Justia.com Opinion Summary: Defendant Randolph Johnson was charged with felony domestic assault and misdemeanor fifth-degree assault. As part of a negotiated plea, Defendant pleaded guilty to an amended charge of misdemeanor domestic assault, and the State dismissed the felony charge. The district court ordered that Defendant submit to a DNA sample pursuant to Minn. stat. 609.117, subd. 1(1), which requires a defendant charged with a felony and then convicted of a misdemeanor arising out of the same set of circumstances to submit a DNA sample for the limited purpose of criminal identification, after concluding that the statute was constitutional as applied to Defendant. The Supreme Court affirmed after applying a totality-of-the-circumstances test, holding (1) the State's legitimate governmental interests in conducting a search of Defendant to collect a biological specimen for criminal identification purposes outweighed Defendants' reduced expectation of privacy following his misdemeanor conviction arising out of the same set of circumstances as his felony charge; (2) consequently, the statute did not violate the prohibitions against unreasonable searches and seizures in the state and federal constitutions; and (3) Defendant's equal protection claim failed.
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STATE OF MINNESOTA
IN SUPREME COURT
A09-0247
Court of Appeals
Dietzen, J.
Dissenting, Meyer, Page, and Anderson, Paul H., JJ.
State of Minnesota,
Respondent,
vs.
Filed: January 25, 2012
Office of Appellate Courts
Randolph Johnson, Jr.,
Appellant.
________________________
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.
William M. Ward, Chief Hennepin County Public Defender, Paul J. Maravigli, Assistant
Public Defender, Minneapolis, Minnesota, for appellant.
________________________
SYLLABUS
1.
As applied to appellant, Minn. Stat. § 609.117, subd. 1(1) (2010), which
requires a defendant charged with a felony and then convicted of a misdemeanor arising
out of the same set of circumstances to provide a DNA sample for identification
purposes, does not violate the prohibitions against unreasonable searches and seizures in
the U.S. and Minnesota Constitutions.
1
2.
As applied to appellant, Minn. Stat. § 609.117, subd. 1(1), which requires a
defendant charged with a felony and then convicted of a misdemeanor arising out of the
same set of circumstances to provide a DNA sample for identification purposes, does not
violate the Equal Protection Clauses of the U.S. and Minnesota Constitutions.
Affirmed.
OPINION
DIETZEN, Justice.
This case presents the question of whether Minn. Stat. § 609.117, subd. 1(1)
(2010), violates the prohibition against unreasonable searches and seizures, or the Equal
Protection Clause in either the U.S. or Minnesota Constitutions.
Subdivision 1(1)
requires a defendant charged with a felony and then convicted of a misdemeanor arising
out of the same set of circumstances “to provide a biological specimen” to determine the
person’s DNA profile for the limited purpose of criminal identification. Applying the
totality-of-the-circumstances test, we conclude that the State’s legitimate governmental
interests in conducting a search of Johnson to collect a biological specimen for criminal
identification purposes outweigh appellant’s reduced expectation of privacy following his
misdemeanor conviction arising out of the same set of circumstances as his felony
charge. Consequently, as applied to Johnson, Minn. Stat. § 609.117, subd. 1(1), does not
violate the prohibitions against unreasonable searches and seizures in the U.S. and
Minnesota Constitutions. We also conclude that Johnson’s equal protection claim fails.
Accordingly, we affirm.
2
In September 2008, Johnson was charged with felony domestic assault in violation
of Minn. Stat. § 609.2247, subd. 2 (2010) (prohibiting a person from assaulting a family
or household member by strangulation), and misdemeanor fifth-degree assault in
violation of Minn. Stat. § 609.224, subd. 1(2) (2010) (prohibiting a person from
intentionally inflicting or attempting to inflict bodily harm on another), arising out of an
incident in which Johnson allegedly punched and strangled A.J. while Johnson was
intoxicated.
Before trial, the State offered to dismiss the felony domestic assault charge in
exchange for Johnson’s guilty plea to an amended charge of misdemeanor domestic
assault in violation of Minn. Stat. § 609.2242, subd. 1(1) (2010) (prohibiting a person
from engaging in conduct with the intent to cause another to fear immediate bodily
harm). Johnson accepted the offer. At the guilty plea hearing, the parties disagreed about
whether Johnson was required to submit a DNA sample pursuant to section 609.117,
subdivision 1(1). The district court allowed the parties to brief the DNA-sample issue,
and indicated that if the court ruled against Johnson, he could withdraw his guilty plea.
Johnson pleaded guilty to the amended charge, and the district court scheduled a
sentencing hearing.
At the sentencing hearing, Johnson argued that the portion of section 609.117,
subdivision 1(1), that requires a defendant convicted of a misdemeanor to submit a DNA
sample violated the prohibitions against unreasonable searches and seizures and was a
denial of equal protection of the laws in violation of the U.S. and Minnesota
Constitutions. The district court rejected Johnson’s arguments and concluded the statute
3
is constitutional. Johnson chose not to withdraw his guilty plea, and the court entered a
judgment of conviction and imposed sentence. Johnson’s 90-day sentence was stayed,
and Johnson was placed on probation for two years.
The conditions of Johnson’s
probation were, among other things: (1) that he not commit another assault, violate a
protection order applicable to him, or interfere with a 911 call; (2) that he complete a
domestic violence education program; (3) that he submit to random urinalysis; and
(4) that he abstain from alcohol and non-prescribed drugs. The court also ordered the
DNA sample, but stayed the order pending appeal.
In a published opinion, the court of appeals affirmed the district court’s conclusion
that section 609.117, subdivision 1(1), is constitutional as applied to a defendant charged
with a felony and then convicted of a misdemeanor arising out of the same set of
circumstances. State v. Johnson, 777 N.W.2d 767, 772 (Minn. App. 2010). The court
also denied Johnson’s equal protection challenge on the grounds that Johnson failed to
identify the category of persons he considers to be similarly situated to himself, and
therefore failed to demonstrate that section 609.117, subdivision 1(1), results in a denial
of equal protection of the laws. Id. Subsequently, Johnson filed a petition for review,
which we granted.
I.
Johnson argues that Minn. Stat. § 609.117, subd. 1(1), is unconstitutional because
it requires a defendant convicted of a misdemeanor to provide a DNA sample in violation
of the Fourth Amendment to the U.S. Constitution and Article I, Section 10, of the
Minnesota Constitution. The State argues that a defendant charged with a felony and
4
then convicted of a misdemeanor arising out of the same set of circumstances has a
reduced expectation of privacy, and that the State’s interest in DNA collection outweighs
that reduced expectation of privacy; therefore, collecting a DNA sample from that
defendant is not an unreasonable search or seizure.
The constitutionality of a statute presents a question of law, which we review
de novo. State v. Melde, 725 N.W.2d 99, 102 (Minn. 2006). We presume Minnesota
statutes are constitutional and will strike down a statute as unconstitutional only if
absolutely necessary. See State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997). The party
challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt
that the statute violates a constitutional provision. State v. Bartylla, 755 N.W.2d 8, 14
(Minn. 2008).
To answer the question presented, we must examine the statutes that authorize the
collection of a biological specimen and the provisions of the U.S. and Minnesota
Constitutions that prohibit unreasonable searches and seizures, and then apply the
constitutional protections to the statutes at issue in this case.
Section 609.117, subdivision 1, provides that a
court shall order an offender to provide a biological specimen for the
purpose of DNA analysis as defined in section 299C.155 when: (1) the
court sentences a person charged with committing or attempting to commit
a felony offense and the person is convicted of that offense or of any
offense arising out of the same set of circumstances.[1]
1
The dissent suggests that Minn. Stat. § 609.117 compels the collection of
“biological specimens from persons merely charged for certain crimes.” But the plain
language of section 609.117 requires a conviction before a biological sample may be
collected.
5
It is undisputed that Johnson, who was charged with felony domestic assault by
strangulation and then convicted of misdemeanor domestic assault “arising out of the
same set of circumstances,” was convicted of a crime that satisfies the requirements of
section 609.117, subdivision 1(1).
Section 609.117, subdivision 1, incorporates the definition of “DNA analysis” in
section 299C.155, subdivision 1.
DNA analysis means “the process through which
deoxyribonucleic acid (DNA) in a human biological specimen is analyzed and compared
with DNA from another human biological specimen for identification purposes.” Minn.
Stat. § 299C.155, subd. 1 (2010). Thus, the term “DNA analysis” is expressly limited to
the collection and analysis of a biological sample for identification purposes. Id.; accord
Minn. Stat. § 299C.09 (2010). Section 609.117, subdivision 1, does not authorize the
collection of a biological sample for any other purpose.2
The DNA collection authorized by section 609.117, subdivision 1, is conducted
using uniform procedures and protocols. Minn. Stat. § 299C.155 (2010). A biological
2
The dissent argues that the State has failed to establish that the collection of a
biological specimen to obtain highly personal genetic information is a reasonable search.
But that is not the issue before the court. Rather, the question is whether the collection of
a biological specimen to develop a DNA profile for criminal identification purposes is a
reasonable search. Section 609.117, subdivision 1, does not allow the State to extract
highly personal genetic information from the biological specimen taken; instead, the
statute only allows the State to use the biological specimen to produce a DNA profile for
criminal identification purposes, employing human genome locations that contain no
genetic information. Moreover, there is no evidence that the State has or intends to use
the biological specimens to extract highly personal genetic information. Thus, the
dissent’s argument is without merit.
