                    SUPREME COURT OF ARIZONA
                             En Banc

MARIO W.,                         )   Arizona Supreme Court
                                  )   No. CV-11-0344-PR
                      Petitioner, )
                                  )   Court of Appeals
                 v.               )   Division One
                                  )   Nos. 1 CA-SA 11-0016
THE HONORABLE THOMAS KAIPIO,      )        1 CA-SA 11-0020
COMMISSIONER OF THE SUPERIOR      )        1 CA-SA 11-0025
COURT OF THE STATE OF ARIZONA,    )        1 CA-SA 11-0031
in and for the County of          )        1 CA-SA 11-0032
Maricopa,                         )        1 CA-SA 11-0042
                                  )        1 CA-SA 11-0043
         Respondent Commissioner, )        (Consolidated)
                                  )
                                  )   Maricopa County
STATE OF ARIZONA,                 )   Superior Court
                                  )   Nos. JV-181946
          Real Party in Interest. )        JV-181821
__________________________________)        JV-555266
BRADLEY W.,                       )        JV-555329
                                  )        JV-555361
                      Petitioner, )        JV-555390
                                  )        JV-555429
                 v.               )
                                  )
THE HONORABLE THOMAS KAIPIO,      )
COMMISSIONER OF THE SUPERIOR      )   O P I N I O N
COURT OF THE STATE OF ARIZONA,    )
in and for the County of          )
Maricopa,                         )
                                  )
         Respondent Commissioner, )
                                  )
STATE OF ARIZONA,                 )
                                  )
          Real Party in Interest. )
__________________________________)
ALEXIS A.,                        )
                                  )
                      Petitioner, )
                                  )
                 v.               )
                                  )
THE HONORABLE MARK BRAIN,         )
COMMISSIONER OF THE SUPERIOR      )
COURT OF THE STATE OF ARIZONA,    )
in and for the County of          )
Maricopa,                         )
                                  )
         Respondent Commissioner, )
                                  )
THE STATE OF ARIZONA,             )
                                  )
          Real Party in Interest. )
__________________________________)
NOBLE B.,                         )
                                  )
                      Petitioner, )
                                  )
                v.                )
                                  )
THE HONORABLE THOMAS KAIPIO,      )
JUDGE OF THE SUPERIOR COURT OF    )
THE STATE OF ARIZONA, in and for )
the County of Maricopa,           )
                                  )
                Respondent Judge, )
                                  )
STATE OF ARIZONA,                 )
                                  )
          Real Party in Interest. )
__________________________________)
BAILEY J.,                        )
                                  )
                      Petitioner, )
                                  )
                 v.               )
                                  )
THE HONORABLE MARK F. ACETO,      )
JUDGE OF THE SUPERIOR COURT OF    )
THE STATE OF ARIZONA, in and for )
the County of Maricopa,           )
                                  )
                Respondent Judge, )
                                  )
STATE OF ARIZONA,                 )
                                  )
          Real Party in Interest. )
__________________________________)
DEVON C.,                         )
                                  )

                                 2 
                      Petitioner, )
                                  )
                  v.              )
                                  )
THE HONORABLE PETER A. THOMPSON, )
COMMISSIONER OF THE SUPERIOR      )
COURT OF THE STATE OF ARIZONA,    )
in and for the County of          )
Maricopa,                         )
                                  )
         Respondent Commissioner, )
                                  )
STATE OF ARIZONA,                 )
                                  )
          Real Party in Interest. )
__________________________________)
ERIC R.,                          )
                                  )
                      Petitioner, )
                                  )
                 v.               )
                                  )
THE HONORABLE THOMAS KAIPIO,      )
COMMISSIONER OF THE SUPERIOR      )
COURT OF THE STATE OF ARIZONA,    )
in and for the County of          )
Maricopa,                         )
                                  )
         Respondent Commissioner, )
                                  )
STATE OF ARIZONA,                 )
                                  )
          Real Party In Interest, )
__________________________________)


