State v. Raines

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State of Maryland v. Charles Raines No. 129, September Term, 2003 Headnote: The Maryland DNA Collection Act, Md. Code (2003), §2-501 et seq. of the Public Safety Article, (th e Act) does not violate the Fourth Amendment of the United States Co nstitution because th e method of collection is minimally intrusive and is reasonable. Additionally, the Act is not in violation of the Ex Post Facto Clauses o f either the United States Constitution or Maryland Declaration of Rights, because it is a civil statute that does not add subsequent punishment for prior convictions. Circuit Co urt for Mo ntgomery C ounty Criminal Case # 98303 IN THE COURT OF APPEALS OF MARYLAND No. 129 September Term, 2003 State of Maryland v. Charles Raines Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Raker and Wilner, JJ., concur Bell, C.J., Ha rrell and Gr eene, JJ., dissen t Filed: August 26, 2004 On August 21, 2003, Charles Raines, appellee, was indic ted by a Mo ntgomery C ounty Grand Jury on the charges of first degree rape, second degree rape and ro bbery. On January 29, 2004, the Circuit Co urt for M ontgom ery County, the m otions cou rt,1 granted appellee s motion to suppress physical evidence because it found that the Maryland DNA2 Collection Act, Md. Code (2003), § 2-501 et. seq., of the Public Safety Article,3 was in violation of the Fourth Amendment to the United States Constitution. On February 20 , 2004, the S tate of M aryland, appella nt, filed an appeal to the Court of Special Ap peals and a petition for w rit of certiorari to th is Court. 4 On March 2, 2004, 1 We sh all also re fer to th is court a s the su ppress ion cou rt. 2 For a comprehensive review of DNA and DN A testing, see our case of Armstead v. State, 342 Md. 38, 673 A.2d 221 (1996), a case involving the admissibility of DNA evidence. Because Judge R aker s ana lysis in that case was so complete and comprehensive, we need not repeat it h ere. See also, another case authored by Judge Rake r, Gross v. S tate, 371 Md. 334, 33 9-40 n .1, 809 A .2d 627 , 630 n.1 (2002 ). 3 The Maryland DNA Collection Act first appeared in the Ma ryland Code in Article 88B, § 12A. See 1994 Md. Laws, Chap. 458. 4 The State filed its appe al pursuan t to Md. C ode (197 3, 1998 R epl. Vol., 2003 Supp .), § 12-302 (c) of the Courts and Judicial Proceedings Article, which states: (c) Criminal case. In a criminal case, the State may appeal as provided in this subsection. (1) The State ma y appeal from a final judg ment gran ting a motio n to dismiss or quashing or dismissing any indictmen t, information , presentme nt, or inquisition. (2) The State may appeal from a final judgment if the State alleges that the trial judge: (i) Failed to impose the sentence specifically mandated by the Code; or (ii) Imposed or modifie d a sentence in violation of the Maryland Rules. (3)(i) In a case involving a crime of violence as defined in § 14-101 of (contin ued...) appellee filed a conditional cross-petition. This Court granted both petitions on March 11, 2004. State v. Raines, 380 Md. 230, 844 A.2d 427 (2004). We issued our order and 4 (...continued) the Criminal Law Article, and in cases under §§ 5-602 through 5-609 and §§ 5-612 through 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. (ii) The appeal shall be made before jeopardy attaches to the defenda nt. However, in all cases the appeal shall be taken no more than 15 days after the decision has been rendered and shall be diligently prosecuted. (iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property requ ired to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the recor d on app eal is filed in the appellate co urt. Otherw ise, the decisio n of the trial co urt shall be fin al. (iv) If the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. In that case, the State m ay not prosecu te the defendant on those specific charges or on any oth er related cha rges arising o ut of the sam e incident. (v) Pending the prosecution and determination of an appeal taken under paragraph (1) or (3) of th is subsection, the defendant shall be released on personal recognizance bail. If the defendant fails to appear as required by the terms of the recogniza nce bail, the trial court shall subject the defendant to the penalties provided in § 5-211 of the Criminal Procedure Article. (vi) If the State loses the ap peal, the jurisdiction shall pay all the costs related to the a ppeal, including reasonable attorney fees incurred by the defen dant as a result o f the ap peal. Pursuant to § 12-302 (c)(3)(iii) of this statute, the State s appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Id. In the case sub judice, as the record was filed on March 18, 2004, the decision was required to be decided by July 16, 2004. It was decided on July 13, 2004. -2- mandate, with opinion to f ollow, reve rsing the trial co urt s granting of the mo tion to suppre ss. We now e xplain o ur decis ion. The sole question presented by the State for our review asks: Did the suppression court err in ruling that the Maryland DNA Collection Act is unconstitutional as violative of the Fourth Amendment? In addition to a variation of the State s question, appellee s cross-petition asks: Did the suppression court err in ruling that the Maryland DNA collection statute was not a penal statute in violation of the ex post facto clauses of the federal and state constitutions, as applied to the appellee? We hold that the Maryland DNA Collection Act (hereinafter, the Act ) is constitutional and does not violate the F ourth Amendment or the Ex Post F acto Clauses of the United States and Maryland Constitutions. Accordingly, we reverse the suppression court s order granting the mo tion to suppress. We ag ree that its decision regarding the Ex Post Fac to clauses of the federa l and state co nstitutions w as correct. I. Facts At approximately 12:00 a.m. on July 14, 1996, the victim was walking home from the Wheaton Plaza area on Viers Mill Road in Montgomery County when she was grabbed from behind, choked to the point of unconsciousness and dragged into a dark area between two neighborhood houses. The assailant pulled her jacket over her head, took her pants off, placed the pants over her eyes as a blindfold and proceeded to rape her several times. The assailant additionally robbed the victim of $150. She gave a description of her attacker which described him as a black male smelling of cigarette s moke, w ho was a pproxim ately -3- five feet eight inches tall and po ssibly with facial hair. The police recovered some evidence at the sce ne of th e attack . A sexual examination of the victim was performed at Shady Grove Adventist Hospital and, using vaginal swabs, semen was recovered from the victim. A subsequent laboratory analysis of the semen produced a DNA profile of the attacker. The a uthorities, however, were unable to identify a suspect even after the discovery of this evidence and an extensive police investigation. Pursuant to the Ma ryland DN A Collec tion Act, on November 8, 1999, appellee, who was incarcerated, 5 had the inside of his cheek swabbed 6 so the State c ould obtain a DNA7 sample 8 to be s u bm i tt e d to the M a r yl a n d DNA data 5 Appellee s conviction that qualified him for DNA collection under the Act was a 1982 robbery conviction, which occurred prior to the Act being enacted in 1994. On November 8, 1999, when appellee submitted a DNA sample pursuant to the Act, he was incarcerated for another crime unrelated to the 1982 robbery conviction. 6 We shall also refer to this process of obtaining DNA as a buccal swab. 7 Section 2-501 (e) states that DNA means deoxyribonucleic acid, which is a selfreplicating material that makes up chromo somes an d is the carrier o f genetic inf ormation in all living organisms. Excluding identical twins, DNA is unique to each person. 8 Section 2-501 (g) defines a DNA sample as follows: (g) DNA sample. DNA sample means a body fluid or tissue sample that is: (1) provided by an individual who is convicted of a felony or a violation of § 6-205 or § 6-206 of the Criminal Law Article; or (2) submitted to the statewide DNA data base system for analysis as part of a crimina l investig ation. After the physical DNA sample is taken by swab, then appropriate tests are run on that sample in order to obtain the DN A reco rd, i.e., profile. Section 2-501 (f) def ines the term DNA record. It states: (contin ued...) -4- bank.9 In October of 2002, the DNA profile of the victim s 1996 attacker was submitted to the Maryland DNA data bank for comparison in order to discover the identity of her attacker. The attacker s pro file matched the D NA profile fro m appellee s Novemb er 8 th cheek swab. As the Act provides, this match resulted in probable cause to obtain another DNA sample from appellee. In February of 2003, the State secured a search warrant for the purpose of obtaining a saliva sample from appellee for a second D NA profile. Th is February 2003 DNA profile of appellee produced a second match to the DNA profile of the victim s attacker. After the second match between appellee s DNA and the attacker s DNA was made, the statistical probability of anyone other than appellee being the source of the DNA of the attacker was determined to be one in six billion. On August 21, 2003, as a result of these DN A profile matche s and the victim s testim ony, appellee was indicted by a Montgomery County Grand Jury on the charges of first 8 (...continued) (f) DNA record. (1) DNA record m eans DN A inform ation stored in CODIS [the Federal Bureau of Investigation s Combined DNA Index System, as defined in § 2-501 (b) of the Act] or the statewide DNA data base system. (2) DNA record includes the informatio n comm only referred to as a DNA profile . [Alte ration ad ded.] 9 The Act defines the statewide DNA data base system as, the DNA record system administered by the Depa rtment for id entification p urposes. § 2-501 (h). T he DN A data bank keeps t he reco rds of re sults, i.e., DNA profiles, obtained from the analysis of the DNA samples. The DN A profiles are then co mpared to the profiles o f DNA samples from evidence obtained from victims, human remains and the like, in an effort to identify the evidentiary sample. A fter a profile is obtained p ursuant to th e Act, the ac tual DN A samp le is stored in the Statewide D NA repository, which means the State repo sitory of DNA samples collected und er this subtitle. § 2-501 (i). -5- degree rape, second degree rape and robbery. Appellee filed a motion to suppress the DNA evidence obtained from him in February of 2003 because of his belief that the procedure used to obtain the November 8, 1999 DNA sample (which lead to the DNA profile match constituting the probable cause for the search warrant that produced the latter DNA sample) was unconstitutional. On January 28, 2004, the motions court, without a hearing, granted appellee s motion to dismiss, stating that the collection of appellee s DNA in 1999 and 2003 violated his Fourth Amendment right to be free from unreasonab le searches and seizures. The suppression court relied on the United States Supreme Court cases of City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d (2000), and Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), in finding that appellee s legitimate expectation of privacy was violated in 1999 because the State had no probab le cause or ind ividualized suspic ion to justify a sea rch that unq uestionably is to advan ce the g eneral n eeds of law en forcem ent. II. Discussion While several other states have decided issues similar to that in the case sub judice, this is the first time in w hich this C ourt has a ddre ssed the c onst itutio nalit y of Maryland s DNA collection statute. The central issue dealing with the co nstitutionality of the Act is whether the collection of DNA from a certain class of convicted p ersons is in ac cord with the protections of the Fourth Amendment of the United States Constitution to be free from unreasonable searches and seizures. Appellee also challenges the Act as being in violation -6- of the Ex Post F acto clauses of the federal constitution and the State declaration of rights. A. Fourth Amendment The Fourth Amendment of the United States Constitution protects individuals from unreasonable government searches and seizures, and it guarantees: The right of the people to be secure in their persons, houses, papers, and effects, against unreason able search es and seizu res, shall not be violated, and no W arrants shall i ssue , but u pon prob able caus e, supported by Oath or affirmation, and particu larly describing th e place to be searched, and the person s or thing s to be se ized. These guaranteed Fourth Amendment protections are applicable to the State of Maryland through the Fou rteenth A mend ment o f the U nited S tates Co nstitution . See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081 (1961); Owen s v. State, 322 Md. 616, 622, 58 9 A.2d 59, 61, cert. denied, 502 U.S. 973, 112 S. Ct. 452, 116 L. Ed. 2d 470 (1991). In the last fifteen years, state gove rnments b egan to en act DNA collection statutes, and currently all fifty state s and th e fede ral gov ernme nt, see 42 U.S.C. §§ 14131-34, have some type of DNA collection statute that requires some or a ll convicted felons to submit a tissue sample, either blood, saliva or othe r tissue, for D NA pro file analysis and storage in a DNA data bank. See Mich elle Hib bert, DNA Databanks: Law Enforcement s Greatest Surveillance Tool?, 34 Wake Forest L. Rev. 767, 771 n.12 (1999) (citing all state statutes); Landry v. Attorney General, 709 N.E.2d 1085, 1087 (M ass. 1999); see also Rob in Cheryl Miller, Validity, Construction, and Operation of State DNA Database Statutes, 76 A.L.R .5th -7- 239 (2000) (citing to seve ral state DNA co llection statutes). Specific to the case sub judice, the Marylan d DNA Collection A ct is located w ithin Title 2, Subtitle 5 of the Pu blic Safety Article of the Maryland Code. The initial provisions of the Act set up the regulatory scheme, identify the classes of persons subject to the Act and establish the procedures and purposes of the Act. After defining terms in § 2-501, the Act focuses on the crea tion of a statewide regulatory DNA data base system, including the establishment of the Office of Director. Md. Code (2003), § 2-502 o f the Pub lic Safety Article.10 It then calls for the Director and S ecretary of the State Police to consult with each 10 Hereinafter, unless specifically noted otherwise, all statutory references are to Title 2, subtitle 5 of the Public Safety Article of the Maryland Code. Specific ally, § 2-502, the establishment of the statewide DNA data base system, states: § 2-502. Statewide DNA data base system. (a) Established. There is a statewide DNA data base system in the Crime Lab oratory. (b) Purpose. The statewide DNA data base system is the central repository for all DNA testing information as provided in this subtitle. (c) Duties of Director. The Dire ctor shall: (1) administer and manage the statewide DNA data base system; (2) consult with the Secretary on the adoption of appropriate regulations for protocols and operations of the statewide DNA data base system; (3) ensure co mpatibility with F ederal Bu reau of Inv estigation and CODIS requireme nts, including the use of c omparab le test procedures, quality assurance, laboratory equipment, and computer software; (4) ensure the security and confidentiality of all records in the statewide DNA data base system; and (5) provide for a liaison with the Federal Bureau of Investigation and other criminal justice agencies related to the State s participation in CODIS or in any DN A data ba se designa ted by the De partment. (d) Duties of Crime Laboratory. The Crim e Labora tory shall: (contin ued...) -8- other in reference to adopting a ppropriate re gulations fo r the admin istration of the system in addition to several other required regulations. § 2-503. The procedures for the collection of DNA samp les are set out in § 2-504 of the Act as follows: § 2-504. Collection of DNA sam ples. (a) In general. (1) In accordance w ith regulations adopted un der this subtitle, and if adequate fu nds for the collection of D NA sam ples are appropriated in the State budget, an individual who is convicted of a felony or a violation o f § 6-205 or § 6-206 of the Crim inal Law Article shall: (i) have a DNA sample co llected on inta ke to a cor recti onal fac ility, if the individual is sentenced to a term of imprisonment; or (ii) provide a DNA sample as a condition of sentence or probation, if the individu al is not senten ced to a term of impriso nment. (2) If adequa te funds fo r the collection of DNA sam ples are appropriated in the State b udget, an individual who was convicted of a felony or a violation of § 6-205 or § 6-206 of the Criminal La w Article on or be fore October 1, 2003 and who remains confined in a correctional facility on or after October 1, 1999, sh all submit a D NA sam ple to the D epartmen t. (b) Place of collection. In accordance with regulations adopted under this subtitle, each DNA sample required to be collected under this section sha ll be collected: (1) at the correctional facility where the individual is confined, if the individual is confined in a correctional facility on or after October 1, 2003, or is sentenced to a term of imprisonment on or after October 1, 2003; or 10 (...continued) (1) receive D NA sam ples for an alysis, classification, storage, and disposal; (2) file the DNA record of identification characteristic profiles of DNA samples submitted to the Crime Laboratory; and (3) make information that relates to DNA samples and DNA records available to other agencies and individuals as authorized by this subtitle. (e) Contr act with DNA labora tory. The Dire ctor may con tract with a qualified DNA laboratory to complete DN A typing analyses if the laboratory meets the guidelines established by the Director. (f) Record retention. Subject to § 2-511 of this subtitle, records of testing s hall be p erman ently retain ed on f ile at the C rime L aborato ry. -9- (2) at a facility specified by the Director, if the individual is on probation o r is not senten ced to a term of impriso nment. (c) Authorized collectors. A DNA sample shall be collected by an individual who is: (1) appointed by the Director; and (2) trained in the collection procedures that the Crime Laboratory uses. (d) Second DNA sample. A second DNA sample shall be taken if needed to obtain sufficient DNA for the statewide DNA data base or if ordered by the court for good cause shown. (e) Failure to provide DNA sample. Failure of an individual who is not sentenced to a term of imprisonm ent to provide a DNA sample w ithin 90 d ays after no tice by the Directo r is a viola tion of p robatio n. The act additionally outlines its purposes in § 2-505, which states: § 2-505. Purpose of collecting and testing DNA sa mples. (a) In general. To the extent fiscal resources are available, DNA samples shall be collected and tested: (1) to analyze and type the genetic mark ers contained in or derived from the DNA samples; (2) as part of an official investigation into a crime; (3) to help identify human remains; (4) to help identify missing individuals; and (5) for research and administrative purposes, including: (i) development of a population data base after personal identifying information is removed; (ii) support of identification research and protocol development of forensic DNA analysis methods; and (iii) quality control. (b) Limitations on DNA records. (1) O nly DNA record s that directly relate to the identification of individuals shall be collected and stored. (2) DNA records may not be used for any purposes other than those specifi ed in this subtitle. The remaining provisions of the Ac t establish sev eral protection s to the individ uals whose DNA is collected and stored purs uant to the Act s previous provisions. Sections 2506 through 2-508 discuss the DNA storage, proficiency testing of the DNA test analysts, -10- the availability of the DNA profile and the creation of a population data base from the DNA profile only after all personal identifiers are removed from the profiles. Section 2-510 states that any DNA match provides only probable cause to obtain an additional DNA sample from the subject. Section 2-511 allows for the removal of an individual s DNA information and