987 A.2d 72, 80 (2010) (citing Crosby v. State, 408 Md. 490, 504 , 970 A.2d 894, 902 (2009); Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129, 1135 (2007)). The reviewing court defers to the fact-finding of the hearing court, unless the findings are erroneous clearly. Id.

We apply, however, a non-deferential standard of review when making the ultimate legal determination as to whether the evidence was seized properly under the Fourth Amendment. Williamson v. State, 413 Md. ⁵⁶² 521, 532 , 993 A.2d 626, 632 (2010) (citing Bailey, 412 Md. at 362 , 987 A.2d at 80 ; Crosby, 408 Md. at 504-05 , 970 A.2d at 902 ).

III

Discussion Appellant argues that the Fourth Amendment protects mere arrestees, who are cloaked with the assumption of innocence until proven guilty, from unreasonable, warrantless, and suspicionless seizures and searches of their genetic material made pursuant to the Maryland DNA Collection Act. King maintains that the Maryland DNA Collection Act is unconstitutional facially under the Fourth Amendment, and also that the statute is invalid as applied to the facts of his case. The State counters that there is an overriding governmental interest in identifying arrestees accurately, that DNA profiles developed from arrestees under the Maryland DNA Collection Act are used only for identification purposes (under an expansive view of what constitutes “identification”), and that arrestees have no expectation of privacy in their identity. A. The Fourth Amendment 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.

The Fourth Amendment is applicable to Maryland through the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691 , 6 L.Ed.2d 1081, 1090 (1961); Owens v. State, 322 Md. 616, 622 , 589 A.2d 59, 61 (1991). We evaluate Fourth Amendment challenges under the reasonableness test articulated by Justice Harlan in his concurring opinion in Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507, 516 , 19 L.Ed.2d 576, 587-88 (1967), a standard adopted by this Court in Venner v. State, 279 Md. 47, 51-52 , 367 A.2d 949, ⁵⁶³ 952 (1977). The Katz reasonableness test requires first that the person have an “actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” 389 U.S. at 361 , 88 S.Ct. at 516 , 19 L.Ed.2d at 587-88 (Harlan, J., concurring).

A seizure or search will be upheld even if there is a reasonable expectation of privacy when the government has a “special need.” See Griffin v. Wisconsin, 483 U.S. 868, 875 , 107 S.Ct. 3164, 3169 , 97 L.Ed.2d 709, 718 (1987) (upholding a warrant-less search of a probationer because the government had a “special need” for the “exercise of supervision to assure that restrictions are in fact observed”); Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 633 , 109 S.Ct. 1402, 1422 , 103 L.Ed.2d 639, 670 (1989) (upholding warrantless and suspicion-less alcohol and drug test for railway employees). The State does little more than mention the special needs exception in the present case, for good reason, because its narrow confines do not embrace the case at bar.

The context for evaluating the Fourth Amendment challenges where a reasonable expectation of privacy competes with government interests was set forth by the Supreme Court in United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001). In Knights , the Supreme Court upheld a warrantless search of a probationer’s apartment, using the “totality of the circumstances” approach set forth in Ohio v. Robinette, 519 U.S. 33, 39 , 117 S.Ct. 417, 421 , 136 L.Ed.2d 347, 354 (1996). Knights, 534 U.S. at 118 , 122 S.Ct. at 591 , 151 L.Ed.2d at 505 . Reasonableness in a Fourth Amendment analysis 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 government interests.

Knights, 534 U.S. at 118-19 , 122 S.Ct. at 591 , 151 L.Ed.2d at 505 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 , 119 S.Ct. 1297, 1300 , 143 L.Ed.2d 408, 414 (1999)). The Court considered as weighty Knights’s status as a probationer, which “like incarceration, is a form of criminal sanction imposed by a ⁵⁶⁴ court upon an offender after verdict, finding, or plea of guilty.” Knights, 534 U.S. at 119 , 122 S.Ct. at 591 , 151 L.Ed.2d at 505 (citing Griffin, 483 U.S. at 874 , 107 S.Ct. at 3168 , 97 L.Ed.2d at 717 ) (internal quotation omitted). Probation, noted the Court, was one point on a continuum of punishments for convicted criminals whose freedoms may be curtailed beyond those of law-abiding citizens. Id.

Further, Knights’s probation order stated clearly that warrantless searches were a condition of his probation; therefore, the Court concluded his expectation of privacy was diminished. Knights, 534 U.S. at 119-20 , 122 S.Ct. at 591-92 , 151 L.Ed.2d at 505 . On the other side of the “totality of the circumstances” scale from the individual’s privacy interest is the government interest in conducting the search. In Knights’s situation, the government had a legitimate interest in his rehabilitation and protecting society from future criminal actions.

Knights, 534 U.S. at 119 , 122 S.Ct. at 591-92 , 151 L.Ed.2d at 505 . The high recidivism rate of probationers fueled a strong government interest that weighed heavily against Knights’s diminished expectation of privacy. Knights, 534 U.S. at 120 , 122 S.Ct. at 592 , 151 L.Ed.2d at 506 (noting a Justice Department report that found 43% of probationers were re-arrested for a felony within three years of release). The Court concluded that the government had a legitimate interest in preventing future crimes committed by probationers by conducting warrantless searches of probationers’ residences.

Knights, 534 U.S. at 121 , 122 S.Ct. at 592 , 151 L.Ed.2d at 506 . Balancing Knights’s reduced expectation of privacy as a probationer against the government’s interests in preventing recidivism and protecting the public, the Court observed that less than “probable cause” (in the form of reasonable suspicion, rather than individualized suspicion) was required for a search of Knights’s residence. Id. The Supreme Court deployed later the Knights “totality of the circumstances” test to determine whether a suspicionless search of a parolee, conducted by a police officer on a public sidewalk, was reasonable under the Fourth Amendment.