    Special Action from the Superior Court in Maricopa County
          The Honorable Thomas A. Kaipio, Judge Pro Tem

                            AFFIRMED
________________________________________________________________

          Opinion of the Court of Appeals, Division One
             228 Ariz. 207, 265 P.3d 389 (App. 2011)

                             VACATED
________________________________________________________________

                                3 
CHRISTINA PHILLIS, MARICOPA COUNTY PUBLIC ADVOCATE                  Mesa
     By   David Katz, Deputy Public Advocate
          Aaron Jason Max, Deputy Public Advocate
          Colleen Engineer, Deputy Public Advocate
          Devra N. Ellexson, Deputy Public Advocate
          Suzanne Sanchez, Deputy Public Advocate
          Andrew Meissen, Deputy Public Advocate
Attorneys for Mario W., Bradley W., Alexis A.
Bailey J., Devon C., Eric R., and Noble B.

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY                  Phoenix
     By   Linda Van Brakel, Deputy County Attorney
Attorneys for State of Arizona

ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE                  Chandler
     By   David J. Euchner
          Julie M. Levitt-Guren
Attorneys for Amicus Curiae Arizona Attorneys for Criminal
Justice
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1          Arizona law requires juveniles charged with certain

offenses and summoned to appear at an advisory hearing to submit

to the investigating law enforcement agency “a sufficient sample

of buccal cells or other bodily substances for deoxyribonucleic

acid [DNA] testing and extraction.”           A.R.S. § 8-238(A).      The

penalty for failure to comply is revocation of release pending

adjudication.    § 8-238(B).     In this case we consider whether the

statutory    scheme   violates    the    Fourth   Amendment   prohibition

against unreasonable searches and seizures.

                                    I.

¶2          Seven juveniles (collectively, the “Juveniles”) were

separately charged with violations of offenses specified in § 8-


                                    4 
238(A).                    Each was summoned to an advisory hearing, released, and

ordered to submit a buccal sample to law enforcement within five

days.                      In          each              case,     the    superior   court    rejected    Fourth

Amendment objections to the sampling order.

¶3                           The Juveniles then jointly filed a special action in

the court of appeals.                                             That court accepted jurisdiction and a

divided panel held that requiring the submission of DNA samples

from five juveniles for whom a probable cause determination has

been made does not violate the Fourth Amendment.                                                     Mario W. v.

Kaipio, 228 Ariz. 207, 210 ¶ 1, 265 P.3d 389, 392 (App. 2011).

The majority reasoned that a judicial finding of probable cause

is            a          “watershed                            event”    that   reduced      these    juveniles’

expectations of privacy, id. at 214-15 ¶ 22, 265 P.3d at 396-97,

and that the State’s “interest in identifying these juveniles

outweighs their right to privacy,” id. at 217 ¶ 30, 265 P.3d at

399.1                A different 2-1 majority, however, held that the Fourth

Amendment forbids the DNA sampling of the two juveniles for whom

no probable cause determination has yet been made.                                                    Id. at 210

¶ 2, 265 P.3d at 392.2


                                                            
1
     The dissenting judge argued that DNA sampling is a
suspicionless search barred by the Fourth Amendment. Id. at 222
¶ 57, 265 P.3d at 404 (Norris, J., dissenting in part, but
concurring in the result as to the two juveniles).
2
     The dissenting judge argued that there was no need to reach
the constitutional question because, in her view, § 8-238 does
not compel submission of a sample before a probable cause
                                                                          5 
¶4                           The           State              and           two           of         the           Juveniles                      petitioned                         for

review.                    We granted both petitions to address a recurring legal

issue                of          statewide                        importance.                                   We          exercise                      jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution

and A.R.S. § 12–120.24 (2003).

                                                                                          II.