sample from the system where the individual fits the expungement criterion of the Code. Fina lly, the last section in the Act, § 2-512, provides for punishment with respect to any pers on w ho disclo ses o r obtains DN A inform ation from the d ata b ank illeg ally. Several DNA collection statutes across the country that are similar to Maryland s Act, including the federal statute, have been challenged and nearly every challenge has been unsuccessful. At the time of argument, the lone appellate court we were able to find that struck down a DNA collection statu te as violative of the Fourth Amendment was the United States Court of Appea ls for the N inth Circuit. United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003). Th e entire Nin th Circuit co urt, howev er, vacated its 3 -judge pan el Kincade opinion and designated it for an en banc rehearing in an order stating: Upon the vote of a majo rity of nonrecu sed regular active judg es of this court, it is ordered that this case be re heard by the e n banc co urt pursuan t to Circuit Rule 35-3 . The three-ju dge pane l opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the ex tent ado pted by th e en ba nc cou rt. United States v. Kincade, 354 F.3d 1000 (9th Cir. 2004) (emphasis added). As the Ninth Circuit en banc pan el has specif ically stated that the o pinion sh all not be cited as precede nt in the Ninth C ircuit itself, and th at court has yet to issue a final decision, the Kincade opinion -11- has little persuasive value in this Court. Appellee s reliance on that case is misplaced. Contrary to appellee s reliance on Kincade, every other ap pellate court we have found dealing with the issue has upheld the DNA collection statute at issue before it. Roe v. Marco tte, 193 F.3d 72, 76-82 (2d Cir. 1999) (upho lding a Connec ticut DNA co llection law); Jones v. Murray, 962 F.2d 302, 305-08 (4th Cir.) (upholding a V irginia DNA c ollection law), cert. denied, 506 U.S. 977, 113 S. C t. 472, 121 L . Ed. 2d 37 8 (1992); Groceman v. United States Dep t of Justice, 354 F.3d 411, 413-14 (5th Cir. 2004) (per curiam) (upholding the federal DNA collection law ); Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003) (per curiam)(upholding the Texas DNA collection law ); Green v. Berge, 354 F.3d 675, 677-79 (7th Cir. 2004) (upholding the Wisconsin DNA collection law ); Rise v. Oregon, 59 F.3d 1556, 1559-62 (9th Cir. 1995) (upholding the Oregon DNA collection law prior to the Supreme Court cases in Edmond and Ferguson and the Ninth Circuit s Kincade opinion, which, although it impliedly overruled Rise, subseque ntly was vac ated by the N inth Circuit, that, as sta ted p reviousl y, has yet to render a decisio n on reh earing e n banc ), cert. denied, 517 U.S. 1160, 116 S. Ct. 1554, 134 L. Ed. 2d 656 (199 6); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir. 2003) (upholding the fed eral DN A colle ction law ), cert. denied, __ U.S. __, 124 S . Ct. 94, 157 L. Ed. 2d 7 59 (2003 ); Shaffer v. Sa ffle, 148 F.3d 1180, 1181-82 (10th Cir. 1998) (upholdin g the Ok lahoma D NA co llection law); Schlich er v. Peters, 103 F.3d 940, 943 (10th Cir. 1996) (upholdin g the Kan sas DN A collectio n law); Boling v. Romer, 101 F.3d 1336, 1339-40 (10th Cir. 1996)(upholding the Colorado DNA collection law); In the -12- Matter of the Appeal in Marico pa Juven ile Action Nos. JV-512600 and JV-512797, 930 P.2d 496, 500-01 (A riz. App. 19 96); Alfaro v. Terhune, 98 Cal. A pp. 4th 492, 505-06 (Cal. App. 2002), cert. denied, 537 U.S. 1136, 123 S. Ct. 922, 154 L. Ed. 2d 828 (2003); People v. Calahan, 649 N.E .2d 588, 59 1-92 (Ill. Ap p. 1995); State v. Martinez, 78 P.3d 769, 773-76 (Kan. 2003); Landry v. Attorney General, 709 N.E.2d 1085, 1091-92 (Mass. 1999); Gaines v. State, 998 P.2d 1 66, 171 -73 (N ev.), cert. denied, 531 U.S. 856, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000 ); Cooper v. Gammon, 943 S.W.2d 699, 704-05 (M o. App. 19 97); State v. Steele , 802 N.E.2d 1 127, 113 2-37 (Oh io App. 2 003); State ex rel. Juvenile Dep t v. Orozco, 878 P.2d 432 , 435-36 (O r. App. 19 94); Dial v. Vaughn, 733 A.2d 1, 6-7 (Pa. C mmw . 1999); In re D.L.C., 124 S.W .3d 354, 36 3-68 (Te x. App. 20 03); Johnson v. Comm onwea lth, 529 S.E.2d 769, 77 9 (Va.) , cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed . 2d 439 (2000); State v. Olivas, 856 P.2d 1076, 1080-86 (Wash. 1 993); Doles v. Sta te, 994 P. 2d 315, 318-19 (Wyo. 1999); see also, some federal district courts which have upheld state DNA collection laws, Padgett v. Ferrero, 294 F. Supp. 2d 1 338, 1342-44 (N .D. Ga. 2003) (upholdin g the Georgia DNA collection law ); Kruger v. Erickson, 875 F. Supp. 583 , 588-89 (D. M inn. 1995) (upholding the Minnesota D NA collection law ). Appellee nonetheless argues that the Fourth Amendment proscribes searches similar to the one pu rsuant to the Act in this case. Ap pellee, relying on the two Supre me Court cases, City of Indianapolis v. Edmond, supra, and Ferguson v. City of Charleston, supra, contends that a search can not satisfy the rea sonablen ess requirem ent of the F ourth -13- Amendment where the DNA was seized without any individualized suspicion of criminal conduct. Appellee also argue s that the search allowed under the Act cannot fall into the special needs doctrine because he contends that the primary purpose of the Act is to assist in the prosecution of crimes. While the State concedes that the buccal swab for appellee s DNA conducted pursuant to the Act is a search for Fourth Amendment purposes, it contends that such a search is constitutional for two independent reasons. First, the State, citing United Sta tes v. Knigh ts, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001), argues that the act is consistent w ith the Fourth Amendment s totality of the circumstances test, which assesses the reasonableness of a Fo urth Amendmen t intru sion by balancing the degree of the government s intrusion upon the individual s expectation of privacy against the promotion of the government s legitimate interest. The S tate believes that the government intrusion in this case was minimal, as appellee, a incarcerated felon, had a diminished expectation of privacy, while the legitimate government interest in properly identifying individuals and protecting the public was served. Alternatively, the State contends that the Act is constitutional pursuant to the special needs exception to the Fourth Amendment, because the collection of DNA from convicted offenders and storing their DN A pro files serv es spec ial law e nforce ment in terests. In light of the overwhelming precedent upholding the constitutionality of DNA collection statutes and the reasonableness of such searches, and upon our own independent assessme nt, we h old that th e Maryland DNA Collection A ct does no t violate the Fo urth -14- Amendment and that the Act in the case sub judice is constitutional. As we hold that the Act and the buccal sw ab condu cted unde r it were reaso nable und er the Fou rth Amendment, we need not address whether the Act falls into the spec ial needs ex ception to th e Fourth Amen dment. B. Reasonableness The courts that uphold DNA collection statutes generally do so because they hold that such searches are reasonab le ones. Th e Fourth A mendm ent to the United States Constitution specifically protects on ly against unreason able searches a nd seizures (emphasis adde d). Thus, the Supreme Court has said: The tou chstone o f the Fou rth Amendment is reasonableness, and 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 . Wyom ing v. H oughto n, 526 U.S. 295, 300, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1 999). Knights, 534 U .S. at 118 -19, 12 2 S. Ct. a t 591, 15 1 L. Ed . 2d 497 . In balancing the reasonableness of a warrantless search, of a probationer s home, the Knights Court focused on the lessened expectation of the probationer and that such persons enjoy less liber ty than tha t of ord inary citize ns. Knights, 534 U.S. at 119, 122 S. Ct. at 591, 151 L. Ed. 2d 497. In asse ssing the governmental interest in the warrantless search of Knights home, the Supreme Court said: [I]t must be re membe red that the v ery assumptio n of the in stitution of probation is that the prob ationer is mo re likely than the o rdinary citizen to violate the law. Griffin, 483 U.S., at 880, 1 07 S. Ct. 3164. The recidivism -15- rate of probationers is significantly higher than the general crime rate. See U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Recidivism of Felons on Probation, 1986-89, pp. 1, 6 (Feb.1992) (reporting that 43% of 79,000 felons placed on probation in 17 States were rearrested for a felony within three years while still on probation); U.S. Dept. of Justice, Office of Justice Program s, Bureau o f Justice Statistic s, Probation and Paro le Violators in State Prison, 1991, p. 3 (Aug.1995) (stating that in 1991, 23% of state prisoners were probation violators). And proba tioners have even m ore of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordina ry criminal because probationers a re aware that they may be sub ject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply, see Minnesota v. Murphy, 465 U.S. 420, 435, n. 7, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) ( [T]here is no right to a jury trial before probation may be revoked ); 18 U.S .C. § 3583(e). The State has a dual concern with a probatione r. On the on e hand is the hope that he will successfully complete probation and be integrated back into the commun ity. On the other is the concern, q uite justified, tha t he will be more likely to engage in criminal conduct than an ordinary member of the com mun ity. The view of the Court o f Appe als in this case would require the State to shut its eyes to the latter concern and conc entrate only on the former. But we hold that the Fourth Amendment does not put the State to such a choice. Its interest in apprehending violators of the criminal law, thereby protecting potential victim s of crimina l enterprise, m ay therefore ju stifiably focus on pro batione rs in a w ay that it do es not o n the or dinary citiz en. Id. at 120-21, 122 S. Ct. at 592, 151 L. Ed. 2d 497 (alteration a dded). That Court then went on to hold that the severe intrusion into the privacy of the home of probationer was justified because of the reasonableness of the intrusion in light of Knights lessened expectation of privacy and the officer s reasonable suspicion in respect to the search. Appellee contends that the Knights case stands for the proposition that some type of individualized suspicion is always required for a search to be reasonable. The main problem with that argument is that it precludes further balancing on differe nt facts . Knights dealt with -16- an intrusion that has long been held to be the chief evil against which the wording of the Fourth Amendment is directed the sear ch of a private h ome. United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752 (1972). The proposition for which Knights stands is not a per se individualize d suspicion requireme nt. The case merely used a balancing test involving what is ge nerally conside red to be a sp ecially offensive type of government intrusion. Suc h a balan cing test n eces sarily prec lude s any per se rule because the test is dependent on the specific circumstances of each individual case. Even in light of suc h an intrusio n, the Cou rt held that the warran tless search was justified even when there was a low level of suspicion where a person s expectatio n of privac y is diminished and the g overnment interest w as strong and legitimate. Un der Knights, we see no reason why a search cannot be reasonable absent an individualized suspicion in the limited circumstances of this c ase, w here the individual s expectation o f privacy was even m ore limited than in Knights, the government intrusion, a buccal swab, was minimal at most and the governm ent objective is as strong as in Knights. Here, appellee was not on probation living in his ow n hom e he w as incar cerated . The gover nment intrusion was not an unauthorized entry into a private home, but a buccal swab of the cheek lasting a few seconds. Fina lly, the legitimate g overnm ent interest w as in establishing a more accurate m ethod to identify recidivists for several purposes, while the officers in the Knights case actually were searching for evidence of a crime. Requiring individualized suspicion to obtain DNA for future use would neg ate the very purpose of the Act itself, considering that the Act does not -17- seek to ob tain evidence, but to merely identify persons. Balancing these factors illustrates the reasonableness of the minimal intrusion of a buccal swab in light of the profoun d public interest in identifying the perpetrators of crimes.11 Even prior to the Knights case, the U nited States C ourt of A ppeals for the Fourth Circuit, in Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), upheld a Virginia DNA collection statute where the method the taking of blood was more intrusive than a buccal swab. The Fourth Circuit stated: [W]hen a suspect is arrested upon probable cause, his identification becomes a matter of leg itimate state intere st and he ca n hardly claim privac y in it. We accept this propositio n becaus e the identific ation of sus pects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a perman ent record to solve other past and fu ture crimes. T his becomes readily apparen t when w e consider th e universal approbation of booking procedures that are followed for e very s uspe ct arr ested for a fe lony, whether or not the proof of a particular sus pect s crime will involve the use of fingerprint identification. Thus a tax evader is fingerprinted just the same as is a burglar. While we do not accept even this small level of intrusion for free persons without Fourth Amendment constra int, see Dav is v. Mississipp i, 394 U.S. 721, 727, 89 S. Ct. 1394, 1397, 22 L. Ed. 2d 676 (1969), the same protections d o not hold true for those lawfully confined to the custody of the state. As with fingerprinting, therefore, we find that the Fourth Amendment does not require an additional finding of individualized suspicion before blood can be taken f rom inc arcerate d felon s for the purpo se of id entifying them. Jones, 962 F.2d at 306-07 (alteration added). In a footnote directly follow ing the abo ve text, 11 In addition, the Act does not constitute the gathering of direct evidence of a crime. The DNA evidence of the crim e already exists prior to the match of any DNA profile in the data bank. The Act does not create direct evidence; the direct evidence is the semen acquired by a vaginal swab of the victim. The Act merely serves to identify the perpetra tor similar to the way investigators have used fingerprints for many years. -18- the Fourth Circuit stated: Because we consider th e cases w hich involv e the Four th Amendment rights of prison inmates to comprise a separate category of cases to which the usual per se requ irement of probable c ause doe s not apply, there is no cause to address whether the so-called special needs exception, relied on by the district court, ap plies in th is case. We do, however, find support for our holding in the fact that the Supreme Court has not categorically required individualized suspicion in the case of every search which advances a law enforcement objective. Only recently it conclude d that a slight o r minimal intrusion caused by the short stop of an auto mobile at a checkpoint, although directed at a class of people without individualized suspicion, may be justified as reasonable under the Fourth Amendment by a weightier interest advanced by the sear ch. See Michigan Dep t Of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 2488, 110 L. Ed. 2d 412 (1990) (approving use of sob riety check point to deter dr unk dr iving). Id. at 307 n.2 (e mphasis a dded). Th at court w ent on to conclude the following where the Virginia statute called for the more intrusive taking of blood to obtain a DNA sample: The governmental justification for this form of identification, therefore, relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods. Thus, in the case o f convicted felons who are in custody of the Commonwealth, we find tha t the minor intrusion cause d by the tak ing of a blood sam ple is outwe ighed by V irginia s intere st, as stated in th e statute, in determining inmates identification character istics specific to the person for improved law enforcement. See Va.Code Ann. § 19.2-310.2. ... . . . [G]iven the DN A technology that is currently available, . . . Virginia s interest in DNA testing is significantly more compelling w ith regard to those felons convicted of violent crimes than those not. However, we note that the fact that fingerp rints are not fo und at a particular crime scene does not negate the Commo nwealth s interest in fingerprinting the criminal suspect when caught. There may be uses for DNA technology other than merely verifying a suspect s presence at the scene of a crime. As we have noted, a DNA print might be used to identify a criminal suspect who has attempted to alter or -19- conceal his or her identity. Moreover, if DNA technology becomes more common (and particularly if it is established as a reliable and judicially accepted identification tool), th en it is likely that law enforcem ent officials w ill become more aware of the technology and thus more likely to make use of the DNA clues that are left as a result of crimes other than murder or rape. The effectiveness of the Commonwealth s plan, in terms of percentage, need not be high w here the objectiv e is signi ficant a nd the p rivacy intru sion lim ited. See Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 2487, 110 L. Ed. 2d 412 (1990) (validating state use of roadblock to discover drunk drivers despite resulting arrest rate of only 1.5%); Wolfish, 441 U.S. at 559, 99 S. Ct. at 1 884 (valida ting body cavity search of pretrial detainees despite only one instance in which a n inmate w as discove red attemp ting to smuggle contraba nd). It is not for us to weigh the advantages of one method of identification over another which is selecte d by the C omm onwe alth. While greater utility for use of DNA data can be supposed when the future crime is one of violence and those crimes can statistically be related more directly to inmates now incarcerated for crimes of violence, the utility of more e xact identifica tion in all cases still justifies the minor intrusion. We therefore agree with the district court s c onclus ion that § 19.2-3 10.2 does not violate the Fourth Amendment as applied by the Fourteenth Amendment to the Com monw ealth of Virgin ia. Id. at 307-08 (emph asis add ed) (alte ration ad ded). See also United States v. Stegman, 295 F. Supp. 2d 542, 548 -50 (D. M d. 2003) (th e District Co urt, finding, relying on Jones and distinguishing Edmond and Ferguson, that the federal DNA collection act did not violate the Fourth Ame ndment). The Fourth C ircuit s reasoning in Jones is applicable in this case. M ore impor tant, the Supreme Court s upholding of the major home intrusion, in the case of probatione rs in Knights, serves to strengthen the use of the balancing test involving a much more minimal intrusion in the Fourth Circuit s Jones case. The pres ent case is even stronger as the minimal buccal swab is less of an intrusion than both the home invasion in Knights and the blood -20- sample in Jones, while the other factors involved in the balancing test are very similar, if not identical, to that in Jones. Given the compellin g govern mental intere st in identifying persons involved with crimes, accident victims, John Doe bodies, and the minimal intrusion in respect to appellee, the taking of a DNA sample by buccal swab pursuant to the Act in the case sub judice is a reasona ble search u nder the F ourth Am endmen t. Appellee argues that the Jones holding, an d the holdin gs of other similar cases decided prior to 200 1, are mean ingless in light of the Supreme Court cases in City of Indianap olis v. Edmond, supra, and Ferguson v. City of Charleston, supra. First, several courts, including th e United S tates Court o f Appe als for the Fifth Circuit, have distinguished Edmond and Ferguson in upholding DNA collection acts. In Groceman v. United States Department of Justice, 354 F.3d 411 (5th Cir. 2004) (per curiam), the Fifth Circuit, citing Jones, upheld the federal DNA collection statute, stating that collection of DNA from prisoners under the DNA Act is reasonable under the Fourth Amendment. Id. at 413. That Court relied on its prior opinion in Velasquez v. Woods, 329 F.3d 420 (5th Cir. 2003) (per curiam), in holding that the DNA collection is reasonable in light of the minimal intrusion, an inmate s diminishe d expecta tion of priva cy and the legitim ate govern ment interes t. Add ition ally, both Edmond and Ferguson are distinguis hable on th eir facts from the DNA collection context for two reasons. First, the Edmond and Ferguson cases involved searches of ordinary citizens without individualized suspicion, not incarcerated criminals. Second, the primary purpose of the government actions in those cases was not to identify -21- individ uals, bu t to gathe r eviden ce of c rimes, th us actin g like a g eneral w arrant. In Edmond, the Supreme Court struck down a City of Indianapolis vehicle checkpoint policy as being in violation of the Fo urth Amen dment. 