6
specimen may be collected using a buccal swab, which involves “gently swab[bing] the
inside of the cheek [with a sterile cotton swab].” Minn. Dep’t of Pub. Safety, Guide to
DNA Analysis 1 (2003). The DNA profile (which does not contain the person’s full DNA
sequence) is placed in a database that is linked to the National DNA Offender Database
(CODIS). Id. at 3; Nat’l Inst. of Justice, The Future of Forensic DNA Testing 19-20
(2000). To ensure privacy, personal identifiers such as social security number and caserelated information are not stored in the CODIS database. Nat’l Inst. of Justice, supra, at
20.
The DNA profiles stored in the database may be accessed by authorized law
enforcement personnel solely for law enforcement identification purposes.
Minn.
Stat. § 299C.155, subd. 3; see also 42 U.S.C. § 14132(b)(3)(a) (2006).
The precise question we must decide is whether the collection of biological
specimens for identification purposes authorized by section 609.117, subdivision 1(1), is
an unreasonable search and seizure in violation of the U.S. and Minnesota Constitutions.
The Fourth Amendment to the U.S. Constitution states that “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. The language of Article I,
Section 10, of the Minnesota Constitution is identical. “The touchstone of the Fourth
Amendment is reasonableness . . . .” United States v. Knights, 534 U.S. 112, 118 (2001).
Generally, the reasonableness of a search depends upon whether the government has
complied with the Warrant Clause by obtaining a warrant from a neutral magistrate based
upon probable cause. United States v. U.S. District Court, 407 U.S. 297, 315-16 (1972).
Applying a totality-of-the-circumstances test that balances the State’s interests against the
7
intrusion into an individual’s privacy, the U.S. Supreme Court has carved out a number
of exceptions to the Warrant Clause. Knights, 534 U.S. at 118-19, 121-22.
Recently, the Supreme Court applied the totality-of-the-circumstances test to cases
involving warrantless searches of probationers and parolees convicted of a felony.
Samson v. California, 547 U.S. 843, 848 (2006); Knights, 534 U.S. at 118-19. In United
States v. Knights, the Court considered whether a warrantless search of a probationer’s
apartment supported by reasonable suspicion and authorized by a condition of his
probation was reasonable “under [the Court’s] general Fourth Amendment approach of
examining the totality of the circumstances.” 534 U.S. at 118 (internal quotation marks
omitted) (citation omitted). The Court concluded that the “reasonableness of a search 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 118-19 (internal quotation marks omitted)
(citation omitted). The Court reasoned that “probationers do not enjoy the absolute
liberty to which every citizen is entitled.
Just as other punishments for criminal
convictions curtail an offender’s freedoms, a court granting probation may impose
reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding
citizens.” Id. at 119 (internal quotation marks omitted) (citation omitted).
Similarly, in Samson v. California, the Court applied the totality-of-thecircumstances test to a suspicionless search of a parolee conducted pursuant to a
California law, which provided that, as a condition for release, every prisoner eligible for
state parole must agree to be subject to a search or seizure by a parole officer or other
8
peace officer with or without a search warrant and with or without cause. 547 U.S. at
846, 848. In doing so, the Court assessed “ ‘the degree to which [the search] intrude[d]
upon an individual’s privacy’ ” against “ ‘the degree to which [the search was] needed for
the promotion of legitimate governmental interests.’ ” Id. at 848 (quoting Knights, 534
U.S. at 118-19). In evaluating the degree of intrusion, the Court reaffirmed its holding in
Knights that “by virtue of their status alone, probationers do not enjoy the absolute liberty
to which every citizen is entitled.” Id. at 848-49 (citing Knights, 534 U.S. at 119)
(internal quotation marks omitted).
A majority of federal circuits have applied the Knights-Samson totality-of-thecircumstances test to address the reasonableness of warrantless, suspicionless searches
under the Federal DNA Act, 42 U.S.C. § 14135a (2006). Currently, eight circuits have
concluded these searches are not unreasonable and therefore do not violate the Fourth
Amendment.3
In State v. Bartylla, we considered whether the collection of a convicted felon’s
DNA, as authorized by Minn. Stat. § 609.117 (2002), violated the prohibitions of the U.S.
and Minnesota Constitutions against warrantless, suspicionless searches. 755 N.W.2d 8,
3
See United States v. Weikert, 504 F.3d 1, 11, 15 (1st Cir. 2007) (applying the
totality-of-the-circumstances test to analyze and uphold the Federal DNA Act); United
States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005) (same); Groceman v. U.S. Dep’t of
Justice, 354 F.3d 411, 413-14 (5th Cir. 2004) (same); United States v. Conley, 453 F.3d
674, 679-81 (6th Cir. 2006) (same); United States v. Kraklio, 451 F.3d 922, 924-25 (8th
Cir. 2006) (same); United States v. Kincade, 379 F.3d 813, 832, 839 (9th Cir. 2004)
(plurality opinion) (same); Banks v. United States, 490 F.3d 1178, 1193 (10th Cir. 2007)
(same); Johnson v. Quander, 440 F.3d 489, 496 (D.C. Cir. 2006) (same).
9
14, 18 (Minn. 2008). Bartylla was convicted of murder in the first degree for a homicide
that had grown cold until a DNA sample collected from Bartylla three years later
matched DNA collected during the murder investigation.
Id. at 12.
Applying the
Knights-Samson totality-of-the-circumstances test, we concluded that “as a result of his
felony burglary conviction, the warrantless, suspicionless taking of Bartylla’s DNA
pursuant to Minn. Stat. § 609.117 for purposes of placing his DNA profile into the statemandated database did not violate the Fourth Amendment’s prohibition against
unreasonable searches and seizures.” Id. at 17. We reasoned that as an incarcerated
felon, Bartylla had a lower expectation of privacy than a probationer, parolee, or
conditional releasee, and the physical intrusion was “minimal.” Id. at 17-18. On the
other hand, the State’s interests of “exonerating the innocent, deterring recidivism,
identifying offenders of past and future crimes, and bringing closure for victims of
unsolved crimes” were substantial. Id. at 18. For the same reasons, we concluded the
DNA collection authorized by section 609.117 did not violate Article I, Section 10 of the
Minnesota Constitution.4 Id. at 19. In doing so, we reasoned that the “totality-of-the-
4
According to the dissent, the statutory DNA collection procedure is a “full-scale
personal DNA search[]” that exposes “exceptionally private information” to public view,
including a “person’s health, propensity for particular disease, race and gender
characteristics, and perhaps even propensity for certain conduct.” We disagree.
Section 609.117, subdivision 1(1), authorizes the collection of DNA samples from a
narrowly defined set of individuals convicted of a misdemeanor arising out of the same
set of circumstances that provided probable cause for a felony charge. The governmental
use of the data is to determine a DNA profile for the limited purpose of criminal
identification. Further, access to the information is restricted to law enforcement officers
conducting criminal investigations. In summary, nothing in Minn. Stat. § 609.117, subd.
1, authorizes a full-scale personal DNA search that exposes “exceptionally private
(Footnote continued on next page.)
10
circumstances test we adopt today” provided adequate protections to Minnesota’s
citizens, and therefore we declined to interpret Article I, Section 10 more broadly than the
Fourth Amendment.5 Id. at 18-19.
The State admits that the taking of Johnson’s biological specimen pursuant to
section 609.117, subdivision 1(1), for criminal identification purposes constitutes a
search within the meaning of the U.S. and Minnesota Constitutions.6 See Bartylla, 755
N.W.2d at 14 (analyzing DNA collection pursuant to section 609.117 as a Fourth
(Footnote continued from previous page.)
information” to public view, including a “person’s health, propensity for particular
disease, race and gender characteristics, and perhaps even propensity for certain
conduct.” Rather, Minn. Stat. § 299C.155 limits the use of the DNA profile to criminal
identification. Specifically, subdivisions 3 and 4 provide that the DNA profile may be
used only for criminal identification purposes. Id., subds. 3, 4.
5
One commentator has criticized the Knights-Samson totality-of-the-circumstances
test. See 5 Wayne R. LaFave, Search & Seizure, § 10.10(c) (4th ed. 2004). But LaFave’s
criticisms of the Knights-Samson test would apply equally to felony and misdemeanor
cases. In Bartylla, which was decided four years after LaFave’s criticism, we adopted the
Knights-Samson totality-of-the-circumstances test, and applied the test to a felony case.
Pursuant to the doctrine of stare decisis, we do not overrule prior decisions absent a
compelling reason. State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009). No compelling
reason has been asserted to overturn Bartylla, and therefore we apply the Knights-Samson
test in this case.
6
At oral argument, Johnson argued that a search subject to Fourth Amendment
protection occurs each time the DNA database is accessed by law enforcement. Johnson
has not previously raised this argument in either the district court or the court of appeals,
and therefore we decline to address it now. State v. Spence, 768 N.W.2d 104, 110 n.6
(Minn. 2009) (declining to address an issue raised for the first time on appeal). We do
note, however, that at least one federal court has held that “the process of matching one
piece of personal information against government records does not implicate the Fourth
Amendment.” Johnson, 440 F.3d at 498. Moreover, the consequences of a conclusion to
the contrary would place an enormous burden on law enforcement because every search
of a fingerprint or DNA database would be subject to Fourth Amendment challenge. See
id. at 499.
11
Amendment search); see also Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 618
(1989) (concluding the collection of biological specimens is a Fourth Amendment
search). Consequently, the question we must examine is the reasonableness of the search
in this case.
The taking of DNA samples for identification purposes implicates two privacy
interests: (1) an expectation of privacy in one’s bodily integrity, and (2) an expectation
of privacy in one’s identity. See United States v. Kriesel, 508 F.3d 941, 946-48 (9th Cir.