¶5                           After a buccal sample is obtained under A.R.S. § 8-

238(A), the investigating law enforcement agency transmits it to

the Department of Public Safety (“DPS”), where it is analyzed

and            a         DNA             profile                     produced.                               §§ 8-238(C), 8-238(D),                                                  13-

610(H)(1), (2).                                       The profile is entered into an Arizona DNA

identification                                   system,                     see              § 41-2418                          (establishing                                 state

system), and a national database, the Combined DNA Index System

(CODIS),                      see             42           U.S.C.                   § 14132(a)                           (establishing                                national

database).                            See generally                                Haskell v. Harris, 669 F.3d 1049,

1051-52                  (9th             Cir.              2012)               (discussing                          interface                       of         California

database and CODIS).                                               The sample and profile may then be used,

inter              alia,               “[f]or                 law           enforcement                           identification                                purposes.”

A.R.S.                  § 13-610(I)(1).3                                           A         juvenile                      not             ultimately                          found


                                                                                                                                                                                               
                                                                                                                                                                                               
determination.    Id. at 219-20 ¶¶ 39-43, 265 P.3d at                                                                                                                       401-02
(Orozco, J., concurring in part and dissenting in part).
 
3
     Other provisions of Arizona law not at issue today require
DNA profiling of various non-juveniles, including convicted
felons, those arrested for certain crimes, probationers, and
parolees. See A.R.S. § 13-610(A)–(D), (K), (L).

                                                                                             6 
delinquent    “may   petition   the    superior      court”       to   expunge   the

profile and sample from the Arizona system.               A.R.S. § 13-610(M);

see also 42 U.S.C. § 14132(d)(2) (providing for expungement from

CODIS); A.R.S. § 13-610(J) (providing for expungement when an

adjudication    is   overturned   on    appeal      or   in   a    postconviction

relief proceeding).

                                      III.

                                       A.

¶6           Before addressing the constitutional claims raised by

the Juveniles, it is appropriate to begin by noting what is not

at issue in this case.

¶7           First, the parties agree that DNA sampling involves a

search or seizure governed by the Fourth Amendment.

¶8           Second, it is common ground that none of the Juveniles

had   been   adjudicated    delinquent       for   the   charged       crimes    when

ordered to submit a buccal cell sample.              If such an adjudication

is made, a statute not at issue today, A.R.S. § 13-610(O)(2),

governs DNA sampling and profiling.                Neither the State nor the

Juveniles contest that post-adjudication sampling and profiling

are constitutional.        See In re Leopoldo L., 209 Ariz. 249, 250

¶ 1, 99 P.3d 578, 579 (App. 2004) (finding post-adjudication

sampling and profiling constitutional); accord In re Lakisha M.,

882 N.E.2d 570, 582 (Ill. 2008); Petitioner F v. Brown, 306

S.W.3d 80, 93 (Ky. 2010); see also Wilson v. Collins, 517 F.3d

                                       7 
421, 423 (6th Cir. 2008) (upholding DNA profiling of convicted

felons); United States v. Amerson, 483 F.3d 73, 89 (2d Cir.

2007) (upholding DNA profiling of probationers); United States

v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004) (upholding DNA

profiling of conditional releasees).

¶9          Third, the State does not claim probable cause that a

DNA profile will provide evidence that any of these juveniles

committed    the   charged    offenses.          Nor    does   the    State    even

reasonably suspect that a juvenile committed another offense for

which the DNA profile might provide investigative assistance.

Cf. Hayes v. Florida, 470 U.S. 811, 817 (1985) (“[T]he Fourth

Amendment     would      permit     seizures       for     the       purpose    of

fingerprinting,     if   there     is    reasonable      suspicion     that    the

suspect has committed a criminal act, if there is a reasonable

basis for believing that fingerprinting will establish or negate

the suspect’s connection with that crime, and if the procedure

is carried out with dispatch.”); A.R.S. § 13-3905 (permitting

temporary    detention       for    investigative        fingerprinting        upon

judicial order).

¶10         Fourth, although § 13-610(I)(1) permits use of the DNA

samples     and    resulting        profiles       for     “law       enforcement

identification     purposes,”      the   State   does    not   seek    a   profile

simply to identify any juvenile in the normally accepted use of

that term.     Put differently, the State does not claim that it

                                         8 
needs a DNA profile in any of the cases before us to determine

who the charged juvenile is.                                            Rather, the State argues that the

statutory                         phrase                   includes    not    only   authentication       of   a

juvenile’s identity, but also use of the profile to investigate

whether                   the            juvenile               has   committed    other   uncharged    crimes.