12 The checkpo int program s primary purpose was designed to discover illegal narcotics and was instituted by the seizure and search of all citizens at the checkpoints. The Supreme Court stated that it had never approved a checkpoint program whose primary purpose was to detect evidence of o rdinary criminal wrongdoing and that its checkpoint cases only recognized limited exceptions to the general individualized suspicion rule, which approved checkpoints p rimarily designe d to serve purposes related to border control or safety concerns not evidence gathering. Edmond, 531 U .S. at 41, 1 21 S. C t. at 454, 1 48 L. E d. 2d 33 3. In holding the Indianapo lis program unconstitutional, the Court said: The prim ary purpose of the Indianapolis narcotics checkpoints is in the end to advance the gen eral interest in crime control. We decline to suspend the usual requirement of indiv idualized su spicion w here the po lice seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We can not sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given m otorist h as com mitted s ome c rime. Id. at 44, 121 S. Ct. at 455, 14 8 L. Ed. 2d 333 (citation omitted). 12 In outlining the standard for its Fourth Amendment analysis, the Supreme Court stated that a search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. While such suspicion is not an irreducible component of reasonableness, we have recognized only limited circumstances in which the usual rule does not apply. Edmond, 531 U.S . at 37, 121 S . Ct. at 451, 148 L. Ed. 2d 333 (citations omitted) (emphas is added ). Edmond, therefore, unlike the contention of appellee, clearly does not stand for the proposition that all searches must require an individualized suspicion. -22- Rec ently, the Supreme Court, in Illinois v. Lidster, ___ U.S. ___, ___, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004), recognized the constitutional validity of a checkpoint program whose primary law enforcement purpose was no t in unearthin g incrimina ting eviden ce in those who are subjected to the stop, but to ask for assistance in solving a crime from the public. In addressing the importance of the purpose of the seizure and confirming the lack of an automatic rule requiring individualized suspicion, the Court said: The checkpoint stop here differs significantly from that in Edmond. The stop s primary law enforcement purpose was not to determine whether a vehicle s occupan ts were committing a crime, but to ask vehicle occupants, as membe rs of the pu blic, for their he lp in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle s occupants, but other individuals. Edmond s language, as well as its context, makes clear that the constitutiona lity of this latter, information-seeking kind of stop was not then before the Co urt. Edmond refers to the subject matter of its holding as stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime. Ibid. (emphas is added). W e conced e that Edmond describes the law enforcement objective the re in question as a gener al interes t in crime contro l, but it specifies that the phrase general interest in crime control does not refer to every law enforc emen t object ive. Id., at 44, n. 1, 121 S. Ct. 447. We must read this and related general language in Edmond as we often read general language in judicial opinions as referring in context to circumstances similar to the circumstances then b efore the Court and not referring to quite different circum stances that the C ourt w as not th en con sidering . Id. at ___, 124 S. Ct. at 889, 157 L. Ed. 2d 843. In Ferguson v. City of Charleston, supra, the Supreme Court overturned nonconsensual urine drug tests performed by hospitals on pregnant women in the general population, who met certain symptomatic criteria. -23- It did not involve convicted or incarcerated felons. The women were regular maternity patients and did not know the samples were being used to develop evidence of drug use. The admitted aim in Ferguson was to prosecute drug-abusing mothers. Again, as in Edmond, the City of Charleston s immedia te purpose in executing the warrantless drug tests was to arrest and prosecute those subjected to the sear ch, i.e., genera lly to gathe r eviden ce of a crime b eing co mmitte d. Given that immediate law enforcement purpose, the Supreme Court held that the search did not fit any special need of law enforcement personne l. Ferguson, 532 U.S. at 82-83, 121 S. Ct. at 1291, 149 L. Ed. 2d 205. The Court also noted that the mothers subject to the drug testing policy were no t probatione rs or incarcer ates with dim inished expectations of privacy, but normal citizens . Ferguson, 532 U.S. at 79 n.15, 121 S. Ct. at 1289 n.15, 149 L. Ed. 2d 205 (stating, in distinguishing the case from Griffin v. Wisconsin , 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987), tha t Griffin is properly read as limited by the fact that probationers have a lesser expectation o f privacy than the public at large )). In the case sub judice, not only is the primary purpose of the Act to identify individuals involved in crime (including the vindication of those falsely convicted), or accidents 13 but the limited intrusion applies, not to members of the general public, like the Indianapolis checkpoints described in Edmond and the C harleston d rug tests desc ribed in 13 For example, if a person was involved in an autom obile accident where the person and all of his or her identifying documents were burned beyond recognition, and that person was an ex-convict who was subject to the Act, then the DNA profile might be used to identify the accident victim. -24- Ferguson, but only to a certain class of convicted criminals. As the prior cases illustrate, incarcerated persons have a severely diminished expectation of privacy. Unlike the unregulated access to DNA profile concerns of appellee, the only information obtained from the DNA linked to the individu al pursuan t to the Act is th e DNA identity of the person being tested.14 The DNA profile thus serves the purpose of increasing the efficiency and accuracy in identifying individuals within a certain class of convic ted criminals . The purp ose is akin to that of a fingerprint. As such, appellee and other incarcerated individuals have little, if any, expectation of privacy in their ide ntity. Ther efore, a search like the one authorized by the Act in this ca se, whose primary purp ose is to iden tify individuals w ith lessened expectations of privacy, is totally distinguishable from search of ordinary individuals for the purpose of gatherin g evidenc e against them in order to prosecute them for the very crimes that the search reveals. C. The Ex Pos t Facto Clauses Appellee,15 in his cross-petition, raises the question of whether the suppression court erred in not finding that the Act violates the Ex Post F acto Clauses contained within the United States Constitution and the Maryland Declaration of Rights. Appellee argues that the collection of DNA sa mples from all persons convicted of a qualifying crime, when the 14 The Act also has several provisions, discussed infra, specifically designed to protect individuals subject to the Act from the unauthorized use of their DNA profile. 15 As appellee is raising this question in a cross-petition, he is technically labeled the cross- appella nt. To be consistent and to avoid confusion, however, w e shall refer to Mr. Raine s only as appelle e. -25- qualifying crime was committed prior to the effective date of the Act, violates the relevant ex post facto clauses because the primary pu rpose of th e Maryland DNA Collection A ct is punitive in nature, making the statute retributive. The State, however, contends that the Act is civil in nature, a statute that, in and of itself, imposes no punishment upon the persons subjec t to DN A colle ction. Article I, § 10, clause 1 of the United S tates Constitution prohibits the States from passing any ex post facto law, sta ting, N o State s hall . . . pas s any . . . ex post facto Law. 16 The Maryland Declaration of Rights, Article 17, provides similar protections, as it states [t]hat retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal, are oppressive, unju st and inc omp atibl e with lib erty; wherefore, no ex post facto Law ou ght to be made; nor any retrospective oath or restriction be imposed, or required. T his Court has held that Maryland s ex post facto clause has been viewed generally to have the same meaning as its federal counterpart. Watkins v. Dep t of Pub. Safety and Correctional Services, 377 Md. 34, 48, 831 A.2d 1079, 1087 (2003) (quoting Gluckstern v. Sutton, 319 Md. 634, 665, 574 A.2d 898, 913 (1990) (quoting Anderson v. Dep t of Health & Mental Hyg., 310 Md. 217 , 223, 528 A.2d 9 04, 907 (1987)). An ex post facto law is defined as [a] law that ap plies retroactiv ely, [especially] in a way that negatively affects a person s rights, as by criminalizing an action that was legal 16 The United States Constitution additionally prohibits Congress from passing ex post facto laws. U.S. Constitution, Art. I, § 9, cl. 3. -26- when it was committed. Black s Law Dictionary 601 (Bryan A. Ga rner ed ., 7th ed., West 1999) (alteratio ns add ed). This Court has said that two critical elements must be present for a criminal or p enal law to be ex post facto : it must be retro spective, that is, it m ust apply to events occurring b efore its enactment, and it must disadv antage the off ender a ffecte d by it. Frost v. State, 336 Md. 125, 136, 647 A.2d 106, 112 (1994) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S . Ct. 960, 964, 67 L. Ed . 2d 17 (1981) (foo tnote omitted)). In Stogner v . California , 539 U.S. 607, __, 123 S. Ct. 2446, 2449-50, 156 L. Ed. 2d 544 (2003) (quoting Calder v. B ull, 3 Dall. 3 86, 391, 1 L. Ed. 648 (1798)), the Supreme Court recently reiterated the type o f m anif estly unjust and oppressive harms that the Ex Post Facto Clause was intended to avoid. The Stogner Court quoted the following words of Justice Chase from Calder v. B ull, supra: I will state what laws I con sider ex post facto laws, with in the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law th at aggrava tes a crime, or makes it greater than it was, when com mitted. 3d. Every law that ch anges the p unishme nt, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testim ony, than the law required at the time of the commission of the offence, in order to convict the offe nder. All these, an d similar laws, are manif estly unjust and oppressive . Stogner, 539 U .S. at __, 1 23 S. C t. at 2450 , 156 L. Ed. 2d 544 (quoting Calder, 3 Dall. at 390-9 1, 1 L. E d. 648) (emph asis om itted). The State emphasizes the issue as to whether the Act in the case sub judice is punitive in nature as whether the [A ct], which b roadened qualifying of fenses fro m sex of fenses to -27- all violent crimes, falls within the third category of prohibited laws listed in the above excerpt from Stogner, i.e., whether the Act changes the punishment, and inflicts a greater punishm ent, than the law annexed to the crime, when committed. Stogner, 539 U.S. at __, 123 S. Ct. at 2450, 156 L. Ed. 2d 544 (quoting Calder, 3 Dall. at 390-91, 1 L. Ed. 648). An essential compon ent of our a nalysis, therefore , is a determin ation of w hether the A ct in question is penal/pun itive in charac ter, or wheth er it was inten ded to be m erely civil in nature. Although the issue of whether DNA collection statutes are criminal or civil in nature has not been d ecided by eithe r the Supre me Cou rt or this Court, we find guidance in the Supreme Court s decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), and its ex post facto analysis of a sex offender registration statute. The Supreme Court, in Smith v. Doe, supra, set out the following fram ework for its analysis of whether the Alaska Sex Offender Registration Act was civil or punitive: We must ascertain whether the legislature meant the statute to establish civil proceedings. Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). If the intention of the legislature was to impose punishm ent, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State s] intention to deem it civil. Ibid. (quoting United States v. Ward, 448 U.S. 242, 248-249, 100 S. C t. 2636, 65 L. Ed. 2d 7 42 (1980)). Because we ordinarily defer to the legislature s stated intent, Hendricks, supra, at 361, 117 S. Ct. 2072, only the clearest proof will suf fice to override legislative inten t and transform wh at has been denomin ated a civil remedy into a crim inal penalty, Hudson v. United States, 522 U.S. 93, 100, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997) (quoting Ward, supra, at 249, 100 S. Ct. 2636); see also Hendricks, supra, at 361, 117 S. Ct. 2072; United States v. Ursery, 518 U.S. 267, 290, 116 S. Ct. 2135, 135 L. Ed. 2d 54 9 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S. Ct. 1099, -28- 79 L. E d. 2d 36 1 (198 4). Smith, 538 U.S. at 92, 123 S. Ct. at 1146-47, 155 L. Ed. 2d 164. Tha t Court w ent on to state that the question of whether legislature meant for the statute to be criminal or civil in nature was a matter of statutory construction and that it first would consider the statute s text and structure in determining that legislative o bjective . Id.; see also Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 2081-8 2, 138 L. Ed. 2d 5 01 (1997). The Smith Court next asked whether the legislature indicated either expressly or impliedly a preference for one label or the other. Smith, 538 U.S. at 93, 123 S. Ct. at 1147, 155 L. Ed. 2d 164 (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 493, 139 L. Ed. 2d 450 (1997) (internal citations omitted)). The stated purpose in the Alaska statute was aimed to protect the public against the high rate of recidivism of sexual predators. The Suprem e Court reb uffed th e defense claim that, be cause the p rotection of the public welfare is similar to one of the purposes of criminal laws, the legislature in tended the statute to be criminal in nature, by stating: As the Court stated in Flemming v. Nestor, rejecting an ex post facto challenge to a law terminating benefits to deported aliens, where a legislative restriction is an inciden t of the State s power to protect the h ealth and sa fety of its citizens, it will be considered as evidenc ing an intent to exercise that regulatory powe r, and no t a purp ose to a dd to the punis hmen t. 363 U .S., at 616, 80 S. Ct. 1367 (citing Hawker v. New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002 (18 98)). The Court repeated this principle in 89 Firearms, upholding a statute requiring forfeiture of unlicensed firearms against a do uble jeopardy challenge. The Court observed that, in enacting the provision, Congress was concerne d with the widesp read traffic in firearms and with their general availability to those whose posses sion thereof was co ntrary to the public interest. 465 U.S., at 364, 104 S. Ct. 1099 (quoting Huddleston v. -29- United States, 415 U.S. 814, 824, 94 S. Ct. 1262, 39 L. Ed. 2d 782 (1 974)). This goal was plainly more remedial than punitive. 465 U.S., at 364, 104 S. Ct. 1099. These pre cedents ins truct us that ev en if the objec tive of the Ac t is consistent with the purposes of the Alaska criminal justice system, the State s pursuit of it in a regulatory scheme does not make the objective punitive. Smith, 538 U.S. at 93-94, 12 3 S. Ct. at 1147-48, 15 5 L. Ed. 2d 164 (emphasis added ). In this case, the Maryland Legislature specifically enumerated several purposes for the Act, which we have heretofore described, none of which was to further pu nish crimina ls for crimes already committed at the time of the enactment of the law. Appellee argues that the primary purpose of the extraction, analysis and permanent retention of an inmate s DNA under the Maryland DNA collection statute is to promote the traditional aims of criminal punish ment. Because one of the statute s purposes is for the investigation of future or past crimes, appellee contends that the deterrent effect of such a statute brings it within the purview of the ex post facto clauses. The Supreme Court, in Smith, specifically rejected that far-reaching assertion, holding that the purpo se of the law being con sistent with traditionally criminal aims was not dispositive of the issue. That Court stated that even if the objective of the Act is consistent with the pur poses o f the . . . criminal justice system, the State s pursuit of it in a regulatory scheme does not make the objective punitive. Smith, 538 U.S. at 94, 123 S. Ct. at 1148, 155 L. Ed. 2d 16 4; see also Hudson, supra, 522 U.S. at 105, 118 S. Ct. at 496, 139 L. Ed. 2d 450 (stating, in a double jeopardy context, that [t]o hold that the mere presence of a deterrent purpose render s such s anction s crimin al . . . would severely undermine the Governm ent s -30- ability to engage in effective regulation ). In the case sub judice, the Act functions as a regulatory scheme d esigned to p rotect public s afety by providin g a mean s to identify persons. This purpose is furthered whether the persons to be identified are assailants or victims, or are involved in crimes or accidents, because the Act also was created to assist in the identification of hum an remain s and the ide ntification of missing ind ividuals as w ell as to aid in criminal investigations. Basically, no prior action of a convicted felon is criminalized or punished by the test of the Act. The Act primarily serves as a regulatory scheme aiding in the identification of individuals. Any deterrent effect is secondary to the regu latory nature of the statute. The facts of appellee s case do not support his deterrence argument that such a traditional aim of the criminal justice system serves to make the Act penal or punitive in nature. In appellee s case, the DNA match could not have acted to deter him from committing the crime with which h e is now charged, because the rape occurred years prior to the takin g of his DNA . The DNA match to the independent DNA evidence of the victim s rape provided only probable cause for a nother D NA test; it did not stand alo ne as the on ly evidence to conv ict appe llee. See § 2-510. T he semen he had allegedly deposited in the victim was placed voluntarily there by him against the victim s wishes. It was not collected pursuant to the Act. T he samp le taken pursuant to the Act, thus, provides no deterrent effect for past crime, nor any direct evidence at trial on a new charge. Evidence independent of the crime for whic h the individual is being incarcerated must exist, along with a second DNA -31- match, bef ore any possib ility of punishm ent arises. A nd then the punishm ent is for a prior crime and it is not increased. Add ition ally, any rehabilitated convict would suffer no ill effect from the statute, and any effect from the Act is even less restrictive than the public ridicule, shaming and affirmative obligations of the sex offender registration laws not held to be c riminal in nature in Smith. In the case at bar, the investigatory nature of the Act requires independent DNA evidence of a crime in order for the person to b e subject to a match. Th ere is no affirmative obligation imposed on, or restraint on freedom to the convict after the buccal swab is taken. Simply put, no punishm ent actually is levied by the Act. The Act s placement in the Public Safety Article, a s opposed to the Crim inal Article of the Maryland Code, supports that the Act s purpose is