2014 VT 69


State v. Medina (2012-087), State
v. Hewitt, Jr. (2012-101), State v. Goodrich (2012-102), State v. Ramos
(2012-103), State v. Abernathy (2012-207), State v. Hartz (2012-231), State v.
Gerrow (2012-309)
 
2014 VT 69
 
[Filed 11-Jul-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 

2014 VT 69

 

Nos. 2012-087, 2012-101, 2012-102, 2012-103, 2012-207,
  2012-231 & 2012-309
 


State of
  Vermont


Supreme Court


 


 


     v.


On Appeal from


 


Superior Court, Addison Unit,


Ronald Medina


Criminal
  Division


 


 


State of
  Vermont


March
  Term, 2013

 
    
v.                                                                                          
Superior Court, Rutland Unit,
                                                                                                  
Criminal Division
Douglas J. Hewitt,
Jr.                                                                                                                           

 
State of
Vermont                                                                        
Superior Court, Rutland Unit,
                                                                                                  
Criminal Division
     v.
                                                                                                  

Shane T. Goodrich
 
State of Vermont                                                                        
Superior Court, Rutland Unit,
                                                                                                  
Criminal Division
     v.
                                                                                                  

Ricardo Ramos
 
State of
Vermont                                                                        
Superior Court, Chittenden Unit,
                                                                                                  
Criminal Division
     v.
                                                                                                  

William Abernathy
 
State of
Vermont                                                                        
Superior Court, Windsor Unit,
                                                                                                  
Criminal Division
     v.
                                                                                                  

Tyler J. Hartz
 
State of
Vermont                                                                        
Superior Court, Orleans Unit,
                                                                                                  
Criminal Division
     v.
                                                                                                  

Jeffrey Gerrow, et al.
 
 
Helen M. Toor, J. (12-087)
Cortland Corsones, J. (12-101, 12-102 & 12-103)
Alison S. Arms, J. (12-207)
M. Patricia Zimmerman, J. (12-231)
Robert R. Bent, J (12-309)
 
William H. Sorrell, Attorney General, and Bridget C. Asay
and John Treadwell, Assistant
  Attorneys General, Montpelier, for Plaintiff-Appellant.
 