Indeed, given that the DNA profiles are placed both in Arizona

and national databases, and are available to law enforcement

officers throughout the country for investigative purposes, it

is plain that the legislature intended the profile to be used

for purposes other than simply confirming the name of the person

charged with the current crime.4

¶11                          Finally, the Juveniles do not contest the efficacy of

the DNA database systems – both state and national – in solving

crimes and providing unique identification information about an

individual.                              But neither does the State claim – nor does any

case suggest - that these law enforcement goals would justify

DNA sampling and profiling of ordinary citizens.                                                 See Haskell,

669                  F.3d                     at               1058    (majority      opinion)         (assuming


                                                            
4
     “The CODIS system enables federal, state, and local crime
labs to exchange and compare DNA profiles electronically,
thereby linking crimes to each other and to convicted
offenders.”   Tracey Maclin, Is Obtaining an Arrestee’s DNA A
Valid Special Needs Search Under the Fourth Amendment?       What
Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics
165, 166 (2006) (internal quotation marks omitted).      CODIS is
currently linked “to all fifty states as a national index
linking databases at the local, state and national levels.” Id.

                                                                         9 
unconstitutionality of such a procedure); id. at 1061 (noting

that     the      majority      and      the        dissent        agreed        on      the

unconstitutionality of such a procedure).

                                           B.

¶12            We turn then to the issue at hand:                       May the State,

consistent with the Fourth Amendment, compel these Juveniles to

submit    to     DNA   extraction     and        profiling    as    a     condition      of

release?

¶13            The Fourth Amendment to the United States Constitution

provides:

       The right of the people to be secure in their persons,
       houses, papers, and effects, against unreasonable
       searches and seizures, shall not be violated, and no
       Warrants shall issue, but upon probable cause,
       supported by Oath or affirmation, and particularly
       describing the place to be searched, and the persons
       or things to be seized.

It has been long established that warrantless searches “are per

se unreasonable under the Fourth Amendment – subject only to a

few    specifically     established        and     well-delineated         exceptions.”

Katz v. United States, 389 U.S. 347, 357 (1967).                          Supreme Court

jurisprudence also long taught that even searches excepted from

the    warrant    requirement      could    be     conducted       only    on    probable

cause.      See    Dunaway    v.   New     York,     442   U.S.     200,    208       (1979)

(discussing case law).             In 1968, however, the Court held that

the    Fourth     Amendment     allowed          temporary    seizures          based     on



                                           10 
something      less       than     probable       cause    –    reasonable       suspicion.

Terry v. Ohio, 392 U.S. 1, 25-31 (1968).

¶14           The        Court     has     also     upheld      searches       in     certain

circumstances absent any showing of probable cause or reasonable

suspicion.          In    Samson     v.    California,         the   Court     held    that   a

search mandated as a condition of parole does not violate the

Fourth Amendment.           547 U.S. 843, 847 (2006).                 Although the Court

might   have    premised          Samson    on      a   consent      theory,    it    instead

employed a “totality of the circumstances test” in finding the

search reasonable.               Id. at 848-53.         Under that test, “[w]hether

a search is reasonable is determined by assessing, on the one

hand,   the    degree       to     which    it    intrudes       upon   an     individual’s

privacy, and on the other, the degree to which it is needed for

the promotion of legitimate governmental interests.”                             Id. at 848

(citation and internal quotation marks omitted).                             The Court had

earlier employed a totality of the circumstances analysis to

uphold the suspicionless search of a probationer.                            United States

v. Knights, 534 U.S. 112, 118 (2001).                            This Term, the Court

upheld strip searches of jail detainees without any showing of

probable cause or reasonable suspicion.                              Florence v. Bd. of

Chosen Freeholders, 132 S. Ct. 1510, 1518-23 (2012).                                  Although

not explicitly employing a totality of the circumstances test,

Florence also balanced the government’s interests in safety and



                                              11 
orderly     jail     administration           against       the    reduced       privacy

interests of detainees.          Id.