2007); United States v. Amerson, 483 F.3d 73, 84-85 (2d Cir. 2007) (cited in Bartylla,
755 N.W.2d at 16-17); see also Skinner, 489 U.S. at 617 (explaining that the collection of
urine intrudes on expectations of privacy that society has long recognized as reasonable
because there are few activities in society more private than the passing of urine; most
people describe it by euphemisms if they talk about it at all); cf. Minn. Stat. § 299C.155,
subd. 3 (providing that DNA data contained in the centralized database is “private data on
individuals”). We implicitly recognized these two privacy interests in Bartylla when we
noted that “the physical intrusion involved in acquiring the DNA sample from Bartylla
for purposes of identification was minimal.” 755 N.W.2d at 18 n.6. We emphasized in
Bartylla that we need not and did not consider whether “an intrusion into Bartylla’s body
to obtain DNA for purposes other than identification [would] be minimal or [would]
12
violate the Fourth Amendment” because those questions were not presented by the DNA
sample collection in Bartylla’s case.7 Id.
Johnson argues Bartylla applies only to the DNA samples taken from defendants
convicted of a felony and incarcerated, who have “severely diminished privacy
expectations.”
Thus, he argues that we should not extend Bartylla beyond those
defendants convicted of a felony. In Bartylla we adopted the Knights-Samson totality-ofthe-circumstances test to determine whether a particular search is reasonable.
Consequently, we must examine the nature of the physical intrusion on Johnson’s bodily
integrity, and Johnson’s reasonable expectation of privacy in his identity. See Bartylla,
755 N.W.2d at 17-18; see also Amerson, 483 F.3d at 84-85.
Here, the prosecutor determined that there was probable cause to charge Johnson
with felony domestic assault by strangulation, in violation of Minn. Stat. § 609.2247,
subd. 2, and the district court signed the complaint, concluding that there was probable
cause to charge Johnson.8
The district court released Johnson on several probationary
conditions, including no use of alcohol, random urinalysis, and no contact with the
7
As discussed in more detail below, Johnson’s and Bartylla’s DNA samples were
collected for the same limited purpose—identification. We do not consider whether an
intrusion into Johnson’s body to obtain DNA for purposes other than identification would
violate the Fourth Amendment.
8
A felony charge can be prosecuted only by complaint or indictment. See Minn. R.
Crim. P. 17.01. Moreover, a complaint cannot be issued without a prosecutor’s signature,
and a judge must make a determination that probable cause exists. Minn. R. Crim. P.
2.01, 2.02; see State v. Lopez, 778 N.W.2d 700, 703 (Minn. 2010) (“A person may be
charged with a crime only where there is probable cause to believe that the person is
guilty . . . .”).
13
victim.9 When Johnson pleaded guilty to the lesser-included offense of misdemeanor
fifth-degree domestic assault arising out of the same set of circumstances as the felony
domestic assault by strangulation charge, the district court ordered that Johnson continue
to submit to random urinalysis, complete domestic abuse treatment, and have no contact
with the victim as part of his two-year probationary term.10
We conclude that the physical intrusion of Johnson’s bodily integrity to acquire
the DNA sample is minimal, especially when compared to the other intrusions Johnson is
subjected to as part of his probation, including random urinalysis. Moreover, the physical
intrusion of Johnson’s bodily integrity—a buccal swab inside Johnson’s cheek—is no
9
Johnson argues that the dismissed felony charge is irrelevant to the analysis. We
disagree. Pursuant to Minn. R. Crim. P. 6.02, the district court properly considered the
serious nature of the felony charge when the court ordered conditions of release,
including random urinalysis, which lowered Johnson’s expectation of privacy. Johnson
has not argued that the felony charge should have been dismissed for lack of probable
cause, nor has he challenged the conditional release terms imposed by the district court.
The temporary reduction in Johnson’s expectation of privacy caused by the lawful
pretrial conditions might not have been sufficient in itself to warrant the collection of a
DNA sample. See In re the Welfare of C.T.L., 722 N.W.2d 484, 491 (Minn. App. 2006).
But it does not follow that the pretrial reduction of Johnson’s expectation of privacy is
irrelevant to the Samson totality-of-the-circumstances test, especially when the pretrial
reduction of Johnson’s expectation of privacy became a long-term probationary condition
of the misdemeanor conviction that arose out of the same set of circumstances as the
felony charge.
10
We note that, pursuant to Minn. Stat. § 609.2242, subd. 3(d) (2010), Johnson’s
misdemeanor conviction prohibits him from possessing a firearm for three years. This
mandatory statutory restriction on firearm possession is another factor that supports a
determination that the circumstances of Johnson’s conviction reduced his expectation of
privacy.
14
greater than the intrusion in Bartylla, which we held constituted a minimal intrusion.
Bartylla, 755 N.W.2d at 18.
We next examine whether Johnson had a reasonable expectation of privacy in his
identity. We have recognized that there is a hierarchy of expectations of privacy, such
that incarcerated prisoners have less of a privacy expectation than probationers, parolees,
or conditional releasees. Id. at 17; State v. Anderson, 733 N.W.2d 129, 139 (Minn. 2007)
(concluding that a defendant’s “reasonable expectation of privacy was diminished merely
by virtue of his status as a probationer”). In Amerson, 483 F.3d at 86, the Second Circuit
concluded that “a probationer’s expectation of privacy in his or her identity is severely
diminished.” Like the court in Amerson, we conclude that Johnson’s status as a
probationer significantly reduced his expectation of privacy in his identity.11
11
The dissent contends that Johnson’s expectation of privacy in biological
specimens containing his DNA is “essentially the same” as an “ordinary citizen.” We
disagree for several reasons. First, Johnson was charged with a felony and convicted of a
misdemeanor arising out of the same set of circumstances. Thus, Johnson is no ordinary
citizen. Additionally, Johnson was required as a condition of probation to submit to
ongoing random urinalyses, which diminishes his expectation of privacy. See Skinner,
489 U.S. at 617 (“[T]he collection and testing of urine intrudes upon expectations of
privacy that society has long recognized as reasonable . . . .”). It is unreasonable to
suggest that a person retains an ordinary citizen’s “high expectation of privacy in his or
her DNA,” when the person’s expectation of privacy has been reduced by the conditions
of his probation, including suspicionless analysis of his urine (which contains his DNA).
There is no material distinction between random urinalysis, which is used to determine
whether the person is using alcohol or drugs, and a DNA profile, which is used to
determine whether the person left DNA at a crime scene. In both situations, the
government collects a biological specimen that is used by a restricted number of persons
for a limited and legitimate governmental interest.
15
On the other side of the totality-of-the-circumstances analysis is “the degree to
which [the DNA collection] is needed for the promotion of legitimate governmental
interests.” Samson, 547 U.S. at 848. Here, the State’s interests in DNA collection under
section 609.117, subdivision 1(1), are the same interests addressed in Bartylla, which
include “exonerating the innocent, deterring recidivism, identifying offenders of past and
future crimes, and bringing closure for victims of unsolved crimes.” 755 N.W.2d at 18.
These substantial interests apply equally whether the offender is convicted of a felony
and incarcerated or is convicted of a misdemeanor arising out of the same set of
circumstances as a felony charge and placed on probation.12
Balancing the State’s
legitimate governmental interests in DNA collection against Johnson’s reduced
expectation of privacy in his identity, we conclude that, as applied here, the statutorilymandated collection of Johnson’s DNA for criminal identification purposes pursuant to
section 609.117, subdivision 1(1), does not violate the U.S. or Minnesota Constitutions.
Johnson argues In re the Welfare of C.T.L., 722 N.W.2d 484 (Minn. App. 2006),
supports his argument that only a felony conviction would satisfy the totality-of-thecircumstances analysis. But C.T.L. involved individuals charged but not yet convicted of
a crime, and therefore is distinguishable. The portions of Minn. Stat. § 299C.105 (2010)
at issue in C.T.L. applied only to DNA collection from juveniles and adults charged with
12
The dissent contends that the State failed to prove that DNA collection was
necessary to promote legitimate State interests. But Johnson did not challenge the State’s
assertion that its interests in DNA collection were the same as in Bartylla—“exonerating
the innocent, deterring recidivism, identifying offenders of past and future crimes, and
bringing closure for victims of unsolved crimes.” Rather, Johnson argued that his
privacy interest outweighs the State’s interests.
16
specific felonies, and did not require a conviction prior to collecting DNA. C.T.L., 722
N.W.2d at 488.
The court of appeals concluded that the DNA collection was
unreasonable under the totality-of-the-circumstances test because a charged individual
does not have the same diminished expectation of privacy as a convicted individual, and
therefore the State’s interests did not outweigh the expectation of privacy of an individual
prior to conviction.
Id. at 491-92.
Johnson, however, has been convicted of a
misdemeanor arising out of the same set of circumstances as a felony charge, and
therefore his situation is distinguishable from individuals who have been charged but not
convicted of any offense.
Johnson also argues that decisions from other state courts support his conclusion
that a felony conviction is required before DNA may be collected without a warrant. The
two cases upon which Johnson relies are easily distinguishable. In State v. McKinney, the
Nebraska Supreme Court analyzed the reasonableness of a statute allowing the collection
of DNA samples from individuals for use in a specific investigation, and concluded that
the government’s interest in taking DNA for investigation of a particular crime did not
outweigh a defendant’s privacy interest. 730 N.W.2d 74, 83, 86 (Neb. 2007). The
differences in the purposes of the Minnesota and Nebraska statutes, however,
significantly change the totality-of-the-circumstances analysis. Specifically, Minn. Stat.