primarily civil in nature. The Supreme Court has recognized aspects of statutory construction and placement within the code as factors in determination the legislative intent on the characterization of a law as criminal or civil. In Smith, the Court stated that formal attributes of a legislative ena ctment, such as the manner of its codification or the enforcement procedu res it establishes, are probative of the legislature s intent. Smith, 538 U.S. at 94, 123 S. Ct. at 1148, 155 L. Ed. 2d 164. The provisions of sex offender registration in Smith were contained, not on ly in Alaska s Hea lth, S afet y, and Housing Code, but additionally in the state s criminal procedure code. The Court nonetheless held that [t]he partial codification of the Act in the State s criminal procedure code is not sufficient to support a conclusion that the legislative intent -32- was punitive. Id. at 95, 123 S. Ct. at 1148, 155 L. Ed. 2d 164. In the case sub judice, the fact that the re is no partial c odification w ithin the Criminal Article of the Co de the A ct is located sole ly within the Pu blic Safety Article suggests that the Act creates a regulatory scheme and is thus civil in ch aracter. For e xample, as previously mentioned, § 2-502 of the Act creates a regulatory statewide DNA data base system, which is headed by a D irector. Pursu ant to § 2-50 3, the Direc tor and Se cretary of the D NA da ta base system are to consult with each other to adopt appropriate regulations for the administration of the system. Additionally, none of the § 2-505 purposes directly calls for any criminal sanctions to be impo sed for prior convictions. Section 2-511, which contains the Act s only specific reference to the Criminal Procedure Article of the Maryland Code (besides the qualifying crimes in § 2-501 (g) (1) and § 2-504), merely allows for the removal of an individual s DN A information and sample fro m the system w here the ind ividual fits the expung ement criterion of the Code. Finally, the last section in the Act, § 2-512, is the only section which prescribes any penalty whatsoever. The penalties, however, do not punish the person whose DNA was collec ted pursua nt to the Ac t, but any person who illega lly discloses or obtains DNA information from th e data b ank. Thus the o nly penalties actu ally created by the Act serve not to punish the persons subject to the Act s DNA collection provisions because of their prior convictions, but specifically to protect the rights of those same individuals. A review of the Act, therefore, reveals that it imposes no affirmative obligation, impediment or punishment on those convicted criminals subject to its provisions. -33- The Act is civil, not criminal, in nature. Although we have determined that the Act is civil in character on its face, we now look to an analysis of the actual effects of th e Act. In answering this question, the Supreme Court has set out several factors for consideration in the case of Kennedy v. MendozaMartinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644 (1963), which have been incorporated into Supre me Cou rt ex post facto case law f rom the are a of doub le jeopardy jurisprudence. The Supreme Court, in Mendoza-Martinez, stated: The punitive na ture of the sa nction here is evide nt under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, even though in other cases this problem has been extremely difficult and elusive of solution. Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aim s of punishment retribution and deterrence, whe ther the beh avior to w hich it applies is already a crime, whether an alternative purpose to which it may rationally be con nected is assignable for it, and whether it appears excessive in relat ion to the alter nativ e purpos e ass igne d are all re leva nt to the in quiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be consid ered in r elation to the statu te on its f ace. Id. (footnotes omitted). The Supreme Court has said that the Mendoza-Martinez factors are neither exhau stive or d ispositiv e in ev ery conte xt, Smith, 538 U.S. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d 164 (quoting United States v. Ward, 448 U.S. 242, 249, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742 (1980)), but serve as useful guideposts, Smith, 538 U.S. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d 164 (quoting Hudson, supra, 522 U.S . at 99, 118 S . Ct. at 493, 139 L. Ed. 2d 450), in analysis by a court. In the ex post facto context most analogous to the -34- case sub judice, the Smith Court said: The factors most relevant to ou r analysis are wheth er, in its necessary operation, the regulator y scheme: has been regarded in our history and traditions as a punishment; im poses an a ffirmative d isability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpu nitive pu rpose; o r is exce ssive w ith respe ct to this p urpose . Smith, 538 U.S. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d 164. In analyzing the effects of the Alaska Sex Offender Registration Act under these Mendoza-Martinez factors, the S upreme C ourt held tha t the effect of the statute did not violate the Ex Post F acto Clause of the U nited S tates Co nstitution . The Smith Court began its discussion of the Mendoza-Martinez factors with an analysis of whether statutory requireme nts for sex offenders to register fell within historical punishments. In holding that public sex offender registration, including internet posting of registration information, was not akin to tradition al punishments such as shaming, branding and the like, the Supreme Court held that: The purpose and the principal effect of no tification are to inform the public for its own saf ety, not to hum iliate the offen der. Wide spread pu blic access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collate ral cons equen ce of a valid reg ulation. Smith, 538 U.S. at 99, 123 S. Ct. at 1150, 155 L . Ed. 2d 164. The Court went on to describe that, while the effect of internet posting made reg istration inform ation more readily available and subjected the offender to shame and humiliation, it merely made the regulatory process more efficient and effective - not punitive. The DNA profiles obtained pursuant to the Act certainly make the identification of -35- suspects, victims, John Does and the like, more efficient and reliable than traditional methods such as fingerprinting, but, similar to the internet posting of sex offender registrations, do not make the statu te puniti ve. Addition ally, a convicted c riminal subje ct to this Act will not be subjected to further penalties or punishments merely because of his or her compliance with the terms of the Act. In order for the convicted criminal to face such punishment indirectly resulting from compliance with the Act, he or she must have committed, at some point in the past, or must commit at some point in the future, an independent criminal act for which independent punishment might be imposed upon conviction. Any punish ment stem ming from this independent act would only occur after conviction for the com mission of that separate crime. The police would need to recover independent DNA evidence of the future (or past) crime before the DNA profile could be used and the DNA taken pursuant to the Act would merely be for identification in light of the new (or o ld) D NA evid ence norm ally recovered from a victim . Not only is sep arate evidence of a separate crime required before any prosecution could take place based upon the convicted criminal s DNA swab, bu t a positive initial D NA m atch is not ge nerally admissible at trial the matc h results only in p robable ca use for a se cond sw ab and test. These facts clearly illustrate that the Act itself does not contemp late additional, traditional punishm ents for past crimes. It only seeks, using recent, accurate technology, to search a pool of pro bable re cidivists to identi fy person s, either victims or perp etrators, of sep arate crimes, victims of accidents or missing persons. -36- The next Mendoza-Martinez factor discussed by the Smith Court was that of imposing an affirmative disability or restraint. Here, as previously mentioned, no such disability or restraint exists. Unlike the sex offender statutes, which, although found not to impose a restraint, imposed affirmative obligations o n sex off enders to re gister and submit frequent updates to authorities, the DNA Collection Act imposes no duty whatsoever on the convicted criminal. The only action required of the criminal by the Act is submitting to a single buccal swab of the indiv idual to obtain that specific individual s DNA. Nothing is required after this initial taking of a DNA sample. There is no n eed for the convict to return with updates, and he or she is not forced to divulge his personal information to the public.17 In fact, a 17 Although Appellee and the amici speak of doomsday type scenarios where every person s, including non-convicts , DNA would be subject to search by both police and unauthorized persons an d soon w ould be su bject to nearly un regulated a ccess, the current version of the Maryland DNA Collection Act does not even approach such unregulated access to DNA profiles. The Legislature has inserted several provisions within the Act for the purpose of safeguarding against this very type of unregulated access to personal information. First, pursuant to § 2-509, all personal identifiers are to be removed before any DNA profile is put in to the popula tion data base. Similarly, § 2-506 (b) of the Act limits the use of the DNA information to the stated purposes (of which, DNA for research purposes may only be used after person al identifiers are rem oved). Additionally, unlike a rehabilitated sex offender who cannot remove his information from the registry, a wrongly convicted person whose crime fits the expungement criterion of the § 10-105 or § 10-106 of the Criminal Procedure Article can request to have his or her DNA profile and sample expunged from the system. § 2-511. But, most importantly, the Legislature included severe penalties for the improper disclosure, and unauthorized obtaining, of DNA profile information in § 2-51 2. In sum, the statute specifically is limited to convicted criminals (including persons convicted of felonies and certain misdemeanor burglaries) with a high rate of recidivism and contains several protections it does not provide a means for non-law enforcement persons generally to obtain and misuse personal information of all convicts or any other persons. The Act does not promote or even contemplate allowing unfettered access to DNA profiles of a ll (contin ued...) -37- wrongly convicted criminal, after his or her conviction is reversed or vacated, may expunge his or her DNA profile and samples from the data base, thus entirely ceasing his or her connection with the DNA data base. Thus, it is clear that the Act imposes little restraint on the persons subject to it, as, after they serve their sentences, they are free to live their lives, within the confines of the law, as they wish. Without citing to any case s, appellee arg ues that a de termination in regard to th is factor does not necessarily focus on the manner of the collection of the DNA sample, but rather on the extent and scope of information so collected. The Supreme Court, in Smith, focused on physical res traints, emplo yability and mobility of the sex offenders in spite of the public availab ility of the in forma tion po sted. Smith, 538 U.S. at 99-101, 123 S. Ct. at 115152, 155 L. Ed. 2d 164. Here, even if the extent and scope of the information collection w ere to be considered, it would not alter our decision. The public does not see any of the priv ate information which appellee argues takes this case into the realm of a punitive nature. The Act provides se veral protec tions against the unauthorized dissemination of such information. Add ition ally, the extent and scope of the information collected imposes no restraint or disability on the con victed crimin al. Once re leased from prison or up on comp leting probation, the individuals are free to go about their everyday lives. They are not requ ired to submit to periodic tests, updates or meetings. They can move out of the state. They are not 17 (...continued) criminals and/or othe r individuals. It is limited to a sp ecific grou p of crimin als likely to be repeat offenders. Because of the spec ific protection s outlined in th e Act, there is little, if any, danger of the slippery slope as appellee argues. -38- subject to ridicule or sh aming fo r their past crimes. They may apply for jobs. The list goes on after the minor physical intrusion of the buccal swab (which lasts only for a few seconds), these individuals are subjected to no more restraint than every other convict or exconvict. The third Mendoza-Martinez factor discu ssed in Smith was whethe r the statute promotes the traditional aims of punishment retribution and deterrence. Mendoza- Martinez, 372 U.S . at 168-69, 8 3 S. Ct. at 567-68, 9 L. Ed. 2d 644. As previously discussed, the Smith Court specifically rejected the argument that the mere presence of a deterrent purpose renders such sanctions criminal. Smith, 538 U.S. at 102, 123 S. Ct. at 1152, 155 L. Ed. 2d 16 4; see also Hudson, supra, 522 U.S. at 105, 118 S. Ct. at 496, 139 L. Ed. 2d 450. In fact, the Court said that where the reporting requirement under the sex offender registration statute was related to the danger of recidivism, it was consistent with the regulatory objectiv e. Smith, 538 U.S. at 102, 123 S. Ct. at 1152, 155 L. Ed. 2d 164. Here, the obtaining of a specified group of convic ts DNA is reasonab ly related to combating the danger of recidivism and is con sistent with th e regulatory objectives of solving crimes, identifying victims and finding missing persons. The Supreme Court has stated that a statute s rational connection to a nonpunitive purpose is a [m]ost sig nificant factor in [its] d etermination that the statute s effects are not punitiv e. Smith, 538 U .S. at 102 , 123 S. Ct. at 1152, 155 L. Ed. 2d 164 (quoting United States v. Ursery, 518 U.S . 267, 290, 1 16 S. Ct. 2135, 2148, 135 L. E d. 2d 549 (1996 )). In -39- the case sub judice, the Act is rea sonably related to its public saf ety purposes in identifying suspects, and human remains. The Ac t functions to create a more efficient method of identification and increases the chances that guilty persons will be apprehended and innocent persons absolved of crimina l responsibility. In fact, it not only ha s been use d to solve crimes and identify suspec ts, but also to vin dicate those wrongly convicted. By making the identification process more efficient and accurate, the Act is rationally related to its purposes. Appellee argues that even if the Act is rationally related to the nonpunitive purposes of the Act, it is exces sive in respect to those purposes, because the DNA profiles and samples reveal far mo re than a n indiv idual s id entity. We di sagree . First, the law o nly applies to persons convicted of felonies (and a small, narrow class of misdemeanor burglaries). The Smith Court said: The Ex Post Facto Clause does not preclude a State from making reasonab le categorical ju dgments that convic tion of spec ified crimes should entail particular regulatory con sequenc es. We ha ve upheld against ex post facto challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresp onding risk asse ssmen t. See De Veau, 363 U .S., at 160, 80 S . Ct. 1146; Hawker, 170 U.S., at 197, 18 S . Ct. 573. A s stated in Hawker: Doubtless, one who has violated the criminal law may thereafter reform and beco me in fac t possessed of a good moral cha racter. But the legislature has pow er in cases o f this kind to make a rule of universal application. . . . Ibid. The State s determina tion to legislate w ith respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Fac to Clause . Smith, 538 U.S. at 103-04, 123 S. Ct. at 1153, 155 L. Ed. 2d 164. In the case at bar, the permanent retention of the DNA samples, contrary to appellee s assertions, is not excessive -40- in light of the p rofiles alread y being stored in the data bank. In fact, if a prof ile is accidently erased or destroyed, retaining the sample prevents future intrusions or restraints on the individual, because another buccal swab would not need to be collected. The Act ensures a one-time minimal intrusion and is even less intrusive than the continuing sets of requirements, reports and updates, that was upheld by the Supreme Court in Smith. The Act s scope is furthered minimized by the fact that the Act places several protections on the storage and dissemination of the DNA information and samples, even criminalizing the improper disclosure and obtaining of DNA profile information. The Act is clearly not excessive in light of these protections coupled with the substantial public goo d it serves in identifying those involved with criminal acts. Similar to the Supreme Court s decision in Smith, there is no ne ed for this C ourt to discuss the final two Mendoza-Martinez factors: whether the Act only functions upon a finding of scienter and whether the behavior the Act applies to is already a crime, as they have little relevance h ere. Here, the Act, like the s ex offen der registration laws in Smith, primarily focus es on p ast crim inal con duct, i.e., those convicted of the qualifying crimes, which, as in Smith, is a necessar y beginning p oint, for reci divism is the statu tory conc ern. Smith, 538 U.S. at 105, 123 S. Ct. at 1154, 155 L. Ed. 2d 164. As such, no scienter or mens rea is needed to trigger the ef fect of the A ct. The United States Court of Appeals for the Fourth Circuit, in Jones v. Murray, supra, also has held that the V irginia DN A collectio n statute, similar to Maryland s in that it calls -41- for the taking o f DNA samples, alb eit blood samples, from convicts incarcerated prior to the enactment of the statute , was not in violation of the federa l Ex Post F acto Clause.18 In holding that the Ex Post Facto Clause w as not violate d by the Virg inia statute, the F ourth Circuit stated: Emerging clearly from this discussion is the conclusion that a statute that is not penal cannot be ex post facto. Thus it can not be said that the DNA testing, itself, runs afoul of the Ex Post F acto Clause. We agree with the district court s fin ding that: The requireme nt that prisoners provide blood samples is not punitive in natur e. . . . The blood sample is taken and analyzed for the sole purpose of establishing a data bank which w ill aid future l aw en forcem ent. In light of our determination that the program withstands challenge under the Fourth Amendment, the blood testing requirement legally can be implemented, and as is the case regarding any valid prison regulation, violators can be administratively punished for their failure to provide samples. The Ex Post Facto Clause does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with good prison administratio n, safety and effi cien cy. As we stated in Gaston v. Taylor, 946 F .2d 340 , 343 (4 th Cir.1 991) (e n banc ), [C]hanges in a prisoner s location, variations of daily routine, changes in conditions of confinement (including administrative segregation), and denials of privileges matters which eve ry prisoner can anticipate are contemplated by his original sentence to prison are necessarily fun ctions of pr ison man agemen t that must b e left to th e broad discretio n of pr ison ad ministra tors. 18 The Fo urth Circuit did hold, however, that the specific provision of the statute that allowed: the continued incarceration beyond a tim e six mon ths prior to the end of the actual sentence o f an inma te convicted prior to the enactment of § 19.2-310.2, for any reason not reflected in the terms of the mandatory parole provision, would constitute a retroactiv e extension of the inm ate s sentenc e which is prohibited by the Ex Post F acto Clause . Jones, 962 F.2d at 310. Th at situation, how ever, is not presented by the Act or by the case sub judice. -42- It is precisely because reasonable prison regulations, and subsequent punishment for infractions thereof, are contemplated as p art of the sentence of every prisoner, that they do not constitute additional punishment and are not classified as ex post facto. Moreover, since a prisoner s original sentence does not embrace a right to one set of regulations o ver anothe r, reasonable amendments, too, fall