Samson v. California, 547 U.S. 843 , 126 S.Ct. 2193 , 165 ⁵⁶⁵ L.Ed.2d 250 (2006). The Court concluded that, on the continuum of punishments imposed for criminal violations, a parolee has “fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation.... ” Samson, 547 U.S. at 850 , 126 S.Ct. at 2198 , 165 L.Ed.2d at 258 . Parolees are subject to a wide range of conditions for their release, including mandatory drug tests, restrictions on personal associations and activities, psychiatric treatment, residence approval, and mandatory meetings with parole agents. Samson, 547 U.S. at 851 , 126 S.Ct. at 2199 , 165 L.Ed.2d at 259 .

As in Knights, Samson focused heavily on the high recidivism rate of the parolee population, which, in California during the relevant time, approached 70 percent. Samson, 547 U.S. at 853 , 126 S.Ct. at 2199 , 165 L.Ed.2d at 259 . The Court concluded that the government interest in re-integrating parolees, protecting society from future criminal actions, along with a statutory prohibition against “arbitrary, capricious, or harassing” searches, outweighed the parolee’s diminished expectation of privacy under the “totality of the circumstances.” Samson, 547 U.S. at 856 , 126 S.Ct. at 2202 , 165 L.Ed.2d at 262 . B. The Maryland DNA Collection Act The Maryland DNA Collection Act was enacted in 1994.

The portions of the current statute challenged by Appellant were added in 2008. 13 2008 Md. Laws 337 . The stated purpose of the statute is to “analyze and type the genetic markers contained in or derived from the DNA samples;” to assist an official investigation of a crime; to identify human remains; to identify missing persons; and for “research and administrative purposes,” including the development of a pop ⁵⁶⁶ ulation database 14 and to aid in quality assurance. Md.Code (2003, 2011 RepLVol.), Pub. Safety Art., § 2-505.

The 2008 amendments affected primarily § 2-501 (i), Definitions 15 and § 2-504, Collection of DNA Samples. 16 2008 Md. Laws 337 . ⁵⁶⁷ The amendments purport to allow the State to collect DNA samples from individuals arrested for crimes (or attempted crimes) of violence or burglary prior to being found guilty or pleading guilty. Md.Code (2003, 2011 RepLVol.), Pub. Safety Art., § 2-504(a)(3). DNA samples are collected from arrestees when the individual is charged (or at a correctional facility if the arrestee is in custody) by an authorized collector trained in the collection protocols used by the Maryland State Police Crime Laboratory.

Md.Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2-504(c). Samples may be collected with reasonable force, if necessary, and are mailed to the Maryland State Police Crime Laboratory within 24 hours of collection. Md.Code Regs. 29.05.01.04(C) & (M) (2011).

The samples are not tested or placed in the statewide DNA system until the first scheduled arraignment of the arrestee, or earlier if the arrestee gives consent. Md.Code (2003, 2011 RepLVol.), Pub. Safety Art., § 2-504(d). DNA samples are analyzed in accordance with FBI standards and CODIS requirements.

Md.Code Regs. 29.05.01.09(A) (2011). In the present case, King’s DNA samples were sent to an approved vendor laboratory for analysis. While the specific type of scientific analysis to be employed is not prescribed by the statute, the polymerase chain reaction (“PCR”) method is used commonly by laboratories to analyze DNA samples. Mary McCarthy, Am I My Brother’s Keeper?: Familial DNA Searches in the Twenty-first Century, 86 Notre Dame L.Rev. 381, 384 (2011).

In DNA analyses performed to comply with FBI/CODIS standards, PCR is used to replicate 13 core short-tandem-repeat loci. Id. These 13 loci were chosen by the FBI for CODIS, in response to congres ⁵⁶⁸ sional concern over privacy protections, because they are considered “non-coding” DNA that are thought not to reveal private information. 17 H. Rep. 106-900(1), at 27 (2000) (codified at 42 U.S.C. §§ 13701-14223 (2012)) (stating that the records do not “reveal information relating to any medical condition or other trait”). Once the DNA sample is analyzed, the DNA record (a numerical representation of the information at each loci) is uploaded to the statewide searchable DNA electronic database or the FBI CODIS database.

No identifying information, criminal history, photographs, or fingerprints are stored supposedly alongside the DNA record in either DNA database. CODIS and DNIS Fact Sheet, Fed. Bureau of Investigation, http://www.fbi.gov/about-us/lab/codis/codis- and-ndis-faet-sheet (last visited 19 April 2012). When the DNA database produces a match (a “hit”) between an arrestee’s sample and one stored previously in a database, the Maryland State Police notify the law enforcement officer who provided the sample. The original sample “hit” may be used thereafter only as probable cause to obtain a warrant to obtain a second sample and is not admissible as evidence at trial.

Md.Code (2003, 2011 RepLVol.), Pub. Safety Art., § 2-510. If an arrestee is not convicted of the charge or charges which lead to his/her qualifying arrest(s), the DNA samples and records are required to be destroyed or expunged by the authorities. Md.Code (2003, 2011 Repl.Vol.), Pub.

Safety Art., § 2-511(a). There is no expungement allowed, however, if the precipitating charge or charges against an arrestee are placed on the stet docket or the arrestee received probation before judgment. Md.Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2-511(2).

The Act provides also for penalties for misuse of DNA records, unauthorized testing of DNA samples, or wilful failure to destroy DNA samples. Md.Code (2003, 2011 Repl. Vol.), Pub. Safety Art., § 2-512. ⁵⁶⁹ In Raines, 383 Md. at 25 , 857 A.2d at 33 , a plurality of this Court upheld the constitutionality, against a Fourth Amendment challenge, of the then-extant DNA collection statutory scheme, which, prior to the 2008 amendments, provided for collection of DNA samples only from individuals convicted of felonies, fourth-degree burglary, or breaking and entering into a vehicle.

The Court, however, was divided deeply in reaching that result. The plurality opinion was authored by Judge Cathell. Two members of the four judge majority authored separate concurring opinions. Raines was convicted of two separate robberies committed in 1996.

In 1999, while serving a sentence in prison for a crime unrelated to the robberies, his DNA was collected pursuant to the Act as it then existed, because the 1996 robberies were qualifying felonies. Raines, 383 Md. at 5 n. 5, 857 A.2d at 22 n. 5 (plurality opinion). In 2002, the DNA profile from a 1996 unsolved rape was uploaded to the statewide database and found to match Raines’s DNA profile collected in 1999. Raines, 383 Md. at 6 , 857 A.2d at 22 (plurality opinion).