§ 609.117, subd. 1(1), requires collection from an entire category of offenders for
inclusion in a DNA database. Also, in Quarterman v. State, the Georgia Supreme Court
addressed whether a statute requiring DNA collection from felons but not from
misdemeanants violated equal protection. 651 S.E.2d 32, 34 (Ga. 2007). The reduced
17
expectation of privacy for misdemeanants was not at issue in Quarterman; rather, the
only question was whether a rational distinction could be made between felons and
misdemeanants. Id. at 34.
Moreover, other jurisdictions have not uniformly limited DNA collection to felony
convictions.13 Specifically, state courts have not adopted a bright-line rule excluding
DNA collection from individuals with a misdemeanor conviction. Rather, the courts
have applied a totality-of-the-circumstances test to the facts of each case.
In summary, we conclude that when a person is convicted of a misdemeanor
offense that arises out of the same set of circumstances as a felony charge and that
person’s sentence includes probation with conditions such as random urinalyses, there is
a significant reduction in that person’s expectation of privacy in his or her identity.
Additionally, the State’s interests in exonerating the innocent, deterring recidivism,
identifying offenders of past and future crimes, and bringing closure to victims of
unsolved crimes are substantial. Applying the totality-of-the-circumstances test to the
13
See Me. Rev. Stat. Ann. tit. 25, § 1574 (4)(N), 5(H) (2007) (requiring DNA
collection from every person convicted of “[a]ny lesser included offense” of any charged
qualifying crime); N.J. Stat. Ann. § 53:1-20.20g (West 2010) (“[E]very person convicted
. . . of a crime shall have a blood sample drawn or other biological sample collected for
purposes of DNA testing.”); Tex. Gov’t Code Ann. § 411.1471 (West 2005) (requiring
DNA collection from a defendant who is “indicted or waives indictment” for specific
felony offenses); see also United States v. Pool, 645 F. Supp. 2d 903, 906 (E.D. Cal.
2009) (holding that no constitutional violation exists when a DNA sample is collected
after a probable cause determination pursuant to Federal DNA Act); State v. O’Hagen,
914 A.2d 267, 270-71 (N.J. 2007) (upholding constitutionality of a statute requiring DNA
collection from “[e]very person convicted or found not guilty by reason of insanity of a
crime”); Anderson v. Commonwealth, 650 S.E.2d 702, 706 (Va. 2007) (upholding the
constitutionality of a statute requiring DNA collection upon arrest for specific crimes
rather than upon conviction).
18
facts of this case, we conclude that DNA collection by buccal swab for identification
purposes is not an unreasonable search. Accordingly, we conclude that the statutorilymandated collection of Johnson’s DNA pursuant to section 609.117, subdivision 1(1),
does not constitute an unreasonable search or seizure under the U.S. or Minnesota
Constitutions.
II.
Johnson argues that Minn. Stat. § 609.117, subd. 1(1), deprives him of his right to
equal protection of the laws in violation of the U.S. and Minnesota Constitutions.
Specifically, he contends that the statute is unconstitutional because it requires a
defendant charged with a felony and then convicted of a misdemeanor arising out of the
same set of circumstances to provide a DNA sample, but does not require a DNA sample
from defendants convicted of a misdemeanor but not charged with a felony. The State
counters that these two categories of defendants are not similarly situated, and thus no
equal protection violation exists.
The constitutionality of a statute presents a question of law that we review
de novo. State v. Melde, 725 N.W.2d 99, 102 (Minn. 2006). In the equal protection
context, we presume Minnesota statutes are constitutional when they do not involve a
fundamental right or a suspect class. See State v. Benniefield, 678 N.W.2d 42, 45 (Minn.
2004). The party challenging the constitutionality of a statute bears “the very heavy
burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.”
State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997).
19
The Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution provides that “[n]o state shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” Article I, Section 2 of the Minnesota Constitution
provides that “[n]o member of this state shall be disfranchised or deprived of any of the
rights or privileges secured to any citizen thereof, unless by the law of the land or the
judgment of his peers.”
We have previously concluded “[b]oth clauses have been
analyzed under the same principles.” Kolton v. Cnty. of Anoka, 645 N.W.2d 403, 411
(Minn. 2002). Specifically, the “Equal Protection Clause does not forbid classifications.
It simply keeps governmental decisionmakers from treating differently persons who are
in all relevant aspects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); see also Behl,
564 N.W.2d at 568 (stating that equal protection “does not require the state to treat things
that are different in fact or opinion as though they were the same in law”).
Our precedent establishes different tests for rational basis review.
First, the
“similarly situated” test states that a statute violates equal protection when it “prescribes
different punishments or different degrees of punishment for the same conduct committed
under the same circumstances by persons similarly situated.”
State v. Frazier, 649
N.W.2d 828, 837 (Minn. 2002). Additionally, we have applied the three-prong Russell
test to equal protection claims. Benniefield, 678 N.W.2d at 46.
The threshold question in an equal protection claim is whether the claimant is
treated differently from others to whom the claimant is similarly situated in all relevant
respects. State v. Cox, 798 N.W.2d 517, 521-22 (Minn. 2011). We impose this threshold
showing because the Equal Protection Clause does not require that the State treat persons
20
who are differently situated as though they were the same. Id. at 521. Here, Johnson has
not made this showing. Johnson, as a misdemeanant with a dismissed felony charge, is
not similarly situated to a misdemeanant who has not been charged with a felony.
Specifically, Johnson was charged with felony domestic assault by strangulation and
misdemeanor fifth-degree assault. The complaint was signed by the prosecutor and a
judge determined that the complaint was supported by probable cause. See Minn. R.
Crim. P. 2.01. While the felony charge was dismissed as part of the plea agreement, the
felony charge supports the conclusion that this conduct was more serious than conduct
supporting only a misdemeanor charge.
Objectively, Johnson’s situation as a
misdemeanant with a dismissed felony charge is factually different from that of a
misdemeanant who has not been charged with a felony. Consequently, we conclude that
Johnson is not similarly situated to misdemeanants without a felony charge, and therefore
his equal protection claim fails.
Accordingly, we hold that section 609.117, subdivision 1(1) does not violate the
Equal Protection Clauses of the U.S. or Minnesota Constitutions by requiring Johnson to
submit a DNA sample for analysis.
Affirmed.
21
DISSENT
MEYER, Justice (dissenting).
I respectfully dissent.
The collection of the biological specimen for DNA
constitutes an intrusion upon personal security and dignity. The search of the DNA
implicates strong privacy interests apart from those intruded upon by the collection of the
specimen.
Given the potential for exposure of exceptionally private information
contained in the DNA, I find these full-scale personal DNA searches highly intrusive.
The State claims that the collection and retention of biological specimens from
misdemeanants for DNA serves the same interests as the collection and retention of
specimens from felony offenders. But the State has not substantiated these claims. I
would conclude that the State’s interest in taking a biological specimen from a person
convicted of only a misdemeanor for DNA profiling and retention, without probable
cause, does not outweigh the misdemeanant’s privacy interests. I would hold that the
DNA collection statute is unconstitutional as applied to a person convicted of only a
misdemeanor.
I.
Randolph Johnson, Jr., was charged with felony domestic assault (strangulation),
Minn. Stat. § 609.2247, subd. 2 (2010), and fifth-degree misdemeanor assault (harm),
Minn. Stat. § 609.224, subd. 1(2) (2010), arising out of an incident with his wife in his
home.
Johnson pleaded guilty to misdemeanor domestic assault (fear), Minn. Stat.
§ 609.2242, subd. 1(1) (2010). Johnson admitted to raising his voice to his wife in a
manner that may have put her in fear of imminent bodily harm. The court sentenced
D-1
Johnson to a 90-day stayed sentence, with credit for four days already served, and placed
him on supervised probation. Pursuant to Minn. Stat. § 609.117, subd. 1(1) (2010),
which requires collection of a DNA sample from any person charged with a felony
offense and convicted of “any offense arising out of the same set of circumstances” as the
felony charge, the court also ordered that Johnson provide a DNA sample but stayed that
order pending the result of an appeal.
Johnson appealed, arguing that the application of Minn. Stat. § 609.117, subd.
1(1), to a person who was not convicted of a felony violates (1) his right to be free from
unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution
and Article I, Section 10, of the Minnesota Constitution; and (2) his right to equal
protection under the Fourteenth Amendment to the U.S. Constitution and Article I,
Section 2, of the Minnesota Constitution. The court of appeals affirmed the decision of
the district court.
Minnesota Statutes § 609.117, subd. 1(1), requires “a person charged with
committing or attempting to commit a felony offense and . . . convicted of that offense or
of any offense arising out of the same set of circumstances” to provide a DNA sample for
inclusion in a database maintained by the Bureau of Criminal Apprehension (BCA). The
BCA database is a “centralized system to cross-reference data obtained from DNA
analysis.” Minn. Stat. § 299C.155, subd. 3 (2010). The database can be used to generate
investigative leads by matching DNA profiles from samples collected at a crime scene to
known profiles in the DNA database. State v. Bartylla, 755 N.W.2d 8, 12 n.1 (Minn.
D-2
2008). When this process results in the identification of a previously unknown suspect, it
is called a “cold hit.” Id.
Johnson challenges the constitutionality of Minn. Stat. § 609.117, subd. 1(1),
arguing that the statute authorizes an unreasonable warrantless, suspicionless search in
violation of the Fourth Amendment to the U.S. Constitution and Article I, Section 10, of
the Minnesota Constitution. The State argues that the statute is constitutional because the
factors on which we relied in Bartylla to uphold the collection of biological specimens
for DNA from convicted, incarcerated felony offenders also apply to misdemeanants.