within the anticipated sentence of every inmate. We therefore conclude that neither Virginia s b lood testing re quiremen t, itself, nor the infliction of punishment within the terms of the prisoners original sentence for a violation of the requirement, is ex post facto. Jones, 962 F .2d at 30 9-10. The provisions of the Act here a t issue do no t make a p rior non-crim inal act crimin al. They do not m ake a prio r criminal a ct a more serious crime. They do not change the punishment for any crime. They do not alter the rules of evidence or require less evidence in order to suppo rt a conviction, than the level of evidence required before the Act. The taking of D NA data does not increase the p unis hme nt fo r any c rime . It me rely provides information. If no crime s exists to which the data is matched, nothing happens. By itself, the DNA data is data and nothing more. Given the analogous Supreme Court case of Smith, the Fourth Circuit s specific holding in regard to the portion of the Virginia statute resembling Maryland s DNA collection statute and our analysis of the specific text, structure and effect of th e Maryland DNA Collection A ct, it is clear that the Act was intended not to elicit a punishm ent for acts a lready comm itted, but to create a sensible reg ulative sche me in order to protect the public by identifying individuals involved with crimes. III. Conclusion We hold that the Circuit Court for Montgomery County erred in holding that the -43- Maryland DNA Collection A ct was un constitutional. The Act s provisions allow ing the State to obtain the DN A profile of a certain g roup of convicted persons to store in a DNA data base is reasonable, because the minimal physical intrusion on the inmate, a person with a diminished expectation of privacy, is outweighed by the legitimate governmental interest in identifying persons involved with crimes, including vindicating those falsely convicted. The suppression court was correct, however, in finding that the Act did not violate the Ex Post Facto Clauses of the United States Constitution and the Maryland Declaration of Rights. The motion should have been denied.19 The suppression court s granting of the motion to 19 We note that an analysis of whether an intrusion is minimal focuses on the pervasiveness of the physical intrusion itself and the place being searched. The balance of reasonableness does not in volve w hat is found by the sea rch, i.e., the amount and content of the info rmation seized. The error in logic if we were to focus on what was found instead of the physical intrusion can be see n in the following examples. If the government forced an operation to recover bone marrow from an inmate, which would be a much more serious physical intrusion than a buccal swab, and no relevant information was found from that operation, by Judge Wilner s logic, on ly a minimal intrusion would have occurred. If a rectal examination of a prisoner were to be conducted, and if nothing were found the intrusion would be less than the intrusion would be if contraband were found, but unquestionably the digital penetration would b e the same . Such resu lts are illogical. In the case sub judice, the intrusion that we must assess under the Fourth Amendment balancing test is obtaining DNA from in dividu als und er the A ct, i.e., a buccal swab. Several courts have held that this type of search (or, in the case of blood tests and the like, more invasive searches) is minimal when the pers on bein g searc hed is in carcera ted. See Jones, 962 F.2d at 307 (holding tha t, while mo re invasive th an fingerprinting, that a b lood test to obtain DNA was still a minor intrusio n), cert. denied, 506 U.S. 977, 113 S. Ct. 472, 121 L. Ed. 2d 378 (1 992); Rise, 59 F.3d at 1560 (upholding the Oregon DNA collection law prior to, as previously mentioned, the Ninth Circuit s Kincade opinion, which, although it impliedly overruled Rise, subsequently was vacated by the Ninth Circuit, that, as stated prev ious ly, has yet to render a decision on rehearing en banc, and stating [t]hat the gathering of DNA information requires the d rawing of blood rather than inking and rolling a person s (contin ued...) -44- suppress is reversed. 19 (...continued) fingertips does not e levate the intrusion up on the plain tiffs Fourth Amen dment inte rests to a level beyond minimal ), cert. denied, 517 U.S. 1160, 116 S. Ct. 1554, 134 L. Ed. 2d 656 (1996); Boling v. Romer, 101 F.3d 133 6, 1340 (10th Cir. 1997) (up holding D NA statu e, in part, because of the minimal intrusion of saliva an d blood tes ts ); Bousm an v. Iowa Dist. Court for Clinton C ounty, 630 N .W.2d 789, 798 (Iowa 2001) (stating that the Iowa cou rt does not think sa liva samplin g involves a significant intrusion into a person s b odily security ); Landry, 709 N.E.2d at 1094 (Massachusetts Supreme Court stating that their DNA statute involves persons who have a low expectation of privacy in their identity, and a new, and validated, technology which can, by means of a properly performed minimally invasive test, obtain and preserve an extremely accurate record o f identification ) (emphasis ad ded); Johnson v. Comm onwea lth, 529 S.E.2 d at 779 (V irginia Supreme Court agreeing with the Jones Court s ho lding that the b lood test to ob tain DN A was a minimal intrusion), cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000); In re Nontestimonial Identification Order Directed to R.H., 762 A.2d 1239, 1247 (Vt. 2000) (concluding that saliva sampling in volves no intrusion into a person s life or though ts and that th e court did not believe a saliva procedure involves a serious intrusion upon personal security ) (citation omitted); Doles v. State, 994 P. 2d 315, 318-19 (Wyo. 1999 ); cf. Skinner v. Railway Labor Executives Assoc., 489 U .S. 602 , 625, 109 S. Ct. 1402, 1417, 103 L. Ed. 2d 639 (1989) (intrusions su ch as bloo d and urin e tests are no t significant ); Schmerber v. California , 384 U.S. 757, 771, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908 (1966) (stating that extraction of blood samples are a commonplace in these days of periodic physical examination and experience with them teach es that the qu antity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain ) (footnote omitted); Winston v. Lee, 470 U.S . 753, 762, 1 05 S. Ct. 1611, 1617, 84 L. Ed. 2d 662 (1985) (recognizing that Schmerber stated that so ciety s judgme nt that blood tests do not constitute an unduly extensive imp osition on an individual s p rivacy and bo dily integrity ) . The amount of information seized pursuant to that buccal swab does not make, and logically c annot m ake, tha t initial min imal intru sion of obtainin g it, more intrusiv e. -45- In the Circu it Court for M ontgom ery County Case No. 98303 IN THE COURT OF APPEALS OF MARYLAND No. 129 September Term, 2003 __________________________________________ STATE OF MARYLAND v. CHARLES RAINES __________________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. __________________________________________ Concurring Opinion by Raker, J. __________________________________________ Filed: August 26, 2004 Raker, J., concurring: I join in the jud gment of the Court re versing the judgmen t of the Circuit Court for Montgom ery County which h eld that the M aryland DN A Collec tion Act is unconstitutio nal. I write separ ately because, in my view, the statute is constitutional on the narrow grounds that DNA sampling is an acceptab le means o f identifying pr isoners, and on this basis a lone, is reasonable.1 1 The State argues that the Maryland DNA Collection Act is constitutional based on the special needs doctrine, as the collection of DNA from convicted offenders serves a special need of the government. Some courts have held prisoner DNA databases to be acceptable on that b asis. See e.g ., Green v. Berg e, 354 F.3d 675, 679 (7th Cir. 200 4); United States v. Kim ler, 335 F.3d 1132, 1146 (10th Cir. 2003). I do not believe that special needs justifies suspicionless collection of DNA from prison inmates. I agree with Judge W ilner, that the pu rpose of th e DNA collection act is to further normal law en forcem ent nee ds. See Wilner, J., concurring. Therefore, the special needs doctrine cannot support the constitutionality of the Maryland DNA Collection Act under the Fourth A mendm ent. Justice Blackm un introdu ced the term special ne eds in the c ontext of F ourth Ame ndme nt law. See N ew Jer sey v. T.L .O., 469 U.S. 325, 351, 105 S. Ct. 733, 747, 83 L. Ed. 2d 720 (1985) (Blackmun, J., concurring). As explained in Fergu son v. C harlesto n, 532 U.S. 67, 121 S. C t. 1281, 149 L. Ed. 2d 205 (2001): Justice Blackmun agreed with the Court that there are limited exceptions to the proba ble-cause re quirement, in which reasonab leness is determined by a careful balancing of governmental and private interests, but concluded that such a test should only be applied in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable . . . Id. at 74 n. 7, 121 S. Ct. at 1286 n. 7, 149 L. Ed. 2d 205 (emphasis added) (citations omitted). While accepting this interpretation of search and seizure law, the Supreme Court has prohibited special needs analysis in the contex t of ord inary law enforc emen t activities . See id. at 84, 121 S. Ct. at 1291-92, 149 L. Ed. 2d 205. I agree with the special needs analysis set out by Justice Robert Utter, in State v. Olivas , 856 P.2d 107 6 (Wash. 1993 ) (concurring): (contin ued...) I cannot agree with the majority that prisoners, or for that matter, all convicted felons, merely because they are incarcerated, lose the expectation of privacy for bodily fluids. Prisoners do not forfeit their ge neral right to re main free from bodily invasions, even though they do have a greatly reduced expectation of privacy. That reduced expectation of privacy is limited g enerally to security co ncerns and pri son ad ministra tion, see Jones v. Murray, 962 F.2d 302, 311-12 (4th Cir. 1992) (Murnaghan, J., concurring in part and dissenting in part), and bodily searches of inmates are to be considered in light of the balance between these interests and individ ual priv acy rights. See Bell v. Wolfish, 441 U.S . 520, 560, 9 9 S. Ct. 1861, 1885, 60 L. Ed. 2d 447 (1 979). Therefore, practical matters, generally related to the control of dange rous inma tes, determin e the accep tability of Fourth Amendmen t limitations. See Hudson v. Palmer, 468 U.S . 517, 524, 1 04 S. Ct. 3194, 3199, 82 L. Ed. 2d 393 (1984). These considerations attest to some privacy right among prisoners, even if that right may be 1 (...continued) [T]he special needs analysis . . . was not designed for application to searches and seizures in the context of ordinary law enforcem ent. Instead, the non-con sensual DNA testing scheme should be analyzed and upheld under traditional doctrin es of cr iminal F ourth A mend ment la w. Id. Noting that the rationale of the special needs doctrine has not been fully elaborated by the Suprem e Court, Justice Utter opined that it is unclear w hether courts are to balance the government s need to co nduct a sea rch against a n individua l s privacy interest, o r to balance the government s need to conduct the search without a warrant against an individual s privacy in terest. See id at 1090. If special needs justifies a search under the former, the Fourth Amen dment an d the war rant requirem ent will be swallowed by the exception to the rule. See id. at 1092 (noting that if special needs analysis were to be extended to the arena of criminal law enforcement, the warrant re quiremen t of the Fou rth Ame ndment c ould ultimately be rendered illusory). -2- limited to goals related to prison administration and security. As such, absent mo re specific justification, invasion of an inmate s body cannot be supported by a lessened expectation of privacy alone. I find the Sta te s analogy to th e collection o f fingerprin ts convincin g and w ould uphold the statute on that basis alone. Although the DNA sample differs from a fingerprint in that far more personal information could be discovered and revealed, DNA type need be no more informative than an ordinary fingerprint. For ex ample , the thirteen core S TR loci u sed in current criminal offender databases are noncoding, nonregulatory loci that are not linked to any genes in a way that would permit one to discern any socially stigmatizing conditions. The profile of an individual s DNA molecule that is stored in a properly constructed DNA identification database (like the FBI s Com bined DN A Index System (C ODIS)) is a series of numbers. The numbers have no meaning except as a representation of molecular sequences at DNA loci that are not indicative of an individual s personal traits or propensities. In this sense, the CODIS 13-STR profile is very much like a social security numb er tho ugh it is longer and is assigned by chance, not by the federal government. In itself, the series of numbers can tell n othing about a person . But because the sequence of numbers is so likely to be unique (with the exception of identical twins), it can be linked to identifiers such as name, da te of birth, or so cial secu rity number, an d used to determine the source of DNA found in the course of criminal investigations or to identify human remains or persons who are lost or m issing. D. Kaye & M. Sm ith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wis. L. Re v. 413, 431-32 (20 03) (footnotes om itted). Under the Maryland DNA Collection Act, the use of the information acquired by the -3- State is limited. S ection 2-50 5 of the P ublic Safe ty Article states, in rele vant part: (b) Limitations on DNA records. (1) Only DNA records that directly relate to the ide ntification of individuals shall be collected and stored. (2) DNA records may not be used for any purposes other than those specified in this subtitle. Section 2-5 12 of the P ublic Safe ty Article states, in rele vant part: (a) Disclosure of DNA information to unauthorized persons prohibited A person who, by virtue of employment or official position, has posse ssion of or a ccess to individually iden tifiable DNA informatio n containe d in the statewide DNA data base system or statewide DNA repository may not willfully disclose the informatio n in any manne r to a person or agency not entitled to receive the information. (b) Obtaining DNA information without authorization prohibited A person may not, without authorization , willfully obtain individually identifiable DNA information from the statewide DNA data base system or statewide DN A re posi tory. The fact that more information may be gathered with DNA as opposed to fingerprinting should not preclude the State from acquiring the information under the statute.2 Reasonableness dictates wh ether search es are acce ptable und er the Fou rth Amen dment, and this is determined by balanc ing p rivacy interests of the ind ividual with legitimate governmental interests. See Wyoming v. Houghton, 526 U.S. 295, 299-300, 119 S. Ct. 1297, 1300, 143 L. Ed. 2d 408 (1999). The Supreme Court has voiced a general 2 Additional or subsequent use of the DNA sample by law enforcem ent is a legitima te concern, and one the Maryland Legislature has addressed in the statute. See Section 2-512 of the Public Safety Article. Nonetheless, the possibility of additional use, either lawful or unlawfu l, does not m ake an initial law ful seizure u nlawful. -4- preference for requiring either warrants or individualized suspicion to tip the balance in favor of allowin g searc hes. See id. at 309, 119 S. Ct. at 13 05, 143 L. Ed. 2 d 408 ( Steven s, J., dissenting). In certain circumstances, the Supreme Court has relaxed or e liminated this preference. See e.g., Un ited States v. K nights, 534 U.S . 112, 122 S . Ct. 587, 151 L. Ed. 2d 497 (2001); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (199 0); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (197 5); Terry v. O hio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). How ever, this is acceptab le only where the balance of gover nmental a nd private interests makes such a stand ard reas onable . See Knig hts, 534 U.S. at 121 , 122 S. Ct. at 592, 151 L. Ed. 2d 497. Collection of DN A samp les from ce rtain incarcerated perso ns fits square ly within this acce ptab le catego ry. The collection of DNA information for identification purposes, particularly from a cheek swab, constitutes a minimal intrusion upon an individual s Fourth Amendment interests.3 The technique is only slightly invasive and the data is used excl usiv ely for the purpose of iden tification . While the collection of DNA samples through buccal swab testing 3 While buccal swab testing is minimally invasive, even less intrusive methods of collecting DNA samples have been developed. It is now possible to extract DNA by applying a sticky patch to the skin on an individual s forea rm for a mom ent to acquire epidermal cells without puncturing the skin surfac e. B. Qu armby, The Case for National DNA Identific ation C ards, 2003 Duke L. & Tech. Rev. 2, 20 (2003). Using such a technique would further limit the intrusive natu re of DN A collectio n, primarily beca use there w ould be no intrusio n into the hum an body. -5- is an invasion of the body subject to Fourth Amendment limitations,4 the procedure is limited to sampling f rom the m outh, and is n either long, n or painful. See D. Kaye, The Constitution ality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol y 455, 477-78 (2001). This procedure subjects a prisoner to little more inconvenience than routine fingerprinting, and it is only because the sampling occurs inside the mouth, and not on the surface of the body, that the search method itself creates a greater constitutional question than that seen in fingerprinting.5 When a person has been convicted of certain crimes, the State has an interest in the accurate identification of that perso n. This pro position is supported by an exte nsiv e history, as law enforcement has long been involved in the acquisition, collection, classification and preservation of identification records of tho se processed through the criminal tribunals. United States v. Krap f, 285 F.2d 647, 650 (3rd Cir. 1961). Fingerprinting has served as an acceptable mean s of rea ching th ese goa ls for m any years. See id. at 650- 51. In one of the 4 The Supreme Court has long recognized that compelled intrusion into the human body constitutes a search as reco gnized in the F ourth A mend ment. See e.g., Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 616, 109 S. Ct. 1402, 1412-13, 103 L. Ed. 2d 639 (198 9); Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 1616, 84 L. Ed. 2d 662 (1985); Schm erber v . Califor nia, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834, 16 L. Ed. 2d 908 (1966). 5 The Supreme C ourt has repeatedly noted, our soc iety s concern f or the secur ity of one s person, Skinne r v. Railw ay Lab or Exe cutives Assn., 489 U.S. 602, 616, 109 S . Ct. 1402, 1413, 103 L. Ed. 2d 639 (1989), and in Winston v. Lee, the Court n oted that Fo urth Amendment analysis, required a discernin g inquiry into the facts and c ircumstanc es to determine whether intrusion [into the human body is] justifiable. 470 U.S. 753, 760, 105 S. Ct. 1611, 1616, 84 L. Ed. 2d 662 (1 985). -6- first cases dealing with fingerprinting in the prison system, Judge Augustus N. Hand justified that method of identification, stating: Any restraint of the person may be burdensome. But some burdens must be borne for the good of the community. The slight interferenc e with the person involved in finger printing seems to u s one wh ich must be borne in the commo n interest. *** Finger printing seems to be no more than an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal laws. It is known to be a very certain means devised by modern science to reach the des ired end . . . United States v . Kelly, 55 F.2d 67, 68-69 (2nd Cir. 1932) (citations omitted). This same reasoning applies equally to the use of DNA collection today; identifying prisoners through buccal swab testin g falls with in the category of a slight interference necessary for the com mon in terest. The collection of DNA is a more precise method of identification than fingerprinting, and thus better serves the State interest in accurately identifying prisoners. No two individuals, excluding identical twins, share the same genetic makeup, and because an individual s DNA is the same in every nucleated cell in the body, and remains so for life, DNA analysis makes it possible to identify a person to the practical exclusion of all others. See T. Flem ing, An notation , Admissib ility of DNA Identification Evidence, 84 A.L.R . 