¶15         No     Arizona   or    United          States    Supreme     Court     case,

however, addresses the constitutionality of suspicionless pre-

conviction    DNA     testing.         The    case    law   elsewhere     is     sharply

divided.      Maryland’s     highest          court    recently    found     that    DNA

profiling of arrestees violated the Fourth Amendment.                          King v.

State, 42 A.3d 549, 580 (Md. 2012).                   Other courts have also so

held, distinguishing the post-conviction cases because arrestees

have   a   higher    expectation       of     privacy    than     convicted      felons.

See, e.g., Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir.

2009); In re Welfare of C.T.L., 722 N.W.2d 484, 492 (Minn. Ct.

App. 2006).

¶16         Several      other     courts,           however,     have     found     DNA

profiling of arrestees reasonable under the Fourth Amendment.

See, e.g.,       Haskell, 669 F.3d at 1065 (2-1 decision);                        United

States v. Mitchell, 652 F.3d 387, 416 (3d Cir. 2011) (en banc)

(8-6 decision); United States v. Pool, 621 F.3d 1213, 1226 (9th

Cir. 2010), reh’g en banc granted, 646 F.3d 659 (9th Cir.), and

vacated, 659 F.3d 761 (9th Cir. 2011); Anderson v. Commonwealth,

650 S.E.2d 702, 705-06 (Va. 2007).                  These courts have found that

the government’s interests in identifying arrestees and solving

crimes     outweigh     an   arrestee’s            diminished      expectations       of

privacy.

                                             12 
¶17         Most courts considering the constitutionality of DNA

sampling    and       profiling    have     employed      the     totality     of   the

circumstances test.         See Mitchell, 652 F.3d at 403 (“We and the

majority of circuits — the First, Fourth, Fifth, Sixth, Eighth,

Ninth, Eleventh, and District of Columbia — have endorsed a

totality of the circumstances approach.”).                   But see Amerson, 483

F.3d at 78 (applying “special needs test”); Green v. Berge, 354

F.3d 675, 677-78 (7th Cir. 2004) (same).                        The parties do not

dispute the applicability of the totality of the circumstances

test, and we therefore analyze the Arizona scheme under that

rubric.

                                           C.

¶18         We    begin    by   recognizing        that   the    Arizona     statutory

scheme involves two separate intrusions on a juvenile’s privacy.

First, the State physically seizes a buccal cell sample from the

juvenile.     Second, it processes the seized cells and extracts a

DNA profile.       See State v. Gomez, 226 Ariz. 165, 166 n.1 ¶ 3,

244 P.3d 1163, 1164 n.1 (2010) (describing process of sampling);

1 Kenneth S. Broun et al., McCormick on Evid. § 205 (6th ed.

2010)     (describing      process    of        extracting      profiles     from   DNA

samples).        In    Mitchell,     the    Third     Circuit      found     that   DNA

sampling and profiling involved two searches — “the physical

collection of the DNA sample” and the “processing of the DNA

sample.”     652 F.3d at 406-07.                 Other courts have reached the

                                           13 
same            conclusion.                                See      Amerson,      483    F.3d    at    84-85;     State    v.

Martin, 955 A.2d 1144, 1153-54 (Vt. 2008).

¶19                          This approach is consistent with precedent outside the

DNA context.                                 In United States v. Chadwick, for example, the

Supreme Court analyzed separately the legality of the seizure of

a steamer trunk and the later opening of the trunk, holding the

initial                    seizure                     reasonable           but     finding       the     later       search

unconstitutional.                                       433 U.S. 1, 13 & n.8 (1977).5                    Similarly, our

court               of         appeals                   has        held   that    even     if   an     officer      may   be

justified under the circumstances in seizing a purse during a

Terry stop, the same justification does not automatically allow

the search of the purse.                                               In re Tiffany O., 217 Ariz. 370, 375

¶ 20, 174 P.3d 282, 287 (App. 2007); see also United States v.