II.
The constitutionality of a statute is a question of law, which we review de novo.
Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). We presume
that statutes are constitutional and will strike down a statute “with extreme caution and
only when absolutely necessary.” Id. The party challenging the statute has the burden of
showing that the statute is unconstitutional beyond a reasonable doubt. State v. Merrill,
450 N.W.2d 318, 321 (Minn. 1990).
The Fourth Amendment to the U.S. 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.
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U.S. Const. amend. IV.1 “The Amendment guarantees the privacy, dignity, and security
of persons against certain arbitrary and invasive acts by officers of the Government or
those acting at their direction.” Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613-14
(1989). The collection and analysis of a DNA sample through either a blood draw or a
buccal swab is a search. See Skinner, 489 U.S. at 616 (noting that analysis of blood
reveals private facts); United States v. Amerson, 483 F.3d 73, 77 (2d Cir. 2007) (“[T]he
extraction and analysis of plaintiffs’ blood for DNA-indexing purposes constitute[s] a
search . . . .” (quoting Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir. 2005))); Bartylla,
755 N.W.2d at 14.
To place the current debate in perspective, a brief tour of Fourth Amendment
history is required. Under the Fourth Amendment, “a search conducted without a warrant
issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically
established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). Established
exceptions to the warrant requirement include searches incident to lawful arrest, Chimel
v. California, 395 U.S. 752, 762-63 (1969), searches conducted pursuant to probable
cause and exigent circumstances, Chambers v. Maroney, 399 U.S. 42, 51-52 (1970),
searches conducted after obtaining voluntary consent, Schneckloth, 412 U.S. at 219, stop
and frisk, Terry v. Ohio, 392 U.S. 1, 27 (1968), and administrative/regulatory “special
needs searches,” Camara v. Municipal Court, 387 U.S. 523, 537 (1967).
1
Article I, Section 10, of the Minnesota Constitution uses identical language.
D-4
The special needs exception applies “in those exceptional circumstances in which
special needs, beyond the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable.”
New Jersey v. T.L.O, 469 U.S. 325,
351 (1985) (Blackmun, J., concurring). In Camara, the Supreme Court found that code
enforcement housing inspections would satisfy constitutional concerns “if reasonable
legislative or administrative standards for conducting an area inspection are satisfied with
respect to a particular dwelling.” 387 U.S. at 538. The Court determined reasonableness
“by balancing the need to search against the invasion which the search entails.” Id. at
537. The Court considered several factors, including that inspection schemes were likely
the only effective means to gain compliance with minimal code standards and the
“limited invasion of the urban citizen’s privacy.” Id. at 537.
The Camara balancing test has been used in circumstances in which the
government’s need concerned the interest in maintaining the regulatory scheme. E.g.,
Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (balancing government’s
need for sobriety checkpoints system to eradicate drunk driving against degree of
intrusion upon briefly stopped motorists); Skinner, 489 U.S. at 620-24 (balancing need
for mandatory drug and alcohol testing scheme to ensure safety of traveling public
against privacy interests of covered railroad employees); T.L.O., 469 U.S. at 338-41
(Blackman, J., concurring) (balancing schoolchildren’s privacy interest against school’s
interest in maintaining discipline).
In Griffin v Wisconsin, the Supreme Court used the special needs exception in
upholding a warrantless search of a probationer’s home pursuant to Wisconsin’s search
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regulation and “reasonable grounds” to believe that contraband was present. 483 U.S.
868, 875-76 (1987). The Court balanced the special needs of the probation system and
practicality of the warrant and probable-cause requirements against “the effect of
dispensing with a warrant upon the probationer.” Id. at 896. The Court observed that
“[a] State’s operation of a probation system, like its operation of a school, government
office or prison, or its supervision of a regulated industry, likewise presents ‘special
needs’ beyond normal law enforcement that may justify departures from the usual
warrant and probable-cause requirements.” Id. at 873-74. The Court believed that “[a]
warrant requirement would interfere to an appreciable degree with the probation system,
setting up a magistrate rather than the probation officer as the judge of how close a
supervision the probationer requires.” Id. at 876. The Court focused on the probationerprobation officer relationship, noting that “[a]lthough a probation officer is not an
impartial magistrate, neither is he the police officer who normally conducts searches
against the ordinary citizen.” Id. The probation officer, “while assuredly charged with
protecting the public interest, is also supposed to have in mind the welfare of the
probationer,” called a “client” in the applicable regulations. Id.
The Court returned to probation searches in United States v. Knights, 534 U.S. 112
(2001). Knights was sentenced in state court to summary probation for a drug offense.
Id. at 114. The probation order included the condition that Knights would “[s]ubmit his
. . . person, property, place of residence, vehicle, personal effects, to search at anytime,
with or without a search warrant, warrant of arrest or reasonable cause by any probation
officer or law enforcement officer.” Id. Several days later, a sheriff’s detective, aware of
D-6
the search condition in the probation order, conducted a warrantless search of Knights’
apartment on reasonable suspicion of arson. Id. at 115-16. Knights was indicted in
federal court on several charges, but the evidence obtained in the search of his apartment
was suppressed “on the ground that the search was for ‘investigatory’ rather than
‘probationary’ purposes.”
Id. at 116.
The Court of Appeals for the Ninth Circuit
affirmed. Id.
The Supreme Court reversed, rejecting Knights’ view that Griffin controlled, and
declining to decide whether the search condition constituted valid consent. Id. at 117-18,
122. Instead, the Court upheld the search under a new “general Fourth Amendment
approach of ‘examining the totality of the circumstances’ ” and determining the
reasonableness of the search “ ‘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.’ ” Knights, 534 U.S. at 118-19
(quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999); Ohio v. Robinette, 519 U.S.
33, 39 (1996)).2
2
The “totality of the circumstances” had generally been associated with the validity
of a consent search or probable cause. See Robinette, 519 U.S. at 39-40 (stating that
reasonableness of a search “is measured in objective terms by examining the totality of
the circumstances” and that “[t]he Fourth Amendment test for a valid consent to search is
that the consent be voluntary, and ‘[v]oluntariness is a question of fact to be determined
from all the circumstances.’ ” (quoting Schneckloth, 412 U.S. at 248-49)); Illinois v.
Gates, 462 U.S. 213, 238 (1983) (explaining that the “totality-of-the-circumstances
analysis . . . traditionally has informed probable-cause determinations”). “The test [had]
never been used, however, to justify suspicionless law enforcement searches.” United
States v. Kincade, 379 F.3d 813, 862 (9th Cir. 2004) (Reinhardt, J., dissenting).
D-7
On the interest of privacy, the Court found that where the “probation order clearly
expressed the search condition,” and that “Knights was unambiguously informed of it,”
the probation condition “significantly diminished Knights’ reasonable expectation of
privacy.” Id. at 119-20. On the governmental interest side, citing statistics, the Court
found that because “[t]he recidivism rate of probationers is significantly higher than the
general crime rate” and “probationers have even more of an incentive to conceal their
criminal activities and quickly dispose of incriminating evidence than the ordinary
criminal,” the state’s “interest in apprehending violators of the criminal law, thereby
protecting potential victims of criminal enterprise, may therefore justifiably focus on
probationers in a way that it does not on the ordinary citizen.” Id. at 120-21.
The Court held “that the balance of these considerations requires no more than
reasonable suspicion to conduct a search of this probationer’s house.” Id. at 121. The
Court explained that “[w]hen an officer has reasonable suspicion that a probationer
subject to a search condition is engaged in criminal activity, there is enough likelihood
that criminal conduct is occurring that an intrusion on the probationer’s significantly
diminished privacy interests is reasonable.” Id. The Court declined to “decide whether
the probation condition so diminished, or completely eliminated, Knights’ reasonable
expectation of privacy . . . that a search by a law enforcement officer without any
individualized suspicion would have satisfied . . . the Fourth Amendment.” Id. at 120
n.6.
The Court answered that question in Samson v. California, holding that “the
Fourth Amendment does not prohibit a police officer from conducting a suspicionless
D-8
search of a parolee.” 547 U.S. 843, 857 (2006). In Samson, the search was authorized by
a statute providing, in relevant part, “that every prisoner eligible for release on state
parole ‘shall agree in writing to be subject to search or seizure by a parole officer or other
peace officer at any time of the day or night, with or without a search warrant and with or
without cause.’ ” Id. at 846 (quoting Cal. Penal Code § 3067(a) (West 2000)).
On September 6, 2002, Samson, a parolee, was walking down a street with a
friend and her three-year-old child. Samson was stopped by a police officer who knew
Samson was on parole.
Id. at 846. The officer searched Samson based solely on
Samson’s parolee status. Id. at 846-47. The officer found a cigarette box in Samson’s
pocket.
Id. at 847.
“Inside the box he found a plastic baggie containing
methamphetamine.” Id.
In determining the validity of the search, the Court used the new Knights totalityof-the-circumstances balancing test, starting with Samson’s “status as a parolee, ‘an
established variation on imprisonment,’ ” and the probation search condition under
California law, which had been “ ‘clearly expressed’ ” to Samson. Id. at 852 (quoting
Knights, 534 U.S. at 119; Morrissey v. Brewer, 408 U.S. 471, 477 (1972)). The Court
concluded that Samson “did not have an expectation of privacy that society would
recognize as legitimate.” Id. “The State’s interests,” the Court found, were “substantial.”