4th 313, 319-20 (1991). This level o f accurac y has allowed DNA analysis to not on ly help identify thousands of criminal suspects, but also aid in the exoneratio n of man y wrongfu lly -7- accused prisoners. The balance betwee n prisoner privacy rights and governmental interests in identifying prisoners clearly weighs in favor of allowing collection of DNA samples for the purposes of identification. It is clear that the State s interest in identifying prisoners is significant, and as seen in the Maryland DNA Collection Act, the privacy rights violated by buccal swab DNA collection are minimal. Therefore, just as suspicionless fingerprinting of prisone rs is reasonab le under the Fourth Amendment, suspicionless collection of DNA samples from prisoners is also reasonable. -8- In the Circu it Court for M ontgom ery County Case No. 98303 IN THE COURT OF APPEALS OF MARYLAND No. 129 September Term, 2003 ______________________________________ STATE OF MARYLAND v. CHARLES RAINES ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Concurring Opinion by Wilner, J. ______________________________________ Filed: August 26, 2004 I concur in the judg ment. I agree with the majority that the DNA collection law does not constitute an ex post facto law and I agree as well that it doe s not constitu te or necess arily result in an unreason able search or seizure, although th at issue, to me , is a much closer one. As the Court points out, the taking of a swab from app ellee s cheek constituted a search or seizure w ithin the mea ning of the Fourth Amendment and its Maryland counterpa rt, Art. 26 of the Declaration of Rights. The State concedes as much, and properly so. The ultimate question is whether that search/seizure (or any similar collection of a DNA sample pursuant to the DN A collectio n law) is C onstitutionally reasonable, an d that ordina rily involves weighin g the right of p rivacy, to be free from governmental intrusion, against any legitima te need of the G overnm ent to co nduct th e search . In conducting that weighing process, courts have expressed the belief, and given great weight to it, that the intrusion is minimal and that its purpose is not to gather evidence but merely to establish identity. The majority adopts that view in this case. I have some difficulty with those assertions. It is true that the intrusion involved in actually collecting the sample swabb ing the che ek is minim al when c ompared to other methods of harvesting bodily tissues or fluids, and I acknowledge that, ordinarily, the level of intrusion focuses on the method by which the information is obtained. Given the massive a mount o f deeply personal informatio n that is emb odied in the DNA sample, ho wever, it see ms to me th at a proper analysis of the level of in trusion nee ds to take tha t as well into account. A person s entire genetic makeup and history is forcibly seized and maintained in a government file, subject only to the law s direction that it not be improperly used and the prospect of a misdemeanor conviction if a custodian willfully discloses it in an unauthorized manner. No sanction is provided for if the information is non-willfully disclosed in an unauthorized manner, though the harm is essentially the same. The Court seems to believe that taking that consideration into account is illogical. To me, not considering it is, at best, unrealistic, and, at wors t, less than hones t. I doubt as w ell the premis e that the pu rpose for c ollecting this inf ormation is n ot to discover evidence of crimina lity but merely to establish identity. It is true, of course, that the DNA sample w ill be used to establish identity, but the principal purpose of establishing identity will be to provide evidence of criminality, evidence that will allow the police to establish probable cause to co llect precisely the same evidence fo r use in court. The foundation upon which these laws rest, and the invocation of United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed.2d 497 (2001) to sustain them, is that convicted criminals are more likely to have comm itted other crimes and are more likely to commit future crimes than the general population, and that collecting and storing their DNA will materially assist law enforcement agencies in solving crimes and perhaps deter those from whom the samples are taken f rom co mmittin g futur e crime s. In my view , it is, misleading even to suggest, much less hold, that this program is not designed for the predominant purpose of providing evidence of criminality. It clearly is. I prefer to be more honest about the matter. All of the law enforcement and correctional statistics demonstrate that convicted criminals tend to be recidivists and that -2- man y, if not most, people in prison are not there for their first offense that they have committed crimes, often unsolved ones, before com mitting the crime for wh ich they are incarcerated and that they are far more likely to commit future crimes than the general population or any other definable group in the general population. As a group, defined by their own judicially-determined conduct, they do constitute a sp ecial potentia l threat to pub lic safe ty, even while in prison and certainly after their release. As a group, defined by their own judicially-determined conduct, they have a much reduce d expe ctation o f privac y. They are routinely fingerprinted and photographed upon arrest, and those fingerprin ts and photographs are stored and used for much the same purpose as the DNA samples will be used. If any interview following arrest is taped, those tapes may be preserved and used later for voice or ph oto identifica tion. While in prison, they are subject to random searches, and their letters and other communications may be limited or monitor ed; while on probation or parole, they may be req uired to sub mit to urine testing and other intrusive monitoring. If they have com mitte d cer tain k inds of se x crimes, they m ay be required to register with police authorities for years after being released from incarceration or pro bation. If they are not U.S. citizens , they may b e subje ct to sw ift depo rtation. As does Judge Raker in her concurring opinion, I see this really as resting on the same basis as the collection and storage of fing erprints or mu g shot photog raphs. The collection of DNA is much more intrusive because of the information contained in the DNA, but DNA is also a muc h more relia ble identifier and thus better serves the same governmental interest -3- that justifies collecting fingerprints and photographs. That, to me, is where the balance is in terms o f reaso nablen ess. -4- Circuit Co urt for M ontgom ery County Criminal Case # 98303 IN THE COURT OF APPEALS OF MARYLAND No. 129 September Term, 2003 State of Maryland v. Charles Raines Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Bell, C. J., which Harrell and Greene, J J., join Filed: August 26, 2004 In this case, we are asked, by the appellant, the State of Maryland, to determine whether the suppression court err[ed] in ruling that the Maryland D NA C ollection A ct is unconstitutional as violative of the Fou rth Am endm ent. 1 More specifically, the question is whether the Circuit Court for Montgomery County erred when, having found that the Maryland DNA Collection A ct, Maryland Code (1994, 2003 Replacement Volume), § 2-501 et seq. of the Public Safety Article, was in vio lation of the F ourth Amendment to the United States Constitution, it granted the appellee s motion to suppress physical evidence in a first degree rape and robbery case. The majority concludes that it did. It holds that the Maryland DNA Collection Act . . . is constitutional and does not violate the Fourth Amendment or the Ex Post Facto Clauses of the U nited S tates and Marylan d Con stitutions . State of Maryland v. Charles Raines, ____ Md. ____, ____, ____ A.2d ____, ____ (2004) [slip op. a t 3]. It reas ons, in su mmary, [t]he[ Maryland D NA C ollection] Act s prov isions allow ing the State to 1 Responding to the State of Maryland s petition for certiorari raising this question, the appellee, Charles Raines, filed a Conditional Cross Petition for Certiorari, presenting the question, Did the suppression court err in ruling that the Maryland DNA collection statu te was not a penal statute in violation of the ex post facto clauses of the federa l and state constitutions, as applied to the appellee? Although the majority reaches this question, affirming the trial court s ruling that the statute is not an ex post facto law, I do not, and need not, given my resolution of the question that the State raises. -1- obtain the DNA profile of a certain group of convicted persons to store in a DNA data base is reasonable, because the minimal physical intrusion on the inmate, a person with a diminished expectation of privacy, is outweighed by the legitimate governmen tal interest in identifying pe rsons invo lved with crimes , includin g vindi cating th ose fals ely conv icted. Id. at __, __ A.2d a t __. [slip op. at 44 ]. In arriving at this holding, the majority accepts the State s argument that the DNA collection act is consiste nt with the Fourth amendm ent s totality of the c ircumstanc es test, which assesses the reasonableness of a Fourth Amendment intrusion by balancing the degree of the government s intrusion upon the individual s expectation of privacy against the promotion of the government s legitimate interest. Id. at ___, ___ A. 2d at __ _ [slip op. at 14]. Like the State, the majority characterizes the government intrusion in this case, the search - the buccal swab - as minimal, as appellee, an incarcerated felon, had a diminished expectation of privacy, id. at ___, ___ A. 2d at ___ [slip op. at 14], and announces the legitimate governm ent in teres t, wh ich it char acterizes as p rope rly identifying individuals and protecting the public, as having been served. Id. The majority relies on the reasoning of the Supreme Court in United S tates v. Knig hts, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed . 2d 497 (2001), the reasonin g of the F ourth Circu it -2- Court of Appeals in Jones v. Murray, 962 F. 2d 302 (19 92), 2 the fact that the overwhelming number of courts that have addressed the issue has upheld the constitutionality of DNA collection statutes and its independ ent assessm ent of the reasonableness of DNA collection searches. Interestingly, it purp orts not to address the State s alternative argument, that the statute passes muster under the special needs exception, as collection of DNA from convicted offenders and storing their DNA profiles serve[] special law enforcement interests. Id. I disagree an d, guided b y the traditional ten ets of Fou rth Ame ndment 3 jurisprudence, I dissen t. 2 Jones v. Murray, 962 F. 2d 302 (4 th Cir. 1992) predates City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) and Ferguson v. City of Charleston, 532 U. S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), both of which, as we will see, reaffirmed the individualized suspicion requirement as a prerequisite for most searches and sei zures. Indeed , Edmond, made a point of distinguishing Michigan Dept. of State Police v. Sitz , 496 U .S. 444 , 110 S. Ct. 2481, 110 L. E d.2d 412 (1990), a so briety checkpoint case, the existence of which the Jones court foun d quite signif icant. Acknowledging its checkpoint cases, including Sitz (involving a sobriety checkpoint aimed at removing drunk drivers from the road) and the suggestion in Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 59 L. Ed.2d 660 (1979) that a roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible, the Court nevertheless was em phatic: In n one of the se cases ... did w e indicate ap proval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wron gdoing . City of Indianapolis v. Edmond, 531 U.S. at 37-38, 121 S. Ct. at 451-52, 148 L. Ed. 2d at 134 (20 00). 3 The Fourth Amendm ent to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, aga inst unreaso nable searches shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to b e searched , and the pe rsons or thin gs to be seized. -3- From the earliest days of search and seizure jurispruden ce, it has been clear that, in its purest form, the Fourth Amendment mandates that no search of place, property or person or seizure, should be effectuated and no evidence resulting from such a search and seizure sho uld be considered unless there has been a sufficient showing of a particularized and focused suspicion, amounting to probable cause, that the place or individual to be searched was involved in crimin al activity. Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 2041, 150 L. Ed. 2d 94 , 100 (200 1); See Generally, Wayne LaFave, Search And Seizure: A Treatise On The Fourth Amendment, 2 SEARCH & S EIZURE § 3.1(a) . From i ts incep tion, the Fourth Amendment was the colonists' response to the unlimited intrusions by the British government into their privacy in the 1700s. Using a Writ of Assistance, British customs officials w ere able to enter any home and search the premises for eviden ce of custo ms violation s. These of ficials did not need to have particularized suspicions about any person or place before searching, nor were they required to justify their actions to any authority after the search. The Framers found these unchecked governmental actions by the British unacceptable. To ensure that their new government would not have this type of arbitrary power, and to protect against the recurrence of these unchecked governmental actions, the Framers included the Fourth Amendment in the Bill of Rights, granting the right to be free from unreason able searches and seizure s. See Denise Robinson, Kaup p v. Texas: Breathing Life into the Fourth Amendment, 94 J. C RIM . L. & C RIMINOLOGY 761 (Spring 200 4). This protection was, and continues to be, greatest with respect to the search of a private home. United States v. Unites States Dist. Ct. for Eastern Dist. of Mich., 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972) ( [P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed ) [A]t the very core of -4- Fourth Amendment, stands the right of a [person] to retreat into [her] own home and there be free from unreasonable governmental intrusion. Kyllo v. United States, 533 U.S. at 31, 121 S. Ct. at 2041, 150 L. Ed. 2d at 100, quoting Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 683, 5 L. Ed. 2d 734, 739 (1961). Undergirding, and forming th e foundation for, this jealously guarded and rigid protection of private homes from governmental invasions without probable cause was the bedrock principle of the common law that there exists an overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic. Oliver v. U.S., 466 U.S. 170, 178, 104 S. Ct. 1735, 1741, 80 L. Ed. 2d 214, 224 (1984) quoting Payton v. New Y ork, 445 U.S. 573, 601, 100 S. Ct. 137 1, 1387, 63 L. Ed . 2d 639, 660 (198 0). A citizen s priva cy interests are no t limited to his or her home, how ever. Rather, those interests extend to his or her person. As the Supreme Court observed in Katz v. United States, the Fourth Amendment protects people, not places. What a person kn owingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protecti on. See Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 42 7, 17 L. Ed . 2d 312 [ , 315 (196 6)]; United States v. Lee, 274 U.S. 559, 563, 47 S. Ct. 746, 748, 71 L. Ed. 1202 [, 1204 (1927)]. But what he seeks to preserve as private, even in an area accessible to the public, may be constitu tionally pro tected. 389 U.S. 34 7, 351, 8 8 S. Ct. 5 07, 511 , 19 L. E d.2d 57 6, 582 ( 1967) . See Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 898-99 (1968), in which, quoting Union Pac. R. Co. v. Botsford , 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, 737 (1891 ), the Suprem e Court he ld that [n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own -5- person, free from all restraint or interference of others, unless by clear and unquestio nable authority of law. To be sure, the Court, in some cases, has reformulated the probable cause standa rd, see Camara v. Municipal Co urt, 387 U.S . 523, 539, 8 7 S. Ct. 1727, 1736, 18 L. Ed. 2d 930, 941 (1967) (holding that [i]f a valid public interest justifies the intrusion contemplated , then there is probable cause to issue a suitably restricted search warrant. ) and See v. City of Seattle, 387 U.S. 541 , 545, 87 S . Ct. 1737, 174 0, 18 L. Ed. 2d 943, 947 (196 7) ( The agen cy's particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved ), and has relaxed the probable cause standard for se arches , 4 4 in other s, see, e.g. Terry v. Ohio , 392 U. S . 1, 30, 88 S. C t. I note that the Supreme C ourt, in the border patrol checkpoint cases, has held that stops, hence seizures, were reasonable without the articulation of reasonable suspicion, when the stops were evenly enforced f or every autom obile that pas sed throug h the chec kpoint, were minimally intrusive and there was a compelling need for those stops to stem the overwhelming tide of e ntry of illeg al aliens into the c ountry. United S tates v. Martin ezFuerte, 428 U . S. 543 , 562, 96 S. Ct. 3074, 3085, 49 L. Ed. 2d 1116, 1131-33 (1976) (recognizing that traffic-checking [perm anent checkpoin ts] program in the in terior is necessary because the flow o f illegal aliens c annot be c ontrolled ef fectively at the border, and holding that, although checkpoint stops are seizures, as contemplated under the F ourth Amen dment, because they involve only a brief detention, during which a question or two must be answered and documents produced, and neither the veh icle nor its occ upants is searched, and visua l inspection o f the vehic le is limited to what can be seen without a search, the stops could be made in the absence of reasonab le suspicion). S imilarly, stops at sob riety checkpoints have been upheld in the absence of particularized and focused suspicion. Michigan Dept. of S tate Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 2485-86, 110 L. Ed.2d 412, 420-21 (1990) (holding tha t the seizure of moto rists who w ere stopped at a sobriety checkpoint at which all vehicles were stopped, was reasonable without (contin ued...) -6- 1868, 1884, 20 L. Ed. 2d 889, 911 (1968) (holding that a limited search of the outer clothing of a suspect for wea pons is reasonable where the officer has a reasonable articulable basis for believing that the suspect may be armed and presently dange rous); Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3480-3481, 77 L. Ed.2d 1201, 1220 (1983) (holding that search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonab le belief based on specific and articulable facts which, taken together with the rational inferences from those facts, re asonably w arrant the of ficers in believing th at the suspe ct is dangerous and the suspect may gain immediate control of weapo ns ); Maryland v . Buie, 494 U. S. 325, 334, 110 S. Ct. 1093, 1098, 108 L. Ed. 2d 276, 286 (1990) (holding that as an incident to arrest the officers could, as a precautionary matter and without probable cause or reasonab le suspicion [ that person s were ac tually in the areas], look in closets and other spaces immedia tely adjoining the place of ar rest from w hich an attac k could be immedia tely launched ); United S tates v. Knig hts, 534 U.S . 