Using the DNA database hit as probable cause, the State obtained a search warrant to obtain a saliva sample from Raines in February 2003. Raines, 383 Md. at 6-7 , 857 A.2d at 22 (plurality opinion). As a result of the second DNA profile match and the testimony of the 1996 rape victim, a grand jury returned an indictment against Raines for first- and second-degree rape and robbery. Raines, 383 Md. at 7 , 857 A.2d at 22 (plurality opinion).

Prior to his trial on the rape charges, Raines moved to suppress the DNA evidence, asserting that the original search was unconstitutional. Raines, 383 Md. at 7 , 857 A.2d at 23 (plurality opinion). The motions court agreed. Id.

The plurality opinion, on appeal, reversed the suppression of the evidence, noting that nearly every federal and state court that had decided an analogous question upheld against Fourth Amendment attack the collection of DNA from convicted felons. Raines, 383 Md. at 12 , 857 A.2d at 25 (plurality opinion). Using the balancing test for determining whether a search is reasonable under the Fourth Amendment, the plurality upheld the constitutionality ⁵⁷⁰ of the Maryland DNA Collection Act, as applied to convicted felons. Raines, 383 Md. at 18 , 857 A.2d at 29 .

On the privacy interest side of the scales of the balancing test, the Court considered Raines’s status as a convicted and incarcerated person as one with “severely diminished expectation of privacy.” Raines, 383 Md. at 25 , 857 A.2d at 33 (plurality opinion). The plurality opinion diluted further Raines’s expectation of privacy by crediting that the purpose of the DNA collection was to “identify” convicted felons; no incarcerated individual has an expectation of privacy in his or her identity. Id. The Court distinguished the interest in searching for “identification” from searching “ordinary individuals for the purpose of gathering evidence against them in order to prosecute them for the very crimes that the search reveals.” Id.

Using the Knights test, the Court concluded that there is no reason why a search cannot be reasonable absent an individualized suspicion in the limited circumstances of this case, where the individual’s expectation of privacy was even more limited than in Knights , the government intrusion, a buccal swab, was minimal at most and the government objective is as strong as in Knights. Raines, 383 Md. at 17 , 857 A.2d at 29 (plurality opinion). A government interest highlighted in Raines was to identify recidivists, persons involved with crimes, and unidentified bodies. 383 Md. at 21 , 857 A.2d at 31 (plurality opinion). Judge Raker’s concurring opinion disagreed with the plurality opinion as to its conclusion of the severely limited expectation of privacy a convicted felon has in his/her bodily fluids, but upheld the statute based on her acceptance of the analogy between fingerprints and DNA profiles as providing purely identifying information.

Raines, 383 Md. at 44-45 , 857 A.2d at 45 (nodding to the State’s assertion that a DNA profile is just a series of numbers, similar to a social security number). In a separate concurring opinion, Judge Wilner criticized the plurality opinion’s characterization of the State’s interest in the DNA as simply identification, calling it “misleading even to ⁵⁷¹ suggest, much less hold, that this program is not designed for the predominant purpose of providing evidence of criminality.” Raines, 383 Md. at 51 , 857 A.2d at 49 . He conceded, however, that convicted criminals have a high rate of recidivism and that DNA’s reliability serves the government’s interest in identification in the same way as fingerprints and photographs do. Raines, 383 Md. at 51-52 , 857 A.2d at 49 (Wilner, J., concurring).

In our next relevant case to consider the Fourth Amendment implications of the Act, Williamson v. State, 413 Md. 521, 526 , 993 A.2d 626, 629 (2010), a woman told police in 1994 that Williamson had raped her. A sexual assault examination was performed and vaginal swab collected (but no DNA was analyzed). Id. Williamson entered ultimately an Alford plea to battery in the case.

Id. In 2002, a different woman told police that an unknown assailant raped her, a sexual assault forensic examination was performed, and a vaginal swab was collected. Williamson, 413 Md. at 526 , 993 A.2d at 629 . The DNA was analyzed and uploaded to the database, but there were no DNA profile matches.

Williamson, 413 Md. at 526-27 , 993 A.2d at 629-30 . In 2005, Anne Arundel County Police received a financial grant to be used to solve cold cases. Williamson, 413 Md. at 527 , 993 A.2d at 630 . Pursuant to the grant, the police analyzed the vaginal swab from the 1994 alleged rape, which resulted in a match to the DNA profile in the 2002 rape.

Id. Police suspected Williamson of both rapes. Id. After being arrested on an unrelated open warrant and while he was held in a police interrogation room, Williamson was given a McDonald’s meal 18 by the police.

Id. He drank from the drink cup and left the debris behind when he was taken from the room. Id. The police recovered the discarded cup and swabbed it for DNA.

Id. The DNA thus obtained was analyzed and the results uploaded to the database, yielding a match to the specimens obtained from the 1994 and 2002 ⁵⁷² rapes. Williamson, 413 Md. at 528 , 993 A.2d at 630 . Williamson was indicted by a grand jury for charges stemming from the 2002 rape.

Williamson, 413 Md. at 528 , 993 A.2d at 631 . Applying the two-part test from Katz , the Court concluded that Williamson abandoned the McDonald’s cup in the police station and, therefore, could expect reasonably that the police might collect and investigate the cup. Williamson, 413 Md. at 536-37 , 993 A.2d at 635 . Williamson argued that, even if the cup was seized lawfully, the analysis of his DNA sample constituted a second and subsequent search and seizure for the purposes of the Fourth Amendment, which required a warrant.

Williamson, 413 Md. at 539 , 993 A.2d at 637 . In dicta, the Court suggested that “[h]ad the police compelled Williamson to give a DNA sample as a pre-trial detainee, Williamson’s argument may have had some weight.” Williamson, 413 Md. at 540 , 993 A.2d at 637 . Relying on the declaration in Raines that DNA profiles produced under the authority of the Maryland DNA Collection Act provide identification of the person only, rather than being concerned with the vast amount of genetic information contained within the actual DNA sample, the Court concluded that, because Williamson abandoned the cup, there was no Fourth Amendment search implicated by the analysis of the DNA sample. Williamson, 413 Md. at 547 , 993 A.2d at 641 (analogizing the abandoned DNA on the cup to a garbage bag left outside the curtilage of a home).