Id. at 853. The “State has an ‘overwhelming interest’ in supervising parolees because
‘parolees . . . are more likely to commit future criminal offenses.’ ” Id. (quoting Pa. Bd.
of Prob. & Parole v. Scott, 524 U.S. 357, 365 (1998)). The Court held that “California’s
ability to conduct suspicionless searches of parolees serves its interest in reducing
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recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into
productive society.” Id. at 854.
Justice Stevens, joined by Justices Souter and Breyer, dissented, noting that case
precedent “consistently assumed that the Fourth Amendment provides some degree of
protection for probationers and parolees,” and asserting that “neither Knights nor Griffin
supports a regime of suspicionless searches, conducted pursuant to a blanket grant of
discretion untethered by any procedural safeguards, by law enforcement personnel who
have no special interest in the welfare of the parolee or probationer.” Id. at 857 (Stevens,
J., dissenting). The dissent pointed out that “the majority [did] not seek to justify the
search of petitioner on ‘special needs’ grounds. Although the Court has in the past relied
on special needs to uphold warrantless searches of probationers, it has never gone so far
as to hold that a probationer or parolee may be subjected to full search at the whim of any
law enforcement officer he happens to encounter, whether or not the officer has reason to
suspect him of wrongdoing.” Id. at 858-59 (citation omitted).
The Knights-Samson balancing approach has prompted much concern:
Because Knights purports to be utilizing “our general Fourth
Amendment approach” and not a “special need” analysis, it can only be
assumed that what the Court has to say in Knights has more general
application as to the Court’s interpretation of the Fourth Amendment in
other cases in which the basic question is, as in Knights, whether the two
fundamental protections of the Amendment—the warrant and probable
cause requirements—are applicable. The mere suggestion that these
protections might be balanced away in a great variety of circumstances is
troubling enough in and of itself, but once it is seen what the Court deemed
appropriate in Knights to place in the balance, there is even greater cause
for concern.
D-10
5 Wayne R. LaFave, Search & Seizure, § 10.10(c) (4th ed. 2004). Professor LaFave
finds the “move from a ‘special needs’ analysis” in Griffin “to a less-restrained ‘totality
of the circumstances’ balancing” in Knights and Samson “especially troublesome.” Id.
§ 10.10 (Supp. 2011-2012).3
The Iowa Supreme Court rejected Samson as a sharp
departure from prior Court decisions and decided the validity of a warrantless search of a
parolee’s motel room under its own constitution. State v. Ochoa, 792 N.W.2d 260, 28791 (Iowa 2010).
Suspicionless Search Programs. In finding suspicionless-search programs created
by state and federal DNA indexing laws constitutional under the Fourth Amendment, the
3
See also John D. Castiglione, Hudson and Samson: The Roberts Court Confronts
Privacy, Dignity, and the Fourth Amendment, 68 La. L. Rev. 63, 105 (2007) (“[T]he
[Samson] Court’s rather cavalier assumption that the government’s interest in supervising
parolees overrides the interest of the parolee to be searched only when there is reason to
believe some sort of criminal conduct is afoot is disturbing. This is especially true given
the fact that the majority’s opinion fails to argue compellingly that such suspicionless
searches actually serve the penological, rehabilitative, and reintegrationist goals of
parole.”); David A. Moran, The End of the Exclusionary Rule, Among Other Things: The
Roberts Court Takes on the Fourth Amendment, 2006 Cato Sup. Ct. Rev. 283, 295
(arguing that “[t]he effect of Samson is indeed sweeping,” leading to “ ‘an unprecedented
curtailment of liberty’ for nearly a million of our fellow citizens,” (quoting Samson, 547
U.S. at 857 (Stevens, J., dissenting)); Christian Antkowiak, Recent Decision, Parolee’s
Reduced Expectation of Privacy May Justify Suspicionless Search: Samson v. California,
45 Duq. L. Rev. 311, 323 (2007) (“[T]he broader debate taking place in Samson . . . is not
a question of whether suspicionless searches of a parolee are reasonable or justifiable;
rather, the issue is whether and to what extent the government may serve a public interest
at the expense of constitutional rights.”); Robert Cacace, Recent Development, Samson v.
California: Tearing Down a Pillar of Fourth Amendment Protections, 42 Harv. C.R.C.L. L. Rev. 223, 237 (2007) (“As the DNA cases make clear, courts are eager to extend
Samson’s logic along the continuum toward law-abiding citizens.”); Antoine McNamara,
Note, The “Special Needs” of Prison, Probation, and Parole, 82 N.Y.U. L. Rev. 209,
239 (2007) (arguing that the Knights-Samson balancing framework “takes into account
impermissible factors and explicitly discounts the privacy interests at stake”).
D-11
majority of federal courts have relied on the Knights-Samson “totality of the
circumstances” balancing test. United States v. Kraklio, 451 F.3d 922, 924 (8th Cir.
2006) (citing cases). A minority of federal courts, however, have applied the “special
needs” test, examining whether special needs exist that sufficiently justify a search absent
a warrant and probable cause. Id. In Bartylla, we adopted the Knights-Samson totalityof-the-circumstances approach in ruling on the constitutionality of Minn. Stat. § 609.117
and declined to interpret Article 1, Section 10 of the Minnesota Constitution more
broadly than the Fourth Amendment. State v. Bartylla, 755 N.W.2d 8, 17-19 (Minn.
2008).
Bartylla involved the application of the statute to the DNA analysis of a
biological specimen apparently collected after Bartylla’s felony conviction of burglary.
Id. at 12 n.2.
We upheld the statute based on two important factors—the felony
conviction and Bartylla’s status as an incarcerated felon: “An incarcerated prisoner such
as Bartylla has an even lower expectation of privacy than does a probationer, parolee, or
conditional releasee.” Id. at 17. We also noted that “[t]he question of whether we would
apply Minn. Stat. § 609.117 (2006) to nonfelonies is not before us.” Id. at 12 n.2.4
4
Prior to Bartylla, we applied the Knights balancing test to a probation officer’s
warrantless search of a felon’s home based on reasonable suspicion of criminal activity
and a search condition in the probation agreement. State v. Anderson, 733 N.W.2d 128,
138-39 (Minn. 2007). There, we discussed the special needs of the probationer-probation
officer relationship recognized in Griffin, 483 U.S. at 868, and State v. Earnest, 293
N.W.2d 365, 368 (Minn. 1980). Anderson, 733 N.W.2d at 136-37.
D-12
III.
“The overriding function of the Fourth Amendment is to protect personal privacy
and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384
U.S. 757, 767 (1966).5 The Supreme Court has recognized that “ ‘[t]he security of one’s
privacy against arbitrary intrusion by the police’ ” is “ ‘at the core of the Fourth
Amendment’ ” and “ ‘basic to a free society.’ ” Id. (quoting Wolf v. Colorado, 338 U.S.
25, 27 (1949)). The Court “reaffirmed that broad view of the Amendment’s purpose in
applying the federal exclusionary rule to the States in Mapp.” Id.
In assessing the privacy interest in this case, we should first examine the extent to
which compelled collection of a person’s DNA would intrude upon the privacy of an
ordinary citizen not charged with any crime. That requires consideration of both the
method of the intrusion and the person’s expectation of privacy in his or her DNA. See
Bartylla, 755 N.W.2d at 17-18. We should then determine the extent to which the
privacy interest is reduced when that person has been charged with a felony and
convicted of a misdemeanor. Finally, we should analyze and balance the privacy interest
5
Despite what appears to be a welter of different conceptions of privacy,
[Professor Solove] argue[s] that they can be dealt with under six general
headings . . . (1) the right to be let alone . . .; (2) limited access to the self—
the ability to shield oneself from unwanted access by others; (3) secrecy—
the concealment of certain matters from others; (4) control over personal
information . . .; (5) personhood—the protection of one’s personality,
individuality, and dignity; and (6) intimacy—control over, or limited access
to, one’s intimate relationships or aspects of life.
Daniel J. Solove, Conceptualizing Privacy, 90 Cal. L. Rev. 1087, 1092 (2002).
D-13
at stake against the extent to which DNA collection and analysis promote legitimate
government interests.
A.
I begin with analyzing the extent to which suspicionless collection of a person’s
DNA would intrude upon the privacy of an ordinary Minnesota citizen. “[T]he Fourth
Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351
(1967). “Even a limited search of the outer clothing for weapons constitutes a severe,
though brief, intrusion upon cherished personal security, and it must surely be an
annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, 392 U.S. 1,
24-25 (1968).
In Bartylla, we talked about only the physical intrusion in obtaining DNA and not
about the analysis of DNA itself. 755 N.W.2d at 18. An analysis of the DNA itself
implicates strong privacy interests apart from those intruded upon by the collection of the
sample. See Skinner, 489 U.S. at 616 (“The ensuing chemical analysis of the [blood]
sample to obtain physiological data is a further invasion of the tested employee’s privacy
interests.”).
The inquiry into the constitutionality of collecting DNA samples from convicted
offenders should not stop at the moment of collection. Rather, we need to consider “ ‘the
nature of the privacy interest upon which the search here at issue intrudes’ and the degree
to which the intrusion affects this interest.” In re the Welfare of M.L.M., ___ N.W.2d
___, No. A09-0875, slip op. at D-9 (Minn. January 25, 2012) (Meyer, J., dissenting)
(quoting Vernonia Sch. Dist. 47J v. Action, 515 U.S. 646, 654 (1995)). “[I]n assessing
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privacy interests implicated in the collection and retention of a DNA sample from a
person convicted of a misdemeanor, our concern should focus on the genetic information
contained in the DNA sample and not on the identity function of the DNA profile.” Id. at
D-20. It is the nature of this information that causes the greatest concern:
An individual’s DNA contains a wealth of information. Likewise, the
noncoding regions used in DNA profiling “can indicate or predict disease
states, and all loci, coding and noncoding alike, can be used for parentage
testing.” Concededly, the DNA profiles maintained in the CODIS database
contain purely biometric identifiers that are “represented in the data base
. . . as a series of digits comparable to social security numbers or passport
numbers.” Privacy concerns, however, are implicated by the maintenance
of DNA samples in a databank, much like a blood bank.