112, 121, 1 22 S. Ct. 587, 592, 151 L. Ed. 2d 497, 506-507 (2001) (holding that 4 [when an officer has reasonable su spicion that a (...continued) individualized suspicion in light of the magnitude of the drunk-driving problem and the determination of law enforcement officials that such checkpoints were necessa ry to apprehend such individ uals be fore tra gedy strik es). But see United States v. Brignoni-Ponce, 422 U.S. 87 3, 884, 9 5 S. Ct. 2 574, 2578, 45 L. Ed. 2d 607, 618 (1975) (holding that although roving patrols in which officers stop and question motorists about their resident status may be conducted without probable cause, such stops must, at least, show that the stopping officer is aware of specific articulable facts, together with rational inferences from those facts, that reaso nably warrant suspicion that a vehicle contains illegal aliens who may be illega lly in the co untry. ). -7- probationer[, who is already] subject to a search condition [pursuant to his probation agreem ent,] is engaged in criminal ac tivity, [then] there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's . . . privacy interests is reasonable. ). In still others, the Court has dispensed with the requirement for particularized and focused suspicion as a prerequisite for search.5 Board of Educ ation v. Earls, 536 U.S. 822, 829-30, 122 S. Ct. 2559, 2564-65, 153 L. Ed. 2d 735, 744 (2002); Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 115 S. Ct. 238 6, 132 L. Ed. 2d 5 64 (1995); Natl.Treasury Employees Union v. Von Raab, 489 U.S. 656, 666, 109 S. Ct. 1384, 1391, 103 L. Ed. 2d 685, 703 (1989 ); Skinner v. Railway Labor Executives Ass n. 489 U. S, 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); New Jersey v. T.L.O., 105 S. Ct. 733, 83 L . Ed. 2d 720 (198 5); Hudson v. Palmer, 468 U . S. 517 , 104 S . Ct. 319 4, 82 L . Ed. 2d 393 (1 984). The cases in this latter category reflect the permissible exceptions to the Fourth 5 Although not involvin g a search, a t best only a seizure, the Suprem e Court rec ently addressed the special needs doctrine in Illinois v. Lister, ___ U. S. ___, 124 S. Ct. 885, 157 L. Ed.2d 843 (2004). The Court upheld the constitutionality of a roadblock checkpoint, which police s et up to o btain inf ormatio n abou t an earlie r hit-and -run ac cident. Id. at ___, 124 S. Ct. at 891, 157 L. Ed. 2d at 853. Each car that approached the roadblock was stopped for 10-15 seconds, the passengers were provided with a flyer with information about the hitand-run and asked if they knew anything about it. As the respondent approached the officers, he swerved his van, almost hitting an officer. He was arrested after the officer smelled alcohol on his breath and conducted a sobriety test. Id. at ___, 124 S. Ct. at 888, 157 L. Ed. 2d at 849. The resp ondent ch allenged h is arrest on the b asis that the ch eckpoint v iolated his Fourth Amen dment righ ts against illegal search and seizure. The Supreme Court disagreed, holding that the stop s primary law enfo rcement purpose w as not to determine w hether a vehicle s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. Id. at ___, 124 S. Ct. at 889, 157 L. Ed. 2d at 850. -8- Amendment requirements that the Sup reme Co urt has reco gnized, tho se being s pecial interests or needs searches,6 undertaken to further some important and legitimate societal interest, other than th e general in terest in law en forcem ent. Reflective of such interests are random prison searches designe d to ensure the secu rity of pen al institutio ns, see Hudson, at 529, 10 4 S. Ct. at 3202, 82 L. Ed. 2d at 404-405,7 random drug and alcohol testin g in occupations directly impacting the public safe ty, ensuring pub lic safety by regulatin g certain occupatio ns,8 Von Raab, 489 U.S. at 679, 109 S. Ct. at 1398, 103 L. Ed. 2d at 710-711 6 Camara v. M unicipal Court, 387 U.S. 523 , 538, 87 S . Ct. 1727, 1736, 18 L. Ed. 2d 930, 941 (1967) and See v. City of Seattle, supra, 387 U. S. at 545, 87 S. Ct. at 1740, 18 L. Ed. 2d at 943 may, in on e sense , fall into th is catego ry, as well. In Camara, as the Cou rt in United States v. Martinez-Fuerte, 428 U. S. 543, 561, 96 S. Ct. 3074, 3084, 49 l. Ed. 2d 1116, 1130 (1976), explained, the Court required an area warrant to support the reasonableness of inspecting private residences within a particular area for building code violations, but recognized that specific knowledge of the condition of the particular dwelling was not required to enter any given residence. ... In so holding, the Court examined the government interests advanced to justify such routine intrusions upon the constitutiona lly protected in terests of the p rivate citizen ... and conclude d that under the circumstances the government interests outweighed those of the private citizen. (quoting Camara, 387 U .S. at 538 , 87 S. C t. at 1727 , 18 L. E d. 2d at 9 41.) 7 The Court, in Hudson v. Palmer, 468 U . S. 517 , 529, 104 S. Ct. 3194, 3202, 82 L. Ed. 2d 393, 405 (1984), explained why no particularized suspicion was required for such searches: prison searches [that] must be conducted only . . . when suspicion is directed at a particular inmate is to ignore the realities of prison operation. Random searches of inmates, individually or c ollectively, and the ir cells and lockers are valid and necessary to ensure the security of the institution and the safety of inmates and all others within its boundaries. This type of search allows prison officers flexibility and prevents inmates from anticipating, and thereby thwarting, a search for contraband." 8 In Chandler v. Miller, 520 U.S. 305, 318-322, 117 S. Ct. 1295, 1303-1305, 137 L. Ed. 2d 513, 525-28 (1997), the Court declined to hold that a Georgia statute that mandated that candidates for elected office pass a drug test asserted a special need akin to the drug testing for the employees in Skinner, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed . 2d 639 (1989 ), (contin ued...) -9- (holding reasonable a U.S. Customs regulation re quiring urin e testing of a ll employees who applied for a promotion that required the carrying of a gun and involvement with drug interdiction, given that the government's compelling interest in safeguarding borders and public safety outweighed diminished privacy expectation ); Skinner, 489 U.S. at 634, 109 S. Ct. at 1422, 103 L. Ed. 2d at 6701-71 (holding railroad regulation requiring random drug testing without particularized suspic ion to be rea sonable in lig ht of conn ection to pu blic safety); dr ug testin g of stu dents, Earls, 536 U.S. at 824, 122 S. Ct. at 2559, 153 L. Ed. 2d at 744 (urine testing of stud ents engaged in extracurric ular activities to p revent hea lth and safe ty risks of drug use); Vernonia School Dist. 47J, 515 U.S. at 661-64, 115 S. Ct. at 2394-2396, 132 L. Ed. 2d at 579-82 (holding that school district s requirement that all students who wished to participate in interscholastic sports submit to random urinalysis testing was reasonable in light of the ov erwhelming interest in en suring that youth are drug free). These changes do not indicate, however, that the Court has abandoned the requirement that most searches be justified by some level of particularized or focused suspicion or that suspicionless searches are the rule whenever th e intrusion o ccasioned by the search is minima l and justified by a law enforcement purpose or purposes. On the contrary, two recent cases mak e clear the S upreme C ourt s position with respect to suspicionless searches (...continued) noting that the railroad employees directly affected public safety, but that, because it was unlikely that the statute was sufficiently tailored to accomplish the goal of having drug-free political representatives, it amounted to a symbolic statute which was an insufficient government interest when weighed against privacy rights. -10- for gen eral crim inal law enforc emen t purpo ses. In City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 4 47, 148 L. Ed. 2d 333 (2000), the Court considered the constitutionality of an automobile checkpoint program set up to discover and interdict illegal drugs. At the checkpoint, officers stopped a predetermined number of vehicles, and, with each stop, one officer approached the vehicle, explained that it was being stopped at a drug checkpoint and asked for license and registration. Id. at 35, 121 S. Ct. at 450, 14 8 L. Ed . 2d at 33 9. While the officer looked for signs of impairment and conducted an open view examination, a narcotics-sniffing dog was walked around the outs ide of e ach ca r. Id. at 35, 121 S. Ct. at 450-51, 148 L. Ed. 2d at 339. Although acknow ledging tha t the sniff b y a dog that sim ply walks aro und a car is much less intrusive than a typical search, id. at 40, 121 S. Ct. at 453, 148 L. Ed. 2d at 343, quoting United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed.2d 110, 121 (1983), after noting the usual ru le - [a] searc h or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing, id. at 37, 121 S. Ct. at 451, 148 L. Ed. 2d at 340 (citing Chandler v. Miller, 520 U.S. 305, 308, 117 S. Ct. 1295, ____, 137 L. Ed.2d 513, ___ (1997)) - and reviewing the only limited circumstances in which the usual rule does not apply, 9 id., the Court nevertheless held that the seizure in that case was not carried out 9 Those exceptions were delineated by the Court, as follows: While such suspicion is not an "irreducible" component of reasonableness, Martinez -Fuerte, 428 U.S. a t 561, 96 S . Ct. 3074, w e have rec ognized o nly limited circumstances in which the usual rule does not apply. For example, we have upheld certain regimes of suspicionless searches w here the program (contin ued...) -11- pursuant to a legitimate special governmental need, but, rather, served as a mask for detecting evidence of criminal wrongdoing. The Court explained: We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure 9 (...continued) was designed to serve "special needs, beyond the normal need for law enforcement." See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995) (random drug testing of studentathletes); Treasury Employees v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L.Ed.2d 685 (1989) (drug tests for United States Customs Service employees seeking tran sfer or prom otion to certain positions); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (198 9) (drug an d alcohol te sts for railwa y employees inv olved in train accidents or found to be in violation of particular safety regulations). We have also allowed searches for certain administrative purposes without particularized suspicion of miscondu ct, provided that those searche s are appropriate ly limited. See, e.g., New York v. Burger, 482 U.S. 691, 702-704, 107 S. Ct. 2636, 96 L.Ed.2d 601 (1987) (warrantless administrative inspection of premises of "closely regulated" business); Michigan v. Tyler, 436 U.S. 499, 507-509, 511-512, 98 S. Ct. 1942, 56 L.Ed.2d 486 (1978) (administrative inspection of fire-damaged premises to determine cause of blaze); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534-539, 87 S. Ct. 1727, 18 L. Ed.2d 930 (1967) (administrative inspection to ensure compliance w ith city housing code). We have also upheld brief, susp icionless seizu res of mo torists at a fixed Border Patrol checkpoint designed to intercep t illegal alie ns, MartinezFuerte, supra, and at a sob riety checkpo int aimed at r emoving drunk drivers from the road, Michigan Dept. of S tate Police v. S itz, 496 U.S . 444, 110 S . Ct. 2481, 110 L. Ed. 2d 412 (199 0). In addition , in Delaware v. Prouse, 440 U.S. 648, 663, 99 S . Ct. 1391, 59 L. Ed . 2d 660 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licen ses and ve hicle registrations would be permissible. In none of these cases, however, did we indicate approva l of a check point prog ram wh ose prima ry purpose w as to detect e videnc e of ord inary crim inal wr ongdo ing. City of Indianapolis v. Edmond, 531 U.S. 32, 37-38, 121 S. Ct. 447, 451-52, 148 L. Ed. 2d 333, ___ (2000 ). -12- must be ac com panied b y some measure of individualized suspicion. We suggested in Prouse that we would not credit the general interest in crime control as justification for a regime of suspicionless stops. Consisten t with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contraven es the Fou rth Ame ndme nt. Id. at 41-4 2, 121 S . Ct. at 45 4, 148 L . Ed. at 3 43. The Court rejected an argument that the checkpoint at issue in Edmond had the same ultimate purpose as the roadblocks previously upheld, to arrest those suspected of committing crimes. On that point, the C ourt explain ed: If we we re to rest the ca se at this high le vel of gen erality, there wou ld be little check on the ability of the authorities to construct roadblocks for almost any conceiva ble law en forcem ent pur pose. Without drawing the line at roadblocks designed primarily to serve the gene ral interest in crim e control, the F ourth Amendment would do little to prevent such intrusions from becoming a routine part of A merica n life. Id. at 42, 121 S. Ct at 454, 148 L. Ed. 2d at 344. Finally, the Court was clear, the gravity of the threat alone may not define the means that may be used to pursue a given purpose. Rath er, it asse rted, in determining whether individualized suspicion is required, we must consider the nature of th e interests threa tened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends. Id. at 42-43, 121 S. Ct. at 454-55. 148 L. Ed. 2d at 344. This approach and rationale was reiterated and reconfirmed in Ferguson v. Ci ty of -13- Charleston, 532 U. S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001). In that case, the Cou rt held unconstitutional a hospital policy that tested the urine of pregnant women for illegal drugs, the positive re sults of wh ich were p rovided to p rosecutors f or use in criminal prosecutions. Id. at 84-86, 121 S. Ct at 1292-93, 149 L. Ed. 2d at 220-221. In so holding, the Court noted that the searches of the w omen inv olved w ere based n either on p robable cause to believe that they were using cocaine [nor] even the basis for a reasonable suspicion of such use [of cocaine]. Id. at 76, 121 S. Ct. at 1287-88, 149 L . Ed. 2d at 215. The C ourt declined to accept the City s argumen t that protecting of the mother and child served a beneficent purpose, when it . . . [was] clear from the record that a n initial and continuing focus of the policy was on the arrest and prosec ution. Id. at 82, 121 S. Ct. at 1290, 149 L. Ed. 2d at 219 (citation omitted). 10 To that en d, the Cou rt reasoned that: [w]hile the ultimate goal of the program may well have been to get the women in question into substance abuse treatm ent and of f drugs, the im mediate objective of the searches was to generate evidence for law enforcement purposes, in order to reach that goal. The threat of law enforcement may ultimately have been intended as a means to an end, but the direct and primary purpose of [the] policy was to ensure the use of those means. In our opinion this distinction is critical. Because law enforcement involvement always serves some broader social purpose or objective, under re sponden ts view, virtua lly any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search sole ly in terms of its ultimate rather than 10 The Co urt noted tha t [n]ow here . . . does the docume nt discuss dif ferent courses of medical treatment for either mother or infant, aside from treatme nt for the mother s addiction . Ferguson v. City of Charleston, 532 U. S. 67, 82, 121 S. Ct. 1281, 1291, 149 L. Ed. 2d 205, 219 (2001). -14- immedia te purpose. Such an approach is inco nsistent with the Fourth Ame ndme nt. Id. at 82-84, 121 S. Ct. at 1291-92, 149 L. Ed. 2d at 219-20. The majority disclaims any reliance on special needs cases, maintaining that such reliance is unne cessary. Moreo ver, it does no t contend th at there is particu lar or articulable reason to suspect the respondent or, indeed, any of the convicted felons subject to the DNA collection statute, of engaging in any wrongdoing other than that for which he has, or they have, been convicted. A nd the statute does not c ontain, or m ake, finding s that wou ld substitute for such individualized and focused suspicion. Rather, the majority relies on a kind of, as the respondent characterizes it, free floating totality of the circumstances balancing test of the sort employed in the special needs line of case s to sustain th e constitution ality of the DN A collectio n act. The b alance that it posits as applicable to the determination of the reasonableness of the subject search pits the diminished expectation of privacy of a convicted felon against the legitimate government interest of identifying persons and more spec ifica lly, the majority submits, in establishing a more accurate method to identify recidivists for s everal purp oses. ___ Md. at __ _, ___ A . 2d at ____ [slip op. at 17]. Because, as we have seen, the majority has determined that the intrusion occasioned by the search is minimal - taking a buccal swab of the cheek takes only a few secon ds, it reason s - the m ajority con cludes that the b alance favors the gov ernme nt intere st. The balance is free floating because there is no context to the expectation of privacy prong; apparently, there are no limits to it. Furthermore, the purpose posited for why the -15- exploitation of that diminished expectation of privacy is proper bears no relation to the respondent s status as a convicted felon or to the penal institution s ability safely and effectively to house him. Authority for this balancing test, the majority finds in Knights, supra. Knights does not stand for the propo sition for w hich the m ajority cites it. In that case, Knights, the respon dent, was on probation for a drug offense. As a condition of probation, Knights agreed to a provision in his release contract which stated that he subm it[s] his . . . person, proper ty, place of residen ce, veh icle, 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. 534 U. S. at 114, 122 S. Ct. at 588, 151 L. Ed. 2d at 502. Shortly after he was placed on probation, Knights and an associate, Simoneau, were linked to several arsons involving Pacific G as and Ele ctric (PG& E) prope rty. Having su rveilled Kn ights and his co-conspirator, during the course of which he observed Knights in possession of what appeared to be several pipe bombs and observed some suspicious objects, including a Molotov cocktail, two brass padlocks reported stolen from the PG&E property that had been set on fire, and a gasoline can, in Simo neau s truck wh ile it was park ed outside o f Knigh ts s apartme nt, id. at 115, 122 S. Ct. at 589, 151 L. Ed. 2d a t 502-503 , and awa re of the sea rch provisio n in Knights s probation order, a detective searched Knights s apartment, uncovering substantial evidence that Knights had been involved in setting the fires.11 11 Those item s included, a detonatio n cord, am munition, liqu id chemic als, bolt cutters (contin ued...) -16- Knights was arrested and subsequently indicted for conspiracy to commit arson, possession of an unregistered destructive device and for being a felon in possession of ammunition. In his pre-trial motion to suppress the eviden ce seized in the search, K nights argued that the search was an illegal one. Id. at 116, 122 S. Ct. at 590, 151 L. Ed. 2d at 503. Although the United States District Court for the Northern District of California held that the detective had reasonable suspicion that Knights was involved with incendiary devices, it nevertheless granted the motion to suppress on the ground that the search was for inv estig atory rather th at prob ationary p urpose s. Id. The Nin th Circuit C ourt of A ppeals affirmed, relying on its earlier decision in United States v. Ooley, 116 F.3d 370 (9th C ir. 1997), in which it h eld that a search condition in a probation order must be seen as limited to probation searches, and must stop short of investigation searches. Id. This holding being at odds with California precedent, which held that the probation condition at issue drew no distinction between probationary searches and investigatory searches, the United States Supreme Court granted certiorari to assess the constitutionality of searches made pursuant to this common California probation condition. Id. After establishing th e correct mode of an alysis, namely, to bala nce the priv acy interests of the respondent with legitimate government interests, the Court acknowledged that (...continued) telephone pole-climbing spurs, drug paraphernalia, and a brass padlock stamped PG&E . United States v. K nights, 534 U. S. 112, 115, 122 S. Ct. 587, 589, 151 L. Ed. 2d 497, 503 (2001 ). -17- Knights s status as a probationer was integral to both prongs of the analysis. First, the Court held that probationers have a lower expectation of privacy by virtue of the ir involvem ent with the criminal s ystem. On tha t point, the Co urt stated: Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offen der after ve rdict, finding or plea of guilty. Griffin[v . Wiscons in, 483 U.S. 868,] 874, 107 S. Ct. 3164 (quoting G. Killinger, H. Kerper, & P. Cromw ell, Probation and Parole in the Criminal Justice System 14 (1976)). Probation is one point . . . on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service[.] 