Most recently, in Raynor v. State, 201 Md.App. 209 , 29 A.3d 617 (2011), our colleagues on the Court of Special Appeals tackled another facet of analyzing a reasonable expectation of privacy in one’s DNA under Fourth Amendment jurisprudence. Appellant Raynor became a suspect in an unsolved rape case and was asked by State Police to come to the local barracks to talk about the investigation. Raynor, 201 Md.App. at 214-15 , 29 A.3d at 620 . The police asked Raynor for a DNA sample; he refused.

Raynor, 201 Md.App. at 215 , 29 A.3d at 621 . During the interview, however, Raynor rubbed repeatedly his hands up and down the arm-rests of the chair in which he was seated. Id. After the interview, the police ⁵⁷³ swabbed the arm-rests and obtained a viable DNA sample that, once analyzed, matched the sample taken from a rape kit obtained from the victim.

Raynor, 201 Md.App. at 215 , 29 A.3d at 621 . The trial court refused, on Raynor’s motion, to suppress the DNA evidence. Raynor, 201 Md.App. at 216 , 29 A.3d at 621-22 . On appeal, the thrust of Raynor’s argument (similar to Williamson’s, supra) was that he had a reasonable expectation of privacy in the DNA within his skin cells, despite the latter having been gathered lawfully by the police from the aim-rests.

Raynor, 201 Md.App. at 217 , 29 A.3d at 622 . The Court of Special Appeals, relying principally on the reasoning of Judge Raker’s concurring opinion in Raines , concluded that “even if appellant could demonstrate a subjective expectation of privacy in his DNA profile, he nonetheless had no objectively reasonable expectation of privacy in it because it was used for identification purposes only.” Raynor, 201 Md.App. at 222 , 29 A.3d at 625 . The intermediate appellate court reasoned that collection of the DNA from the chair was analogous to collection of a latent fingerprint and, therefore, was not a constitutionally-protected search. Id.

C. The State of Fourth Amendment Challenges to Analogous Federal and other State Statutes Courts have upheld overwhelmingly against Fourth Amendment challenges federal and state statutes authorizing warrantless, suspicionless DNA collection from convicted criminals, including incarcerated prisoners, parolees, and probationers. Federal and state courts are divided, however, on the constitutionality of requiring mere arrestees to submit to DNA sample collection. At the heart of this debate (and the present case) is the presumption of innocence cloaking arrestees and whether legitimate government interests outweigh the rights of a person who has not been adjudicated guilty of the charged crime, and is somewhere closer along the continuum to a person who is not charged with a crime than he or she is to someone convicted of a crime. In People v. Buza, 129 Cal.Rptr.3d 753 , 755 (Cal.Ct.App.2011), ce rt. granted, — Cal.4th —, 132 Cal.Rptr.3d 616 , 262 ⁵⁷⁴ P.3d 854 (2011), the First Appellate District, Division Two, of the Court of Appeal of California held unconstitutional facially the section of California’s Forensic Identification Database and Data Bank Act of 1998 (“California DNA Collection Act”) (CahPenal Code § 296 (2011)), that authorized the taking of a DNA sample from all adults arrested or charged with a felony. 19 Mark Buza was arrested for arson and vandalism and asked to provide a DNA sample, as required by the California Act; he refused.

Id. Buza was informed that, under the California Act, refusal to provide a DNA sample after arrest was itself a misdemeanor offense. Buza, 129 Cal.Rptr.3d at 756. The State charged Buza, on information, with arson, vandalism, and refusal to provide a DNA sample under the California DNA Collection Act.

Id. Buza moved for an acquittal on the charge of failure to provide a DNA sample, contending that being charged with a felony was not a sufficient basis for the state to require a DNA sample. Id. His motion was denied, yet he continued to refuse to provide a DNA sample.

Id. Buza was convicted on all charges. Id. The court ordered law enforcement to use “reasonable force” to extract the DNA sample.

Id. Buza was sentenced to 16 months, including six months for his refusal to provide DNA. Id. He was informed his DNA would be uploaded into the database.

Id. Buza appealed his conviction for failure to provide a DNA sample, arguing that, as an arrestee, he was entitled to the presumption of innocence and had the right, under the Fourth Amendment, to be free of unreasonable searches and seizures. Buza, 129 Cal.Rptr.3d at 755. In analyzing Buza’s facial ⁵⁷⁵ attack on the constitutionality of the statute authorizing DNA collection from arrestees, the court summarized relevant cases upholding DNA collection of convicted offenders, highlighting the narrow grounds on which these cases were decided or the divided views expressed by the deciding courts.

Buza, 129 Cal.Rptr.3d at 762 (noting the “limited nature” of the holding in United States v. Kincade, 379 F.3d 813, 836 (9th Cir.2004), applying only to “lawfully adjudicated criminals whose proven conduct substantially heightens the government’s interest in monitoring them,” and the Ninth Circuit in United States v. Kriesel, 508 F.3d 941, 948-49 (9th Cir.2007), because its holding did not apply to arrestees). The Buza court looked also to opinions that evaluated DNA collection from arrestees or pre-trial detainees. 129 Cal.Rptr.3d at 763. In Friedman v. Boucher, 580 F.3d 847, 851 (9th Cir.2009), a Montana law enforcement officer requested a DNA sample (under a Montana statute authorizing collection from convicted felons) from a pre-trial detainee who had been convicted, sentenced, and served time to completion in Nevada previously for an unrelated crime. 20 The Friedman court concluded that, despite the state’s assertions that pretrial detainees have a limited expectation of privacy and that the government has a legitimate interest in collecting DNA samples for its database, forcible extraction of DNA, without a warrant and in the absence of individualized suspicion, or for the purposes of solving unsolved crimes, was unconstitutional as applied to Boucher. 580 F.3d at 851, 856 . The court noted that government interests that would offset the expectation of privacy in certain circumstances (prison security or supervision and integration of parolees) are not present with pre-trial detainees and, additionally, Montana’s constitution provides greater privacy protections than the Fourth Amendment.