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, 169 (2006) (quoting David H. Kaye, Commentary, Two Fallacies About DNA
Data Banks for Law Enforcement, 67 Brook. L. Rev. 179, 187, 192 (2001)).
To understand the privacy implications of the collection and indexing of a
person’s DNA profile into a centralized database, we need a basic understanding of both
DNA itself and the process by which a biological specimen is taken and the DNA profile
generated. The human body contains several trillion cells. Nat’l Inst. of Justice, The
Future of Forensic DNA Testing 8 (2000) (hereinafter NIJ). Each cell contains 23 pairs
of microscopic bodies called chromosomes. Id. at 8-10. The core of a chromosome is a
long thread of deoxyribonucleic acid, more commonly known by the abbreviation DNA.
Id. at 10. DNA is made up of four nucleotides, called bases, abbreviated A, T, C, and G,
that are repeated over and over in pairs: A always pairs with T, and C always pairs with
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G. Id. “The arrangement of base pairs in chromosomal DNA comprises the genetic code
that differentiates humans from non-humans and makes every person unique.” United
States v. Shea, 957 F. Supp. 331, 333 (D.N.H. 1997).
A gene is an area of DNA 1,000 to 100,000 or more base pairs in length that
provides instructions on how to produce something—usually a protein. NIJ, supra, at 11.
Genes make up only about 3% of human DNA. Id. at 12. The rest are known as “noncoding” DNA, or “junk DNA,” because they have no known biological function. Id.
The set of all base pairs in all the pairs of chromosomes in a body cell is called a
genome. Id. at 10. The human genome is six billion base pairs long. Id. No two people,
other than identical twins, have the same DNA, but the vast majority of the human
genome is the same from person to person. Id. DNA from two unrelated people will
differ only in 1 out of 1,000 base pairs on average. Id.
DNA is often referred to as the “blueprint” for life. See Shea, 957 F. Supp. at 333.
“DNA stores and reveals massive amounts of personal, private data about that
individual,” including information about that “person’s health, propensity for particular
disease, race and gender characteristics, and perhaps even propensity for certain
conduct.” United States v. Kincade, 379 F.3d 813, 842 n.3 (9th Cir. 2004) (Gould, J.,
concurring).
Genetic information is not only “information about us,” but also
“information about our parents, our siblings, and our children.”
George J. Annas,
Genetic Privacy: There Ought to be a Law, 4 Tex. Rev. L. & Pol. 9, 10 (1999). It has
been described as a “reverse diary” that “informs our younger selves about our aging
selves.” Id. at 11. DNA “can provide insights into personal family relationships, disease
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predisposition, physical attributes, and ancestry.”
Tania Simoncelli, Dangerous
Excursions: The Case Against Expanding Forensic DNA Databases to Innocent Persons,
34 J.L. Med. & Ethics 390, 392 (2006). It has been suggested that future research might
reveal a genetic “predisposition to such behavior as rage and violence.” See Robert H.
Bork, The Challenges of Biology for Law, 4 Tex. Rev. L. & Pol. 1, 2 (1999).
The significance of DNA—indeed, the only reason for collecting biological
specimens for DNA—is the information it provides. Biological specimens obtained for
DNA have the potential to reveal extremely personal information. State v. Raines, 857
A.2d 19, 63 (Md. 2004) (Bell, C.J., dissenting) (“Unlike fingerprints, which contain all of
the useable identifying information at the time the prints are taken, the DNA search does
not end with the swab. To the contrary, the swab is then subjected to scientific tests,
which may extract very sensitive, personal, and potentially humiliating information.”).6
Given the potential of DNA technology to expose extremely private information, I find
these full-scale, personal DNA searches highly intrusive.
Minnesota’s DNA collection statute recognizes that our citizens have a protected
privacy interest in DNA information. Data contained in the DNA database is classified
as private data under the Minnesota Government Data Practices Act.
6
Minn. Stat.
The collection and retention of DNA in a centralized databank also “carries with it
all of the dangers inherent in allowing the government to collect and store information
about its citizens in a centralized place.” Kincade, 379 F.3d at 843 (Reinhardt, J.,
dissenting) (citing use of centralized information in Hoover-era FBI to terrorize civil
rights leaders, government surveillance and McCarthy-era interrogation of alleged
communists and alleged communist-sympathizers, the Palmer Raids, and the roundup of
Japanese Americans during World War Two).
D-17
§ 299C.155, subd. 3. To be sure, the DNA collection process contains safeguards to
protect privacy. The information stored in the DNA database is not the full DNA
sequence, but a DNA profile—a set of numbers based on comparisons of the repetitions
in thirteen “non-coding” locations on the human genome. But the fact that these regions
are currently believed to contain no genetic information does not guarantee that they will
never reveal traits. “Recent studies have begun to question the notion that junk DNA
does not contain useful genetic programming material.” Kincade, 379 F.3d at 818 n.6
(plurality opinion). Indeed, it has already been suggested that “junk DNA” may contain
information about “ ‘genetic defects, predispositions to diseases, and perhaps even sexual
orientation.’ ” Id. at 850 (Reinhardt, J., dissenting) (quoting Harold J. Krent, Of Diaries
and Data Banks: Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49, 9596 (1995)). These concerns are sometimes dismissed as needless worry about speculative
future developments. But in genetics, a field in which new discoveries are continually
and rapidly made, a complete evaluation of the privacy risks must take into account not
only what we currently know, but what might be known in the future.
Furthermore, the statute’s privacy protections are focused on DNA profiles. The
biological specimens are far less controlled. The statute requires the BCA to “maintain,
preserve, and analyze human biological specimens for DNA.” Minn. Stat. § 299C.155,
subd. 3 (emphasis added). In other words, the statute requires the BCA to maintain not
only the DNA profiles, but the biological specimens used to generate those profiles. A
biological specimen contains far more information than a DNA profile. “[O]ne drop of
blood . . . . is a complete record of your DNA.” Annas, supra, at 10.
D-18
This highlights an important difference between collection of a biological
specimen and indexing of a DNA profile under the DNA collection statute and the
suspicionless collection of urine samples required as a condition of probation. Urine
collected as a condition of probation is used only for the purpose of testing for specified
substances. The sample is discarded or destroyed. A DNA profile, however, is not
merely the result of a test, but is indexed into a database. The purpose of that database
creates a strong incentive to retain the original biological specimens, which are available
to perform more intrusive tests in the future.
In conclusion, a person’s DNA deserves the same constitutional protection as
other very private and sensitive information; the ordinary citizen in Minnesota has a high
expectation of privacy in his or her DNA.
B.
Turning to the question of whether a convicted misdemeanant has a reduced
privacy interest that would subject him or her to a full-scale search of private DNA
information, I would begin with the consensus that privacy interests in DNA information
are clear. We would not and should not countenance compelled collection of biological
specimens from the ordinary citizen.
The U.S. Supreme Court has said that probation is “one point (or, more accurately,
one set of points) on a continuum of possible punishments ranging from solitary
confinement in a maximum-security facility to a few hours of mandatory community
service.” Griffin, 483 U.S. at 874. “[D]ifferent options lie between those extremes,
including confinement in a medium- or minimum-security facility, work-release
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programs, ‘halfway houses,’ and probation—which can itself be more or less confining
depending upon the number and severity of restrictions imposed.” Id.
Individuals incarcerated in prison are denied “[a] right of privacy in traditional
Fourth Amendment terms.” Hudson v. Palmer, 468 U.S. 517, 527, 530 (1984) (holding
prisoners have no expectation of privacy in their prison cells).
Parolees have a
“substantially diminished expectation of privacy.” Samson, 547 U.S. at 855. The Court
described parole as an “established variation on imprisonment.” Id. at 850 (quoting
Morrissey v. Brewer, 408 U.S. 471, 477 (1972)) (internal quotation marks omitted).
Parole and probation, however, are “two quite different subsets.”
United States v.
Crawford, 372 F.3d 1048, 1076 (9th Cir. 2004) (Kleinfeld, J. concurring).
Parolees are persons who have been sentenced to prison for felonies
and released before the end of their prison terms. . . . The only way to get
parole in the typical state system is to commit a felony, not merely a
misdemeanor, and get sentenced to prison, not merely jail, for a period of
time long enough to qualify for release, eventually, on parole. Thus, as
distinguished from those not convicted of anything, those convicted of
mere misdemeanors and either jailed or not jailed, and those convicted of
felonies but not imprisoned for lengthy periods, parolees are persons
deemed to have acted more harmfully than anyone except those felons not
released on parole.
Probationers are close to the other end of the harmfulness scale. The
most typical use of probation is as an alternative to jail for minor offenders,
most commonly misdemeanants. . . . Unlike parolees, who were sent to
prison for substantial terms, probationers attain that status from a judicial
determination that their conduct and records do not suggest so much
harmfulness or danger that substantial imprisonment is justified.
. . . Constitutional limits on supervision of probationers may be more
extensive than those limiting supervision of parolees.
Id. at 1077 (footnotes omitted).