483 U.S. at 874, 107 S. Ct. 3164. Inherent in the very nature of probation is that probatio ners do n ot enjoy the ab solute liberty to which e very citizen is entitled. . . . Just as other punishments for criminal convictions curtail an offen der s fr eedom s, a court granting probation may impose re asonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. Knights, 534 U.S. at 119, 122 S. Ct. at 591, 151 L. E d. 2d at 505. (some citations o mitted). The Court took notice that, in that case, the petitioner=s expectation of privacy was significantly diminished because [t]he probation order clearly expressed the search condition and Knights was unambiguously informed of it, id. at 119, 122 S. Ct. at 592, 151 L. Ed. 2d at 505; he w as on notice that his probation agreement included a condition allowing law enforc emen t officia ls to sear ch his p remise s witho ut notice . With respect to the government interest side of the balance, the Court observed 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. Id. at 121, 122 S. Ct. at 592, 151 L. Ed. 2d at 506. This is so, it pointed out, because it must be remembered that the very assumption of the -18- institution of probation is that the probationer is more likely tha n the ordina ry citizen to violate the law. Id. at 120, 122 S. Ct. at 592, 151 L. Ed. 2d at 506, quoting Griffin v. Wiscon sin, 483 U.S. 868, 880, 107 S. Ct. 3164, 3172, 97 L. Ed. 2d 709, 721 (1987). Given the lowered expectation of privacy, the Court held that, rather than the usual requirement of proba ble cause, all th at was ne cessary for the search in tha t case was reasonab le suspicio n. Id. at 121, 122 S. Ct. at 592-93, 151 L. Ed. 2d at 50 7. M ore p artic ularly, the Court explained: We hold that the balance of these considerations requires no more than reasonab le suspicion to conduct a search of this probationer s house. The degree of individualized suspicion required of a search is a determination of which there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual s privacy intere sts reaso nable. See United States v. Cortez, 449 U .S. 411 , 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981) (individualiz ed suspicio n deals w ith probabilities ). Although the Fourth Amen dment ord inarily requires the degree of proba bility embodied in the term probable cause, a lesser degree satisfies the Constitution when the balance of governme ntal and private interests makes su ch a standard reasonable. . . . Those interests warrant a lesser than probable-cause standard here. When an officer has reasonable suspicion that the 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 signific antly dim inished privacy in terests is r easona ble. Id. at 121, 122 S. Ct. at 592 -93, 151 L. Ed. 2d at 506-507 (som e citations omitted). Having so held, despite the fact that, by its terms, the probation condition permitted a suspicionless search, the Court did not decide whether the probation condition so diminished, or completely eliminated Kn ights s reasonable expec tation of privacy (or constituted consen t. . . ) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reason ablene ss requ iremen t of the F ourth A mend ment. -19- Id. at 120 n . 6, 122 S . Ct. at 59 2 n. 6, 15 1 L. Ed . 2d at 50 5 n. 6. As indicated, the majority s reasonableness analysis relies on the reasoning in Knights . It finds particu larly instructive the C ourt s recog nition that pro bationers, in c ertain circumstances, enjoy a lesser ex pectation o f privacy. Bu ilding on tha t premise, it reaches the conclusion that prisoners w ho are incarcerated, such as the respondent in this case, enjoy even a more diminished expectation of privacy - so much so, in fact, that the usual requirement of an individualized and articulab le basis for a search of such persons, consistent with the Fourth Amendment, does not apply. In this regard, the majority places great emphas is on the fact that the search in Knights was of a home, rather than, as here, a buccal swab of the respondent s cheek. Thus, it reminds us that Knights dealt with an intrusion that has long been held to be the chief evil against which the wording of the Fourth Amendment is directed - the search of a private home. ___ Md. at ___, ___ A.2d at ___ [slip op. at 1617] (quoting United States v. Un ited States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 3 2 L. Ed . 2d 752 , 764 (1 972). The majority then contrasts the level of expectation of privacy Knights could expect to enjoy in his own home and the much lower expectation of privacy enjoyed by incarcerated inmates, concluding that, in the context of prison, the expectation of privacy is so low, when weighed against the minimal intrusion of a buccal swab (which I shall address later), that it is negligible: Here, appellee was not on probation living in his own home - he was incarcerated. The government intrusion was not an unauthorized entry into a private home, but a buccal swab of the cheek lasting a few seconds. ___ M d. at ___, __ _ A.2d a t ___ (slip -20- op. at 17). The majority s analysis misses the point and is significantly flawed. Knights is no t a suspicionless searc h cas e. On the contrary, as the Court took pains to point out, the detective had a reasonable suspicion that the probationer, Knights, was engaged in wrong -doing an d it was that s uspicion that prompted the surveillance and ultimately the search o f the apartm ent. The issu e that had to be resolved was w hether a probation provision that was a condition of probation, permitting a search of the proba tioner s home with or without a warrant and with or without cause, provided sufficient indicia of reasonableness to render the warrantless search constitu tional. Stated differently, the issue presented to the Court for resolution involved determining the standard that would a pply to justify the warrantless search of the home of a probationer, a condition of whose probation permitted such a sea rch. That is the way the Suprem e Court analyzed the case and decided it, concluding, after balancing the interests of the respondent and the State, that the search was reasonable. Inexplicably, the majority fails to do so and, instead, analyzes the case as if the Supreme C ourt had decided the question that that Court expressly did not decide. See 534 U . S. at 120 n. 6, 122 S. Ct. at 5 92 n. 6, 1 51 L. E d. 2d at 5 05 n. 6. Sign ifica ntly, in making the balance in Knights , the Supreme Court provided guidance as to the relationship that must exist between the two sides of the balance. It is to be recalled that the Court indicated that the respondent s status as a probationer informed both sides of the balance, thus providing a context for the expectation of privacy; it must be assessed in light of the competing interest of the government. The Knights Court analyzed the relationship it identified between the expectation of privacy of a probationer and the -21- government interest in app rehending criminals, - that relationship is especially significant when a condition of proba tion is that the p robationer h imself obe y all laws and n ot comm it crimina l violatio ns - and struck th e balan ce in fa vor of the gov ernme nt. In this case, the m ajority does not a ddress w hether there is any relationship between the expectation of privacy of the respondent and the State interest sought to be served by the DNA collection, and, if so, what that relationship is and how it impacts each of the interests. Certainl y, there is no legitimate penological interest, Turner v . Safely, 482 U. S. at 89, 107 S. Ct. a t 226 1, 96 L. Ed. 2d at 79 , serv ed by the collection of DNA from convicted and incarcerated felons, for th e benefit o f which th ose felons privacy expectations must be subordinated. The collec tion of D NA sim ply is not necessary in the interest of the effective prison administration or internal security. See Bell v. Wolfish, 441 U. S. at 546-547, 99 S. Ct. at 1878, 60 L. Ed. 2d at 473. Even if the reason for taking the buccal sw ab were identification, as the majority urges, a nd not to o btain evide nce and, th us, it is not a part of the State s general interest in detecting crime, it still would not provide justification for the search, since even that purpose would not provide justification for the search in the prison context. It is not surprising, therefore, that the majority does not pursue the special needs rationale. But I do not believe that the search passes constitutional m uster even if the majority s totality of the circumstances balancing test analysis were sound. It is simply wrong to say that the interest being served by the search is identification. That is belied, in fact, by the statute itself. Maryland Code (2003) § 2-505 of the Public Safety Article makes crystal clear -22- that the purpose of the DNA collection statute is to database DNA for use in solving crimes, those earlier committed as well as those that may be committed in the future. It provides: § 2-505. Purpose of collecting and testing DNA samples. (a) In general. To the extent fiscal resources are available, DNA samples shall be collected and tested: (1) to analyze and type the genetic markers contained in or derived from the DNA samples; (2) as part of an official investigation into a crime; (3) to help identify human remains; (4) to help identify missing individuals; and (5) for research and administrative purposes, including: (i) development of a population data base after personal identifying information is removed; (ii) support of identification research and protocol development of forensic DNA analysis methods; and (iii) quality control. (b) Limitations on DNA records. (1) Only DNA records tha t directly relate to the identification of individuals shall be collected and stored. (2) DNA records m ay not be used for any purp oses other than those specifi ed in this subtitle. In addition, the State does not deny, and in fact admits, that the imm ediate and primary purpose of the act is the pub lic interest in pro secuting crim es more ac curately and it maintains that the act assist[s] more eff ectively in investig ations of crim es likely to involve DNA than some other DNA laws, because the Maryland law covers a broader range of offen ders. Moreover, the cando r of Judge s Raker a nd Wilne r on this poin t, expressed in their concu rring op inions in this case , see ___ Md. at ___, ___ , ___ A. 2d at ___ , ___ (Raker, J. and Wilner, J., concurring) [Raker J., slip op. at 1-2, Wilner, J., slip op. at 2], is refreshing and absolutely on the money. Judge Wilner states it thus: I doubt as well the premise that the purpose f or collecting th is informatio n is -23- not to discover evidence of crimina lity but merely to establish id entity. It is true, of course , that the DN A samp le will be used to establis h ide ntity, but the principal purpose of establishing identity will be to provide evidence of crim inali ty, evidence that will allow the police to establish probab le cause to collect precisely the same evidence for use in court. The foundation upon which these laws rest, and the invocation of United S tates v. Knig hts, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed.2d 497 (200 1) to sustain them, is that convicted criminals are more likely to have committed other crimes and are m ore likely to commit future crimes than the general population, and that collecting and storing their DNA will materially assist law enforcement agencies in solving crimes and perhaps deter those from whom the samples are taken from committing future crimes. In my view, it is, at best, misleading even to suggest, much less hold, that th is program is not designed for the predominant purpose of pro viding eviden ce of c riminalit y. It clearly is. Id. at ___, ___ A. 2d at ___ (Wilner, J. concurring ) [slip op. at 2]. I reject, as disingenuous the argument that the act does not constitute the gathering of direct evidence of a crime. As the majority points out, what is contemplated is that the act serves to identify the perpetrator similar to the way inv estigators hav e used fing erprints for many years. W hether direc t evidence o r not, that use o f the identific ation is itself evidence, as will become even mo re evident w hen it is introduced as such in the perpetrator s trial. In determining that the search is reasonable, the majority also characterizes as minimally intrusive the buccal swab required to collect the D NA s ample . Raines, at ____, ____ A.2d a ____ [slip op. at 18, 41]. The DNA sample, moreover, the majority states, amounts to a simp le identif ication te chniqu e akin to fingerp rints. Id. at 37. I am not persuaded. Although the intrusion of a buccal swab may be minimal in a physical sense, it -24- certainly is great when the vast amou nt of perso nal and priv ate inform ation DN A contain s is considered. As was recently explained: While the DN A pro file is of ten refe rred to a s a type of genetic finger print, this analogy is far too simplistic. Although current profiling methods utilize only limited amounts of g enetic information, with the mapping of the human genome now un derway, futu re DNA analysis may soon reveal an ind ividual s medical history; proclivity tow ard certain diseases; and hereditary information such as race, ph ysical, and behav ioral traits . Thus, b iologica l sample s . . . have the potential to reveal far m ore intimate information about the individual donor than a simple fin gerprint. . . . Unlik e an individ ual s fingerp rint, which u se is limited to identification, informa tion potentially co ntained in a DNA profile may subject an individual to embarrassment, humiliation, public hostility, and even f inancia l harm. Jeffrey S. Grand, The Blooding of America: Privacy and the DNA Dragnet, 23 C ARDOZO L. R EV. 2277 (2002). In light of the heightened sensitivity of the information available through DNA analysis, as contrasted with fingerprinting, I find the search in this case highly intrusive. Unlike fingerprints, which contain all of the useable identifying information at the time the prints are taken, the DNA search do es not end with the swab . To the co ntrary, the swab is then subjected to scientific tests, which m ay extract very sen sitive, persona l, and poten tially humiliating information. Regardless of how physically intrusive the DNA swab is, the fact of the matter is that the State has not sufficiently established that there is any individualized basis for the search, probable cause or so me appro priate level of sus picion, that w ould justify any intrusion upon the respondent s constitutionally-protected privacy interest in his own body. Neither has the majority identified a government interest sufficient to override the respondent s privacy -25- interest. Judges Raker and Wilner recognize that this is so and are troubled by it. Nevertheless, because, as Judge Wilner pu ts it, [a]s a grou p, defined by their own judicially-determined conduct, [Convicted felons] do const itute a spe cial threa t to public saf ety, even while in prison and certainly after their release, ___ Md. at ___, ___ A. 2d at ___ (Wilner, J. concurring) [slip op. at 2], they overlook the absence o f a legitimate S tate interest and the absence of any individualized focus, cho osing instea d to treat the information gathering as akin to the collection and storag e of finge rprints 12 or mu g shot photog raphs. Id. at ____, ___ A. 2d at ___. [slip op. at 3] That the DNA is more reliable serves as the apology for its more intrusiveness. In short, it seems that to Judges Raker and Wilner, the ends really justify the means. 13 12 To the extent that the comparison is made to fingerprints, while their purposes may indeed overlap, there is a difference in kind between the collection of fingerprint data and DNA. For the collection of fingerprints, there is no invasion of the body, but with DNA collection such an invasion most assuredly occurs. And, of course, the information fingerprints convey is obtained, and exh austed, when the p rints are taken. Moreov er, fingerprints are taken, as a matter of course, from anyone arrested and thus required to be booked, as a means of identification of all of those persons. There are no distinctions drawn based on the crime committed, whether there is a conviction or the degree of the threat that the person is perce ived to r eprese nt, now or in the future. T hus, the fact that finge rprints might later prove to be strong, even dispositive, evidence against a defendant in an unrelated case is really incidental to, not the purpose of, their being take n. When, how ever, fingerprints are not obtained as a part of the normal booking procedure, there certainly is, and necessarily has to b e, some individualized basis for seeking them. That is decidedly not the case w ith respe ct to DN A colle ction pu rsuant to the act. 13 It is interesting that one of the reasons the majority, (note the reliance on Jones v. Murray), and Judges Raker and Wilner, would uphold the DNA collection statute is because (contin ued...) -26- It mus t be c onceded that a DN A da taba se may be, inde ed, a lread y has demonstrated that it may be a valuable tool for solving crimes that otherwise would be difficult of solution or would not be solved and could be a boon to those falsely accused, by exonerating them, as it has been to some already. That does not, however, answer the constitutional question. Und oubtedly, there are m any crime figh ting tools that, if allowed to be used, without restraint or with minimal oversight and unrestrained by the Fourth Amendment, would prove quite effective in detecting and solving crime, yet would wreak havoc with constitutional rights, even of inmates. It is for that reason that throughou t the history of the Fo urth Am endmen t, considerab le efforts have been made to strike a balance between the State s law enforcement goals and the constitu tional rig hts of th e individ ual citize n. See Wayne LaFave, Search And Seizure: A Treatise On The Fourth Amendment, 2 SEARCH & S EIZURE § 3.1 (a) (3 d ed.) (2004); see also Joseph D. Gra no, Probable Cause an d Com mon Se nse: A Reply to the Critics of Illinois v. Gates, 17 U. M ICH. J. L. R EF. 465, 47 8-95 (1 984); W eber, The Birth of Probable 13 (...continued) of the threat to the public that some convicted felons po se. That is recognition on their pa rt that, to some extent, there must be a basis that is specific to the person that justifies the collection. Rather than focusing on each individual convicted felon, however, they lump them all together by holding that an amorphous and ill-defined suspicion of a group suffices. This is reminiscent of the general warrant, one that fails sufficiently to specify the place or person to be searched or the things to be seized, thus authorizing a random or blanket search, see Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed.2d 782 (1967); State v. Siegel, 266 Md. 256, 261, 292 A.2d 86 , 89 (1972 ); see also Article 26 of the Maryland Declaration of Rights ( That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous a nd oppre ssive; and a ll general warrants to search suspected places, or to apprehend suspected persons, without naming or describin g the place, or the person in special, are illegal, and ought not to be granted. ), and the writ of assistanc e, making an already scary scenario ev en scarier. -27- Cause, 11 A NGLO -A MERICAN L.R EV. 155 (1982). Surely the framers wanted law enforcement to operate in an effective and efficient manner; however, they were wise enough not to adopt a by any m eans ne cessary s tance. In fact, the means and limitations which law enforcement utilized to enforce the law did not, and do not, just matter, they became, and remain, key to any well-thought-out legal analysis and correct exposition of the law regarding the Fourth Ame ndme nt. I am also reminded of the wise coun sel of Mr. Justice Bra ndeis, given in a similar ve in within the context of an illegal wiretap: [I]t is ... immaterial that the intrusion was in aid of law enforcem ent. Experience should teach us to be most on our guard to protect liberty when the Gov ernm ent's purposes are bene ficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The g reatest dang ers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct. 564, 572, 72 L. Ed. 944, 957 (1928 ) (Bran deis, J. dis senting ). I dissent. Judges Harrell and Greene join in the views expressed herein. -28-

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