Doe, 61 F.3d 107, 110-11 (1st Cir. 1995) (analyzing separately

the constitutionality of the seizure of a closed container and

subsequent opening of the container).

¶20                          These cases recognize that even when law enforcement

exigencies                         justify                     an    initial      limited       intrusion       on   Fourth

Amendment protected interests, a greater showing is required for

a second more extensive intrusion.                                                      The two-tiered approach is

particularly                             appropriate                  in   the     DNA    sampling       and     profiling

context                  because                   the         two    searches      implicate         different      privacy
                                                            
5
     Chadwick   was  later   overruled   with   respect  to its
interpretation of the “automobile exception” to the Fourth
Amendment in California v. Acevedo, 500 U.S. 565 (1991).
                                                                            14 
interests.       The seizure of buccal cells is a physical intrusion,

but    does    not   reveal         by    itself     intimate     personal       information

about the individual.               The later search of the sample, however,

reveals        uniquely        identifying          information       about       individual

genetics.       See Haskell, 669 F.3d at 1051 (describing identifying

characteristics of DNA profile).                       That second search is, in

effect, the analog to opening the steamer trunk in Chadwick and

the purse in Tiffany O. to see what is inside.

                                               1.

¶21            We thus turn first to the seizure of buccal cells.                            It

is clear that one arrested on probable cause may be compelled to

give fingerprints to law enforcement.                      See Davis v. Mississippi,

394 U.S. 721, 725-28 (1969).                   Several courts have characterized

a     buccal    swab      as    a        similarly    minimal        intrusion      into     an

arrestee’s       privacy.           See,    e.g.,     Haskell,       669   F.3d    at   1050;

Mitchell, 652 F.3d at 407; Martin, 955 A.2d at 1153-54.

¶22            We agree.        While taking fingerprints, law enforcement

officers will often touch the body of an arrestee or restrain

him from departing until the process is completed.                                See A.R.S.

§ 13-3890 (providing for court order when arrestee refuses to

submit to fingerprinting).                   The arrestee is required to press

his hands on both an ink pad and the fingerprint card.                                      See

A.A.C.     § R13-1-106          (providing           for    use      of    ink    and      roll

fingerprint       cards).           The    intrusion       on   an   arrestee’s      privacy

                                               15 
interests in the swiping of a swab to obtain buccal cells is not

significantly          greater       than    fingerprinting.             Indeed,    in    some

instances arrestees apparently take their own buccal swabs.                                See

Haskell, 669 F.3d at 1057.

¶23            But     even    if     extracting          the    cell    sample    does    not

intrude on privacy to the same extent as a search of a home or

the drawing of blood, it nonetheless remains a search or seizure

under the Fourth Amendment.                    See, e.g., Mitchell, 652 F.3d at

406.     Under the totality of the circumstances test, the issue is

whether, and to what degree, that intrusion serves important

governmental interests.               Samson, 547 U.S. at 848.

¶24            The     State        offers     various          justifications     for     the

extraction of a DNA sample.                    We find one compelling.                  If, as

here,    a    juvenile        is    released     pending         adjudication     and    later

fails to appear for trial without previously having submitted a

buccal       sample,    the        opportunity       to   obtain     a   DNA    profile    for

identification purposes will have been lost.                             The State has an

important       interest       in     locating       an    absconding      juvenile       and,

perhaps years after charges were filed, ascertaining that the

person located is the one previously charged.                                  If the State

cannot obtain a DNA sample from a juvenile before release, it

may never have another opportunity to do so.