Friedman, 580 F.3d at 858 (citing government interests in Samson, 547 U.S. at 856 , 126 S.Ct. at 2202 , 165 L.Ed.2d at ⁵⁷⁶ 262 ). In response to the government’s argument that the search was reasonable because of the reduced privacy rights of pre-trial detainees, the court responded by noting that the Supreme Court has not allowed suspicionless searches of pretrial detainees for reasons other than prison security. Friedman, 580 F.3d at 856-57 . Quoting from Schmerber v. California, 384 U.S. 757, 770 , 86 S.Ct. 1826, 1835 , 16 L.Ed.2d 908, 919 (1966), the court emphasized “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Friedman, 580 F.3d at 857 .

The Friedman court distinguished the holdings in Kincade and Kriesel , discussed supra, because those cases addressed convicted criminals and Friedman was only a pre-trial detainee for the purposes of the Montana statute. Id. In United States v. Pool, 621 F.3d 1213 (9th Cir.2010), a divided panel of the Ninth Circuit affirmed the holding of a federal magistrate judge who found constitutional, against an as-applied challenge, provisions of the Bail Reform Act of 1966 ( 18 U.S.C. § 3142 (b), (c)(1)(A) (2009)), and the DNA Fingerprint Act of 2005 (42 U.S.C. § 14135a (2009)) requiring Pool, as an arrestee, to provide a DNA sample as a condition of his pre-trial release. 21 , 22 The majority opinion in Pool , adopting the magistrate judge’s approach, applied the totality of the ⁵⁷⁷ circumstances test and concluded that a “judicial or grand jury-finding of probable cause” is a “watershed event” that tips the scales in favor of “the government’s interest in definitively determining the defendant’s identity,” at the expense of a “defendant’s privacy interest in giving a DNA sample as a condition of pre-trial release.... ” 621 F.3d at 1219, 1226 . The magistrate likened the DNA sample requirement to other conditions of pre-trial release that limit liberty, including electronic monitoring and mandatory curfews.

Pool, 621 F.3d at 1217 . The appeals-court-panel majority concluded that Pool had not shown any greater privacy interest in his DNA than had Kinkade (a convict), supra, because the DNA statute required that only identifying numbers be used in the reporting system. Pool, 621 F.3d at 1222 . The competing government interests included allowing “the government to ensure that the defendant did not commit some other crime[;] .. . discouragetd] a defendant from violating any condition of his or her pretrial release”; and served the same purpose of identifying potentially dangerous individuals to the public, whether arrestees or convicts.

Pool, 621 F.3d at 1223 . In dissent, Judge Schroder countered that United States v. Brown, 563 F.3d 410, 414-15 (9th Cir.2009), required that the government bear the burden of showing that searches and seizures are reasonable under a Fourth Amendment exception. Pool, 621 F.3d at 1237 . Under its application of the balancing test, the dissent concluded that Pool’s expectation of privacy had not been reduced by a conviction and, therefore, the government’s asserted interest in Pool was obliged, in order to overcome Pool’s expectation, to be even more significant than those recognized with regard to convicts; the government may not rely on a “generalized interest in preventing the commission of crimes by pretrial defendants.” Pool, 621 F.3d at 1237, 1238 .

The dissent remarked also on the difference between the DNA profile and the DNA sample; although the former contains numeric identifiers only, the latter contains the entire genetic makeup of an individual. Id. In United States v. Mitchell, 652 F.3d 387 (3rd Cir.2011), cert. denied, — U.S. —, 132 S.Ct. 1741 , 182 L.Ed.2d 558 ⁵⁷⁸ (2012), a divided Third Circuit, sitting en banc, reached a similar conclusion as did the majority in Pool, supra. 23 Mitchell was indicted for one count of attempted possession with intent to distribute cocaine. Mitchell, 652 F.3d at 398 .

While in pre-trial detention, he refused to give a DNA sample demanded pursuant to the federal DNA Collection Act (42 U.S.C. § 14135a(a)(l)(A) (2011)). Id. His refusal was upheld by the federal district court. Mitchell, 652 F.3d at 398 .

On appeal, the Third Circuit reversed. Mitchell, 652 F.3d at 402 . Mitchell argued that collection of DNA samples from arrestees and pre-trial detainees under the DNA Collection Act constituted an unreasonable search and seizure, violating the Fourth Amendment. Id.

The parties disagreed whether Mitchell had mounted a facial or as-applied constitutional challenge in the trial court, so the appellate court, following the guidance in United States v. Marcavage, 609 F.3d 264, 273 (3rd Cir.2010), considered both types of challenge. Mitchell, 652 F.3d at 405 . 24 The court, following the direction in Connection Distributing Co. v. Holder, 557 F.3d 321, 327-28 (6th Cir.2009), that “[t]he usual judicial practice is to address an as-applied challenge before a facial challenge,” considered first the constitutionality of the statute as applied to the facts in Mitchell’s case. Mitchell, 652 F.3d at 405 (internal quotation omitted) (internal citation omitted). Using the Knights totality of the circumstances test, the Mitchell court majority concluded that there are two separate searches when DNA is collected.

Mitchell, 652 F.3d at 406 . The first is the physical collection, usually via a buccal swab or a blood draw. Id. The court concluded that the physical ⁵⁷⁹ intrusion was quick and painless (relatively so) and, therefore, a minimal invasion, and did not weigh in the defendant’s favor.

Mitchell, 652 F.3d at 407 (citing Skinner, 489 U.S. at 625 , 109 S.Ct. at 1417 , 103 L.Ed.2d at 665 ; Nicholas v. Goord, 430 F.3d 652 , 656 n. 5 (2d Cir.2005)). The second search is the processing of the DNA sample and creation of the DNA profile. Mitchell, 652 F.3d at 407 . Mitchell’s challenge pointed to the vast amount of personal data contained within a DNA sample and the potential for misuse of the data.