Matthew F. Valerio, Defender General, and Joshua S. O’Hara,
Appellate Defender, Montpelier,
  for Defendants-Appellants.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   Defendants in these consolidated cases
challenge as unconstitutional a recent amendment to Vermont’s DNA-database
statute that, as of July 1, 2011, mandates warrantless, suspicionless DNA
collection and analysis from anyone arraigned for a felony after a
determination of probable cause.  20 V.S.A. § 1933(a)(2). 
All five of the trial courts in these cases found that the amendment authorizes
unconstitutional searches and seizures, either under the Vermont Constitution,
Chapter I, Article 11, or under the Fourth Amendment to the U.S. Constitution,
or both.  We affirm, addressing only the compliance of the statute with
the requirements of Article 11 of the Vermont Constitution.
¶ 2.            
We repeat at the outset that our holding today pertains only to the
Vermont Constitution and not to the U.S. Constitution.  After the trial
courts in these cases issued their opinions addressing both constitutions, the
U.S. Supreme Court decided that a similar Maryland statute—one that authorized
warrantless, suspicionless DNA collection from persons arrested for violent
crimes or burglary[1]—is
constitutional under the Fourth Amendment.  Maryland v. King, 133
S. Ct. 1958, 1980 (2013).  We delayed our ruling in these cases to
consider the import of King[2]
and to allow additional briefing on the matter.  Having done so, we
recognize that there are two possible bases to differentiate this case from King:
(1) the Vermont statute sufficiently differs from the Maryland statute involved
in King to produce a different result under the Fourth Amendment;[3] and (2) the heightened standards and
requirements of Article 11 of the Vermont Constitution compel a different
result.  We have examined the second basis and determined that the result
is different.  We have not analyzed the first possible basis in depth,
although differences are noted as we encounter them.  Nor does the outcome
of the Fourth Amendment analysis determine compliance with the Vermont
Constitution, as we have firmly established that Article 11 is more protective
in this area than its federal counterpart.  State v. Cunningham,
2008 VT 43, ¶ 16, 183 Vt. 401, 954 A.2d 1290 (“We have consistently held
that Article 11 provides greater protections than its federal analog, the
Fourth Amendment . . . .” (citing State v. Berard,
154 Vt. 306, 576 A.2d 118 (1990))); see generally State v. Jewett, 146
Vt. 221, 500 A.2d 233 (1985) (expounding on the necessity of state constitutional
analysis that is independent from federal constitutional analysis, with
particular reference to Article 11 as distinct from the Fourth
Amendment).  We strike down the amendment to 20 V.S.A. § 1933 as
unconstitutional solely under Vermont Constitution Chapter I, Article 11. 
Although we discuss King, it is only to determine whether we would adopt
parts of its reasoning in our Article 11 analysis. 
¶ 3.            
With that preamble, we begin with a discussion of the evolution of the
statute and its DNA-collection mandate.  We then turn to a summary of our
own Article 11 jurisprudence as it currently exists regarding the special-needs
doctrine.  Next, we examine and distinguish King, as well as a
handful of other Fourth Amendment decisions that we find to be helpful in
determining the contours of Article 11.  Finally, we apply our Article 11
special-needs doctrine to the case at hand.
I.
¶ 4.            
As an initial matter, Vermont’s statutory scheme creates both a DNA data
bank, which contains the DNA samples, and a DNA database, which contains the
DNA records (also known as “profiles”) derived from the DNA samples.  20
V.S.A. §§ 1932(10)-(11), 1938(c)-(d).  In 1998, Vermont created
the statewide DNA data bank and database and began populating them by collecting
and analyzing DNA from those convicted of any statutorily defined “violent
crime.”  1997, No. 160 (Adj. Sess.), § 1 (codified at 20 V.S.A.
§ 1932(12), which defined “violent crime,”[4] and § 1933(a), which required a DNA
sample from any person convicted of a violent crime).  In 2005, the
Legislature expanded the statutory mandate to require a DNA sample and profile
from all those convicted of any felony or attempted felony.  2005, No. 83,
§§ 7, 8 (codified as amended at 20 V.S.A. §§ 1932(12), 1933).[5]  We upheld this expansion as
constitutional under Article 11 in State v. Martin, 2008 VT 53,
¶ 35, 184 Vt. 23, 955 A.2d 1144.[6] 
The most recent amendment, enacted in 2009, expands further those subject to
DNA sampling by adding the following language: “The following persons shall
submit a DNA sample: . . . A person for whom the court has
determined at arraignment there is probable cause that the person has committed
a felony in this state on or after July 1, 2011.”[7]  2009, No. 1, § 24 (codified at
20 V.S.A. § 1933(a)(2)).  It is this requirement, expanding
mandatory DNA sampling to those merely charged with a felony, but not yet
convicted, that defendants challenge here.[8]  Hereinafter, we refer to felony
charges on which probable cause has been found as “qualifying charges.” 
¶ 5.            
The current laws governing the data bank and database are codified at 20
V.S.A. §§ 1931-1946.  Other than the expansion, described above,
of the classes of people subject to DNA sampling under the scheme, the law
remains essentially unchanged since 1998.  The policy section of the
database and data bank law, § 1931, reads as follows:
 
It is the policy of this state to assist federal, state, and local criminal
justice and law enforcement agencies in the identification, detection, or
exclusion of individuals who are subjects of the investigation or prosecution
of crimes.  Identification, detection, and exclusion may be facilitated by
the DNA analysis of biological evidence left by the perpetrator of a crime and
recovered from the crime scene.  The DNA analysis of biological evidence
can also be used to identify missing persons.
 