¶25            This exigency justifies obtaining a buccal cell sample

even if a formal judicial determination of probable cause was

                                               16 
not made at the advisory hearing.                                                 Although two of the Juveniles

were              ordered                     to           submit       samples     before   a   probable   cause

determination was made, each had been charged with a serious

crime in a petition filed under oath by the prosecutor.                                                       See

Ariz. R.P. Juv. Ct. 24(a).                                              One arrested for a serious crime may

be        fingerprinted                               before        a   judicial    determination   of   probable

cause.                  See A.R.S. § 13-3890(A).6                                A judicial order to provide a

buccal cell sample occasions no constitutionally distinguishable

intrusion.7                           Thus, we find that the first search — the physical

extraction of the DNA — is constitutional as to all of the

Juveniles.


                                                            
6
     The Supreme Court appears never to have expressly held that
the process of fingerprinting, as opposed to detaining an
individual for that purpose, constitutes a search or seizure
under the Fourth Amendment. Compare Hayes v. Florida, 470 U.S.
811, 814 (1985) (stating that “fingerprinting, because it
involves neither repeated harassment nor any of the probing into
private life and thoughts that often marks interrogation and
search, represents a much less serious intrusion upon personal
security than other types of searches and detentions”) with
United States v. Dionisio, 410 U.S. 1, 14-15 (1973) (comparing
voice exemplars to fingerprinting, and finding that neither
involve significant probing such that a search has occurred).
We assume for present purposes, however, that fingerprinting,
albeit minimally intrusive, constitutes a search or seizure.
 
7
     A probable cause finding is required under Juvenile Rule
23(D) for the detention of a juvenile. See Mario W., 228 Ariz.
at 219 ¶¶ 40-41, 265 P.3d at 401 (Orozco, J., concurring in part
and dissenting in part).      Not all juveniles, however, are
detained before an advisory hearing.    See Ariz. R.P. Juv. Ct.
28(B)(1)-(2).   The order to submit buccal cell samples under
§ 8-238(A), as this case illustrates, may thus precede a
probable cause determination, and it is that order, not any
eventual detention, that the two juveniles challenged below.
                                                                           17 
                                        2.

¶26           The State argues that once it has lawfully obtained

the cell samples, the Fourth Amendment provides no greater bar

to the processing of those samples and the extraction of the DNA

profile than it does to the analysis of fingerprints.                         But the

State’s       reliance     on   the    fingerprinting         analogy     here     is

misplaced.      Once fingerprints are obtained, no further intrusion

on the privacy of the individual is required before they can be

used for investigative purposes.              In this sense, the fingerprint

is akin to a photograph or voice exemplar.                      But before DNA

samples can be used by law enforcement, they must be physically

processed and a DNA profile extracted.              See Erin Murphy, The New

Forensics:      Criminal    Justice,   False     Certainty,     and     the    Second

Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 726-30

(2007).

¶27           This second search presents a greater privacy concern

than the buccal swab because it involves the extraction (and

subsequent      publication      to    law     enforcement      nationwide)        of

thirteen genetic markers from the arrestee’s DNA sample that

create    a   DNA   profile     effectively     unique   to    that     individual.

Ashley Eiler, Note, Arrested Development: Reforming the Federal

All-Arrestee DNA Collection Statute to Comply with the Fourth

Amendment, 79 Geo. Wash. L. Rev. 1201, 1220 (2011) (“[I]t is the

nature of the information obtained by analyzing DNA samples for

                                        18 
inclusion   in      CODIS    rather    than       the    bodily   intrusion        of   the

initial collection that is problematic.”).                        Because the State

may constitutionally extract DNA profiles from the buccal swabs

of those who are eventually convicted, the essential issue is

whether the governmental interest in obtaining the DNA profiles

before trial is sufficient to justify the second search.

¶28         For juveniles not eventually adjudicated delinquent,

we can perceive no strong governmental interest in creating DNA

profiles in the short period between the advisory hearing and

the adjudication.           The state and federal statutes providing for

the   expungement         from    databases        of    profiles      obtained         from

arrestees     not     subsequently         convicted       recognize        that    these

profiles should not be used for law enforcement purposes after

adjudication,       and     given     the     constitutional          presumption        of

innocence, we can find no stronger state interest in their use

before adjudication.             Cf. John D. Biancamano, Note, Arresting

DNA: The Evolving Nature of DNA Collection Statutes and Their

Fourth   Amendment        Justifications,         70     Ohio   St.   L.J.    619,      649

(2009) (noting that pre-trial profiling will include innocent

arrestees).