Id. The court, however, was not persuaded by Mitchell’s argument, relying on the numerous statutory protections of the data and the “junk” nature of the 13 loci used to create the profile. Mitchell, 652 F.3d at 408 . The court embraced an analogy between fingerprints and DNA profiles, treating both as routine booking procedures, and concluded that pre-trial detainees have a diminished privacy interest relative to means to ascertain and confirm their identities.

Mitchell, 652 F.3d at 411 (“[I]t is ‘elementary’ that blanket fingerprinting of individuals who have been lawfully arrested or charged with a crime does not run afoul of the Fourth Amendment.”) (quoting Smith v. United States, 324 F.2d 879, 882 (D.C.Cir.1963)). The court in Mitchell conceded that the government’s interests in obtaining DNA from an arrestee are not as strong as with convicts, probationers, or parolees. 652 F.3d at 413 . Mitchell maintained that the interest in law enforcement is “equally well served by collecting DNA samples post-conviction,” however, the court was persuaded by the government’s argument that there is a strong interest in identifying arrestees. Id.

Quoting from United States v. Sczubelek, 402 F.3d 175, 185 (3rd Cir.2005), the Mitchell court reiterated that a criminal may take “unusual steps to conceal not only his conduct, but also his identity” by using disguises, changing names, or changing physical features. 652 F.3d at 414 . Such attempts by criminals to obfuscate their identities amplify the government’s need to use DNA to identify accurately pre-trial detainees or arrestees, concluded the court. Id. The majority, however, made no mention of evidence that Mitchell had attempted to conceal his identity or that the government had ⁵⁸⁰ any difficulties determining Mitchell’s identity without resorting to a DNA profile.

The Mitchell majority, quoting from Haskell v. Brown, 677 F.Supp.2d 1187, 1199 (N.D.Cal.2009), perceived two components to identity: “who that person is (the person’s name, date of birth, etc.) and what that person has done (whether the individual has a criminal record, whether he is the same person who committed an as-yet unsolved crime across town, etc.).” Id. The court placed great weight on the second component, noting that a person’s criminal record has important ramifications for pre-trial release considerations. Id. The court conceded, however, that “in comparison to the probationer cases, the interests in supervision and prevention of recidivism are much diminished, if not absent, in the context of arrestees and pretrial detainees.” Mitchell, 652 F.3d at 415 n. 25 (quoting United States v. Scott, 450 F.3d 863, 874 (9th Cir.2006) (“That an individual is charged with a crime cannot, as a constitutional matter give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody.”)).

Concluding that the government’s interest in identifying arrestees was sufficient to render the DNA Act constitutional, as applied to Mitchell, the court resolved that Mitchell’s facial challenge to the statute failed. Mitchell, 652 F.3d at 415-16 . A strongly worded dissent criticized the Mitchell majority’s conclusions, asserting that it gave “short shrift” to an arrestee’s privacy interest by reducing it only to an interest in identity. 652 F.3d at 416 (Rendell, J., dissenting). Judge Rendell maintained that statutory limitations on the use of DNA profiles, “though not wholly irrelevant, are not panaceas, ... and cannot offset the severe invasion of privacy that takes place when an arrestee’s DNA is seized and searched.” Id.

The dissent described the privacy interest of arrestees, “while diminished in certain, very circumscribed situations, are not so weak as to permit the Government to intrude into their bodies and extract the highly sensitive information coded in their genes.” Mitchell, 652 F.3d at 421 (Rendell, J., dissenting). Objecting to the majority’s characterization of the government ⁵⁸¹ interest as simply “identification,” Judge Rendell countered that the purpose of collecting arrestee and pre-trial detainee DNA is not to “identify” the arrestee in the sense of allowing law enforcement to confirm that the correct person has been arrested or keeping records of who has been in federal custody, but to use those profiles and the information they provide as evidence in the prosecution and to solve additional past and future crimes. Mitchell, 652 F.3d at 422-23 (Rendell, J., dissenting). Quoting the dissenting opinion in Kincade , Judge Rendell argued that “[t]he collection of a DNA sample ... does not ‘identify’ an [arrestee or pre-trial detainee] any more than a search of his home does — it merely collects more and more information about that [arrestee or pre-trial detainee] that can be used to investigate unsolved past or future crimes.” Mitchell, 652 F.3d at 423 (Rendell, J., dissenting) (quoting Kincade, 379 F.3d at 857 n. 16 (Reinhardt, J., dissenting)).

Relying on the presence of the expungement provision in the statute, the dissent bolstered its argument against a simplistic “identification” purpose being the sole government interest, stating that [i]f the Government’s real interest were in maintaining records of arrestees’ identifies, there would be no need to expunge those records upon an acquittal or failure to file charges against the arrestee. Indeed, this statutory provision serves as an admission that the fact of conviction, not of mere arrest, justifies a finding that an individual has a diminished expectation of privacy in his DNA. Mitchell, 652 F.3d at 423 (Rendell, J., dissenting). Attacking further the purported “identification only” usage of the DNA sample offered-up by the government, Judge Rendell likened the process to “the Government seizing] personal medical information about you but ... only us[ing] the subset of that information that serves to identify you.” Mitchell, 652 F.3d at 424 (Rendell, J., dissenting).

The dissent dissected also the analogy between fingerprints and DNA, quoting from Sczubelek, 402 F.3d at 197-98 , which ⁵⁸² opined that collecting DNA “requires production of evidence below the body surface which is not subject to public view,” as opposed to fingerprints which are accessible readily on the surface of the skin. Mitchell, 652 F.3d at 424-25 (Rendell, J., dissenting) (internal citation omitted). Judge Rendell rejected the reasoning of the majority in Pool , that probable cause for a particular crime is a “watershed event,” observing that Pool “never explains why a finding of probable cause in connection with a particular crime justifies the collection of DNA profiles for use in connection with other crimes for which, by definition, there has been no finding of probable cause or, indeed, any suspicion at all.” Mitchell, 652 F.3d at 427 (Rendell, J., dissenting). Finally, the dissent attacked the foundation of the majority’s Fourth Amendment analysis by noting that there are clearly defined exceptions to the general prohibition on warrantless searches, including reasonable suspicion of imminent danger and prison and jail searches.