D-20
“A probationer’s home, like anyone else’s, is protected by the Fourth
Amendment’s requirement that searches be ‘reasonable.’ ” Griffin, 483 U.S. at 873. In
Griffin, for the warrantless search of the home of a convicted felon on probation for three
misdemeanors, by regulation, “reasonable grounds” of criminal activity were required.
483 U.S. at 870-71.
In State v. Anderson, for the warrantless search of a felony
probationer’s home, reasonable suspicion of criminal activity and a probation condition
were required. 733 N.W.2d 128, 140 (Minn. 2007). In Knights, for the warrantless
search of the home of a misdemeanant probationer subject to a search condition,
reasonable suspicion of criminal activity was required.
534 U.S. at 114, 121.
A
warrantless search of a misdemeanant’s DNA deserves at least as much Fourth
Amendment protection as a felony probationer’s home or a misdemeanant probationer’s
home.
The court concludes that the conditions of Johnson’s probation—in particular
random urinalysis—significantly reduces his expectation of privacy. The privacy interest
upon which random urinalysis intrudes concerns dignitary harms only for the term of
Johnson’s probation. M.L.M., slip op. at D-20 (Meyer, J., dissenting). Before 1993,
Minnesota’s DNA database law applied to convicted predatory offenders;7 the law then
expanded to include a person charged with a predatory offense and convicted of any
7
See Minn. Stat. § 609.3461, subd. 1 (1992).
D-21
offense arising out of the same set of circumstances;8 and the law expanded again in 1999
to include a person charged with a qualifying felony and convicted of any offense arising
out of the same set of circumstances.9 In 2005, the class of qualifying felonies was
expanded to any felony.10 While the inclusion of violent offenders, or even all felony
offenders, in the DNA database may be justifiable, the inclusion of misdemeanants is less
acceptable:
The two compelling justifications for establishing a forensic DNA database
of sex offenders, violent felons, or all felons is that these individuals are
likely to engage in repeated criminal activity, and their conviction of a
serious crime forfeits certain rights of bodily integrity and privacy relative
to the law enforcement system. With a more comprehensive database,
however, especially one in which the entire population is included, neither
of these justifications apply.
Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law
Enforcement: What Role for Privacy?, 34 J.L. Med. & Ethics 153, 155 (2006) (footnote
omitted).
Of additional concern, the DNA collection statute here, compelling biological
specimens from persons merely charged for certain crimes, impacts those not guilty of
the charged crime, eroding a Minnesota citizen’s right to have the State prove guilt
8
Act of May 20, 1993, ch. 326, art. 10, § 15, 1993 Minn. Laws 1974, 2096-97
(codified at Minn. Stat. § 609.3461, subd. 1(1) (1994)).
9
Act of May 25, 1999, ch. 216, art. 3, §§ 7, 9, 1999 Minn. Laws 1271, 1314-16
(codified at Minn. Stat. § 609.117, subd. 1(1) (2000)).
10
Act of June 2, 2005, ch. 136, art. 12, § 9, 2005 Minn. Laws 901, 1064-65 (codified
at Minn. Stat. § 609.117, subd. 1(1) (2010)).
D-22
beyond a reasonable doubt.11
Indeed, jurors are instructed on the presumption of
innocence as a caution “that they are not to infer that the defendant committed the
criminal acts charged against him merely because he has been brought to trial.” State v.
Rivers, 206 Minn. 85, 93, 287 N.W. 790, 794 (1939); cf. Taylor v. Kentucky, 436 U.S.
478, 485 (1978) (“This Court has declared that one accused of a crime is entitled to have
his guilt or innocence determined solely on the basis of the evidence introduced at trial,
and not on grounds of official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at trial.”). I would not “elevate a finding of probable
cause to the level of a proper determination of guilt beyond a reasonable doubt.” United
States v. Mitchell, 681 F. Supp. 2d 597, 606 (W.D. Pa. 2009), rev’d, 652 F.3d 387 (3d
Cir. 2011).
C.
Finally, I analyze and balance the privacy interest at stake against the extent to
which it promotes legitimate government interests.12
The State argues that the
governmental interests in collecting DNA samples from a person convicted of only a
misdemeanor are the same as for collecting DNA samples from felony offenders:
“exonerating the innocent, deterring recidivism, identifying offenders of past and future
crimes, and bringing closure for victims of unsolved crimes.” Bartylla, 755 N.W.2d at
11
The reasonable-doubt standard has constitutional stature. See In re Winship, 397
U.S. 358, 364 (1970).
12
I want to emphasize again my belief that we have taken a wrong turn in our
jurisprudence by balancing away two fundamental protections of the Fourth
Amendment—the warrant and probable cause.
D-23
18. Yet the State has not substantiated those claimed interests, much less shown that the
collection and indexing of DNA from a person convicted only of a misdemeanor serves
those interests to the same extent as the collection and indexing of DNA from a person
convicted of a felony. Cf. Skinner, 489 U.S. at 632 (“Because the record indicates that
blood and urine tests, taken together, are highly effective means of ascertaining on-thejob impairment and of deterring the use of drugs by railroad employees, we believe the
Court of Appeals erred in concluding that the postaccident testing regulations are not
reasonably related to the Government objectives that support them.”).
In fact, data on the effectiveness of DNA indexing appears to be weak. See
Frederick R. Bieber, Turning Base Hits into Earned Runs: Improving the Effectiveness of
Forensic DNA Data Bank Programs, 34 J.L. Med. & Ethics 222, 222 (2006) (“Data
compilations on meaningful metrics of success are critically lacking.”); Rothstein &
Talbott, supra, at 154 (“[T]here is virtually no scientific, comprehensive, independent,
peer-reviewed analysis quantifying the overall effectiveness of DNA databases in solving
or preventing crimes.”).
Our decision in Bartylla is not controlling on the question of the government’s
interest in this case. Bartylla involved a felony conviction. 755 N.W.2d at 17. We did
not need to engage in a comprehensive examination of the privacy interests. The fact that
the only privacy interest we discussed was the interest against physical intrusion shows
that we were not engaging in a thorough analysis of the issue. See id. at 17-18. Bartylla
merely shows that we have found that a felony offender’s privacy interest against
physical intrusion for the purpose of collecting a DNA sample for identification is less
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than the governmental interest in collecting a felony offender’s DNA profile for indexing
in a government database. See id. at 12 n.2, 18. It says nothing about whether a
misdemeanant’s privacy interest in his DNA is less than the government’s incremental
interest in adding misdemeanant DNA to an existing database.
Furthermore, it is a dangerous oversimplification to say that the governmental
interest in taking a DNA sample is the same whether the sample comes from a person
convicted of a felony or a person merely convicted of a misdemeanor. The question is
not whether having DNA in the database helps the government compare DNA left at
crime scenes with the DNA profiles in the database, it is whether that DNA is likely to
turn up a match. A DNA profile added to the database, but which never generates a
match, actually reduces the effectiveness of the database because it increases the cost of
maintaining and searching the database. We permit felony-level searches in part because
we believe that felony offenders are likely to reoffend and that inclusion of their DNA
profiles in the database will therefore populate the database with profiles from the people
most likely to generate positive search results.
The majority’s reasoning—that the
government has the same interest in indexing misdemeanant DNA profiles as felony
offender DNA profiles—is disturbing because it is only a short step from there to the
conclusion that the government has a compelling interest in collecting everyone’s DNA.
In concluding that felons on probation have a diminished expectation of privacy,
courts have found that the government’s “interest in apprehending violators of the
criminal law, thereby protecting potential victims of criminal enterprise, may . . .
justifiably focus on probationers in a way that it does not on the ordinary citizen.” United
D-25
States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005) (quoting Knights, 534 U.S. at 121)
(internal quotation marks omitted); see Bartylla, 755 N.W.2d at 18.
But the
“government’s interest in identifying misdemeanants is not as compelling as its interest in
identifying convicted felons.”
State v. McKinney, 730 N.W.2d 74, 86 (Neb. 2007)
(holding that government interest in taking DNA from person convicted of misdemeanor
forgery “without individualized probable cause” did not outweigh misdemeanant’s
privacy interest). A person convicted only of a misdemeanor has essentially the same
expectation of privacy in the inherently personal information contained in his or her DNA
as the ordinary citizen. The need to protect this information is made more compelling
“when considering that Fourth Amendment protections once lost, are likely lost forever.”
United States v. Mitchell, 681 F. Supp. 2d 597, 607 (W.D. Pa. 2009) (quoting United
States v. Stewart, 468 F. Supp. 2d 261, 279 (D. Mass. 2007)), rev’d, 652 F.3d 387 (3d
Cir. 2011); see also Kincade, 379 F.3d at 837 (plurality opinion) (“[O]nce a person is
convicted of one of the felonies included as predicate offenses under [the DNA Act], his
identity has become a matter of state interest and he has lost any legitimate expectation of
privacy in the identifying information derived from blood sampling.” (quoting Rise v.
Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995) (internal quotation marks omitted)). I would
conclude that the balance between the high expectation of privacy the ordinary citizen
has in his or her DNA, and the complete lack of evidence that the State’s interests are
served by searching a person convicted only of a misdemeanor, weighs decisively in
favor of the conclusion that the search in this case violated the protections of the Fourth
D-26
Amendment. I would therefore hold that the DNA collection statute, as applied to
Johnson, is unconstitutional beyond a reasonable doubt.13
PAGE, J. (dissenting).
I join in the dissent of Justice Meyer.
ANDERSON, Paul H. (dissenting).
I join in the dissent of Justice Meyer.
13
Because I would hold that Minn. Stat. § 609.117, subd. 1(1), is unconstitutional
under the Fourth Amendment as applied to Johnson, I would not reach Johnson’s equalprotection argument.
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