¶29         Indeed,       whether     or    not    the    juvenile     is    eventually

adjudicated      delinquent,        the     benefit       to    law   enforcement        of

obtaining a DNA profile in the few weeks between the advisory

hearing and trial is speculative at best.                         The buccal sample

                                            19 
will    not     typically    be     processed    until        weeks    after    it    is

obtained.       In California, for example, it takes an average of

thirty-one days to process a sample, Haskell v. Brown, 677 F.

Supp. 2d 1187, 1201 (N.D. Cal. 2009), aff’d sub nom. Haskell v.

Harris, 669 F.3d 1049 (9th Cir. 2012), and the State does not

suggest that the process in Arizona is speedier.                        Adjudication

of charges for juveniles not detained (as the Juveniles here)

occurs within sixty days of the advisory hearing, Ariz. R.P.

Juv.    Ct.     29(B)(2),    and     under     § 8-238(A),       the    juvenile      is

afforded five days after the advisory hearing to submit the

buccal cell sample.          Thus, the State’s access to a profile will

not    be    significantly    delayed    by     deferring      processing       of   the

sample until the typical juvenile is adjudicated delinquent.

¶30            As   noted    above,    some     juveniles        released      pending

adjudication may abscond, and a DNA profile may be invaluable in

their       identification    and    recapture.         But    because    the    State

already will have obtained a buccal sample from those complying

with a § 8-238 order, it may obtain a DNA profile from the

sample once a juvenile fails to appear as required by law or

court order.        The State has not suggested that earlier lack of

access to the profile will hinder recapture efforts.                           Indeed,

because a juvenile accused of a serious offense but released

pending      adjudication    will     already    have    been    determined      by    a

judge not to pose a significant flight risk, see Ariz. R.P. Juv.

                                         20 
Ct. 28(D), the state interest in pre-adjudication processing of

samples is even more speculative.

¶31           We recognize that DNA profiles are an important law

enforcement         tool    for     investigating         crimes       other      than    those

charged.      See 3 Wayne R. LaFave, Search & Seizure § 5.4 (4th ed.

2004) (noting that the true purpose of DNA databases has not

“been     primarily        to     supplement         or   supplant       fingerprints         as

markers     of   true      identity      but    rather       to    generate       investigate

leads”); David H. Kaye, A Fourth Amendment Theory for Arrestee

DNA   and    Other       Biometric      Databases,          15    U.   Pa.   J.      Const.   L.

(forthcoming                Summer              2012),                 available              at

http://ssrn.com/abstract=2043259                     (“Realistically,             the     sole

purpose of arrestee sampling . . . is intelligence.”).                                Having a

DNA   profile        before     adjudication          may    conceivably          speed   such

investigations.            But one accused of a crime, although having

diminished expectations of privacy in some respects, does not

forfeit      Fourth      Amendment       protections         with      respect       to   other

offenses not charged absent either probable cause or reasonable

suspicion.          An     arrest      for   vehicular           homicide,     for    example,

cannot      alone    justify       a   warrantless          search     of    an    arrestee’s

financial records to see if he is also an embezzler.

¶32           Thus, we find no state interest sufficient to justify

the serious intrusion on the privacy interests of the Juveniles

occasioned by the second search – the extraction of the DNA

                                               21 
profile from the buccal swab before adjudication or failure to

appear.    The swab remains available for processing thereafter,

and   no   exigency   exists    warranting   an   earlier   suspicionless

search.

                                     IV.

¶33         For the reasons above, we vacate the opinion of the

court of appeals, and we remand the cases to the superior court

for proceedings consistent with this opinion.



                               _____________________________________
                               Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
W. Scott Bales, Justice


_____________________________________
A. John Pelander, Justice


_____________________________________
Robert M. Brutinel, Justice




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