Mitchell, 652 F.3d at 428 (Rendell, J., dissenting) (citing Terry v. Ohio, 392 U.S. 1, 27 , 88 S.Ct. 1868, 1883 , 20 L.Ed.2d 889, 909 (1968); Florence v. Burlington Cnty., 621 F.3d 296, 307 (3rd Cir.2010); see generally Kincade, 379 F.3d at 822-24 ). Concluding that none of those exceptions were applicable and that the majority opinion should not have accepted nonspecific, broad government goals of fighting crime to justify a Fourth Amendment violation under an analysis that seemed more like a First Amendment “rational basis” review, the dissent advocated the more stringent approach required for Fourth Amendment analyses. Mitchell, 652 F.3d at 428 (Rendell, J., dissenting). The final major case considered by the Buza court was Haskell, 677 F.Supp.2d at 1187 , which denied a preliminary injunction to enjoin collection of a DNA sample pursuant to the California DNA Collection Act.

Buza, 129 Cal.Rptr.3d at 753. Plaintiffs in Haskell mounted a facial challenge to the California Act under the Fourth Amendment. 677 F.Supp.2d at 1192 . The Haskell court, tracking the reasoning generally of Kincade and Kriesel , concluded that, although arrestees have a greater privacy interest than prisoners, that interest is less than that of a member of the general population; there ⁵⁸³ fore, arrestees are subject to a broad range of restrictions. Haskell, 677 F.Supp.2d at 1196 .

The court adopted the fingerprint/DNA analogy accepted by other courts and concluded that an arrestee’s privacy interest “is not weighty.” Haskell, 677 F.Supp.2d at 1198 . Following the reasoning of Mitchell , the Haskell court concluded that identification has two components and that the government has a legitimate interest in not only the name and date of birth of an arrestee, but also his or her criminal history (even criminal acts as yet undiscovered). Haskell, 677 F.Supp.2d at 1199 . The court was concerned that “[a]n individual might wear gloves at some point, thwarting fingerprint identification, or wear a mask, thwarting the use of photographs,” and, therefore, DNA sampling was a more accurate and necessary form of identification.

Id. In its sifting of the relevant cases, the Buza court rejected the DNA/fingerprint analogy relied upon in Mitchell, Pool, and Haskell. Buza, 129 Cal.Rptr.3d at 768. Similar to the dissent in Mitchell, Buza focused on whether the use of the DNA profile could overcome the “full extent of the search that has taken place.” Buza, 129 Cal.Rptr.3d at 768 (citing Mitchell, 652 F.3d at 416 (Rendell, J., dissenting)).

The search referred to was the extraction of the entire human genome, which is necessary to develop the DNA profile uploaded to CODIS. Buza, 129 Cal.Rptr.3d at 769. The court, although acknowledging that the so-called “junk DNA” is not thought currently to code for genetic information, predicted advances in scientific technology which, along with the perpetual preservation of the DNA sample (not just the DNA profile), creates privacy concerns. Id.

Noting that requiring fingerprinting after arrest has never undergone Fourth Amendment scrutiny, the Buza court rejected the notion that simply because fingerprinting is commonplace that DNA should take its place readily as a routine booking procedure, without additional scrutiny. 25 Id. ⁵⁸⁴ As to the governmental interest in “identification” touted by the Haskell court, the court in Buza countered that the purpose of DNA sampling was investigation actually. 129 Cal.Rptr.3d at 770-71. Fingerprints taken for identification “verify that the person who is fingerprinted is really who he says he is,” while those taken for investigatory purposes are taken “to connect [the person fingerprinted] to a crime with which he was not already connected.” Buza, 129 Cal.Rptr.3d at 770 (quoting United States v. Garcia-BeItran, 389 F.3d 864, 864 (9th Cir.2004)). Fingerprints obtained for identification are admissible in court, while those obtained for investigatory purposes must be suppressed if their purpose was to “connect [the arrestee] to alleged criminal activity.” Id. (quoting Garcia-Beltran, 389 F.3d at 865 ; citing Hayes v. Florida, 470 U.S. 811 , 105 S.Ct. 1643 , 84 L.Ed.2d 705 (1985); Davis v. Mississippi, 394 U.S. 721 , 89 S.Ct. 1394 , 22 L.Ed.2d 676 (1969)).

Addressing the far-reaching, two-component definition of “identification” advanced in Haskell , the Buza court reasoned that the very nature of the second component (the criminal history of, or as-yet-unsolved crimes committed by, that person) implies an “investigatory” purpose. 129 Cal.Rptr.3d at 753. The realities of the DNA processing system mean that identification does not happen immediately (noting an average processing time of 31 days) and the DNA database does not contain identification information. Buza, 129 Cal.Rptr.3d at 772-73. Collection and processing of DNA samples in California requires that fingerprints be used alongside the DNA sample to “identify the subject” specifically, lending further support to the conclusion that the purpose of the collection is not identification.

Buza, 129 Cal.Rptr.3d at 773 (quoting FAQs: Collection Mechanics, question 1.1, http://ag.ca.gov/bfs/content/faqphp#mechanics (last visited 4 Aug. 2011)). The identity-obscuring initiatives of concern in Haskell and the comment in Kincade that there is no way to avoid ⁵⁸⁵ leaving DNA at the scene of the crime were deemed by the Buza court as weighing heavily in favor of concluding that DNA sampling is actually for investigatory purposes, as these relate directly to crime scene investigation. Buza, 129 Cal.Rptr.3d at 773-74 (noting that an “arrestee cannot mask his or her identity by wearing gloves while being fingerprinted” or by wearing a mask while being photographed during routine booking procedures). The court concluded, from the text of the California DNA Collection Act, that the purpose of the Act was “unquestionably consonant” with the second component of identification, which is an investigatory process essentially.

Buza, 129 Cal.Rptr.3d at 774. The California Act “involves a programmatic warrantless search of all arrestees’ DNA, without individualized suspicions and prior to any judicial determination of probable cause, much less guilt.” Buza, 129 Cal.Rptr.3d at 780. Because the purpose is “to determine whether the arrestee can be connected to a past unsolved crime and to create a databank through which he or she may now or in the future be connected to a new offense,” the California DNA Collection Act did not meet any of the special needs exceptions and a generalized interest in crime fighting did not outweigh the privacy interests of mere arrestees. Id.

The Court of Appeals of Minnesota weighed-in on the topic, in a certified question context, finding facially unconstitutional a Minnesota statute that required charged defendants to provide a DNA sample, after a judicial finding of probable cause, but prior to a conviction. In re Welfare of C.T.L., 722 N.W.2d 484, 486 (Minn.Ct.App.2006). In C.T.L., a juvenile was charged with fifth-degree assault and aiding and abetting a first-degree aggravated robbery. Id.

The State of Minnesota ordered the juvenile to provide a biological specimen for DNA analysis pursuant to Minn.Stat. § 299C105 (Supp.2005) 26 Id. The juvenile moved for an order certifying the question of ⁵⁸⁶ the statute’s facial constitutionality. 27 Id. The court began its analysis with the premise that outside of “a few specifically established and well-delineated exceptions,” searches conducted “outside the judicial process, without prior approval by a judge or magistrate^] are per se unreasonable.” C.T.L., 722 N.W.2d at 488 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-45 , 91 S.Ct. 2022, 2032 , 29 L.Ed.2d 564, 576 (1971)). Drawing on the holding of Schmerber , 28 the Minnesota court concluded that “establishing probable cause to arrest a person is not, by itself, sufficient to permit a biological specimen to be taken from the person without first obtaining a search warrant.” C.T.L., 722 N.W.2d at 490 (noting the holding in Schmerber, 384 U.S. at 769-70 , 86 S.Ct. at 1835 , 16 L.Ed.2d at 919 , that “[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained”).

The State in C.T.L. advanced a Pool “watershed event” argument as regards the initial finding of probable cause, to which the Minnesota court responded that the “argument fails to recognize ... that probable cause to support a criminal charge is not the same thing as probable cause to issue a search warrant.” 722 N.W.2d at 490 . The court explained that “probable cause [for charging purposes] ... exists when ⁵⁸⁷ the evidence worthy of consideration brings the charge against the prisoner within reasonable probability.” Id. (internal citations omitted). On the other hand, probable cause to support a search warrant is found when there is “a fair probability that contraband evidence of a crime will be found in a particular place.” Id.

(internal citation omitted). Conflation of the two standards of probable cause, the C.T.L. court concluded, dispenses with the Fourth Amendment requirement that, in order to conduct a search, “law-enforcement personnel must obtain a warrant based on a neutral and detached magistrate’s determination that there is a fair probability that the search will produce contraband or evidence of a crime.” 722 N.W.2d at 491 . Relying on the expungement provision in the Minnesota statute (which allowed those found not guilty ultimately or had charges dropped to have their DNA samples destroyed), the court reasoned that those persons found not guilty had an expectation of privacy greater than the State’s need for DNA and, therefore, this interest should be applied reasonably to all persons charged, but not convicted yet. C.T.L., 722 N.W.2d at 491-92 .

Finally, the C.T.L. court concluded that the privacy interest of a person who is charged, but not convicted, is not outweighed by the state’s interest in collecting DNA samples. 722 N.W.2d at 492 . In United States v. Purdy, No. 8:05CR204, 2005 WL 3465721 , ¹, 2005 U.S. Dist. LEXIS 40433 , ¹ (D.Neb.2005), a federal district court, against the recommendation of its magistrate judge, granted a defendant’s motion to suppress DNA evidence collected under the Nebraska Identifying Personal Characteristics Act (“Nebraska Act”), which allowed law enforcement, without a court order, to collect DNA samples from arrestees. 29 Purdy was arrested on an outstanding warrant ⁵⁸⁸ and, at arrest, found to possess a firearm. Purdy, 2005 WL 3465721 , at ¹, 2005 U.S. Dist.

LEXIS 40433 , at ³. After his arrest, correctional officers collected forcefully DNA samples, causing physical injuries to Purdy that required medical treatment. Id. Conceding that the Fourth Amendment does not protect a “characteristic that a person knowingly exposes to the public,” like fingerprints or visual likeness, the court distinguished DNA as not exposed to the public and able to reveal medical facts for which individuals have a reasonable expectation of privacy.

Purdy, 2005 WL 3465721 , at ³-4, 2005 U.S. Dist. LEXIS 40433 , at ¹¹. Beginning with the Katz premise that a search without a warrant is per se unreasonable, the court concluded that none of the “special needs” exceptions were applicable and used the totality of the circumstances balancing test to evaluate Purdy’s challenge. Purdy, 2005 WL 3465721 , at ⁴-5, 2005 U.S. Dist.

LEXIS 40433 , at ¹³-15. The Nebraska Act did not provide a constitutional basis for the search of Purdy because the statute would allow warrantless DNA sampling of anyone arrested, “without the showing of any nexus between the alleged crime and the information that a DNA test would reveal.” Purdy, 2005 WL 3465721 , at ⁶-7, 2005 U.S. Dist. LEXIS 40433 , at ²¹-22. Comparing the expectation of privacy and the government interest in convicts, parolees, and probationers to that of arrestees, the court resolved that an arrestee’s expectation of privacy outweighs the government desire for warrantless searches.

Purdy, 2005 WL 3465721 , at ⁶-7, 2005 U.S. Dist. LEXIS 40433 , at ²⁰-21. Because probable cause for arrest is not the same as required for a search, “[a] person arrested, but not convicted, for a certain crime cannot be forced to provide DNA “identification” evidence without a showing that such evidence would identify him as the perpetrator of the crime.” Purdy, 2005 WL 3465721 , at ⁷, 2005 U.S. Dist. LEXIS 40433 , at ²².

The court noted also that its holding did not prevent all arrestees from being subjected to ⁵⁸⁹ DNA sampling; rather, law enforcement officers would need to obtain a search warrant from a “neutral and detached judicial officer.” Purdy, 2005 WL 3465721 , at ⁷, 2005 U.S. Dist. LEXIS 40433 , at ²³. A fractured, three-judge panel of the Arizona intermediate appellate court upheld an Arizona statute allowing a judge to condition pre-trial release upon collection of a DNA sample. Mario W.