The law allows analysis of DNA
samples only “for law enforcement identification purposes,” “to assist in the
identification of human remains,” and, “if personal identifying information is
removed, for protocol development and administrative purposes.”[9]  Id. § 1937(a).  It
also provides that DNA records “in appropriate
circumstances . . . may be used to identify missing
persons.”  Id. § 1941(b).  The statute specifically
prohibits analysis “for identification of any medical or genetic disorder.”
 Id. § 1937(b).
¶ 6.            
The DNA sample is analyzed to produce a record, or profile, of
identification information from the DNA loci specified for the Combined DNA
Index System (CODIS), the national DNA repository maintained by the Federal
Bureau of Investigation.  Id. § 1932(4).  Both the sample
and its associated record may “be provided to law enforcement agencies for
lawful law enforcement purposes.”  Id. § 1938(a).  The
tissue or fluid from which the DNA is extracted “may be provided to law
enforcement agencies only for DNA sample analysis for use in any investigation
and prosecution.”  Id. § 1938(b).  The Vermont database
shares its DNA profiles with the national CODIS database.  Id.
§§ 1936, 1938(e), 1939(b). 
¶ 7.            
The Legislature included several provisions to safeguard the integrity
of the database and data bank and the privacy of the personal information
contained therein.  The statutes contain a general confidentiality
requirement, id. § 1941(a), impose criminal penalties for breach of
that requirement, id. § 1941(c), and allow a private right of
action for equitable relief and damages, including punitive damages and
reasonable attorney’s fees, id. § 1941(d).  Criminal and civil
penalties also attach to tampering or attempted tampering with DNA samples. Id.
§ 1945.  Additionally, for those convicted of a qualifying offense,
DNA records must be expunged and samples destroyed if the qualifying offense is
pardoned, or reversed and dismissed.  Id.
§ 1940(a)(1)-(2).  For those whose DNA is collected after arraignment
on a qualifying charge, DNA records must be expunged and samples destroyed if
the qualifying charge is dismissed or pled down to a nonqualifying charge, or
if the qualifying charge is acquitted or downgraded to a nonqualifying charge
at trial.  Id. § 1940(a)(3)-(5).  If, before the record
is expunged, it yields a match with another record in the state or federal
system, the record of that match is retained even though the sample itself and
the original record are destroyed.  Id. § 1940(d).  
¶ 8.            
In its implementation of the database and data bank law, the State
incorporates further safeguards to protect DNA privacy and minimize the intrusion
on the individual.  The law provides for the DNA sample to be extracted
from a blood draw unless a “less intrusive means” of collection is available.
 Id. § 1934.  The State’s current practice is to collect
the sample via a cheek swab.  See Martin, 2008 VT 53,
¶ 22.  For purposes of this analysis we will assume, as we did in Martin,
that the State uses only cheek swabs to collect DNA.[10]  Id.  We do not analyze
any other method of collection, nor have the parties asked us to do so.
¶ 9.            
The State maintains a separate database for convicted-offender records,
arraignee records, and unknown forensic-sample records (i.e., unsolved crime
samples).  The DNA samples, the DNA records generated from the samples, and
the identifying information of the subject—name, date of birth, fingerprints,
height and weight—are all kept in separate files, with only a common numeric
identifier to link them together.  
¶ 10.        
DNA profiling is accomplished by analyzing a DNA sample at thirteen
standard loci within a subject’s chromosomes to determine which genetic
variations are present at each location.  The thirteen loci were
originally selected as a national standard because they are highly variable
among individuals and because they were thought to have no known associations
with disease or other personal medical information.  When a DNA sample is
analyzed, the variations at these locations are identified as a series of
numbers and letters.  This string of numbers and letters constitutes the
“profile” that is uploaded to the state and federal (CODIS) data banks.  
¶ 11.        
Defendants in these cases have all been arraigned on qualifying charges
and subsequently refused to give a DNA sample.  The State moved to compel
them to do so, and they have each had a hearing on the issue pursuant to 20
V.S.A. § 1935(b).  At their sampling hearings, each claimed that
the statute violates the Vermont Constitution.  See State v. Wigg,
2007 VT 48, ¶ 5 n.3, 181 Vt. 639, 928 A.2d 494 (mem.) (stating that
constitutional issues may be raised at such hearings despite statutory
proscriptions limiting the nature of the hearing).  As discussed below,
see infra ¶¶ 26-27, all five trial courts[11] agreed with defendants that mandatory
DNA sampling prior to conviction runs afoul of Article 11, albeit each with
slightly different reasoning.
II.
¶ 12.        
Article 11 of the Vermont Constitution protects against unlawful
searches and seizures.  Vt. Const. ch. I, art. 11.  We have
previously determined that the DNA sampling mandated by § 1933 constitutes
two distinct searches under Article 11:  “The initial taking of the DNA
sample, either by blood draw or by buccal swab, and the subsequent analysis, storage
and searching of the DNA profile are independent intrusions upon personal
security that merit scrutiny under Article 11.”  Martin, 2008 VT
53, ¶ 14 (discussing the 2005 amendment to § 1933, mandating DNA
sampling from all convicted felons).
¶ 13.        
Article 11 states as follows: 
 
That the people have a right to hold themselves, their houses, papers, and
possessions, free from search or seizure; and therefore warrants, without oath
or affirmation first made, affording sufficient foundation for them, and
whereby any officer or messenger may be commanded or required to search
suspected places, or to seize any person or persons, his, her or their
property, not particularly described, are contrary to that right, and ought not
to be granted.
 
Vt. Const. ch. I, art. 11. 
Article 11 thus requires both a “warrant” and “oath or
affirmation . . . affording sufficient foundation”—also
known as probable cause.[12]
 See State v. Berard, 154 Vt. 306, 310-11, 576 A.2d 118, 120-21
(1990) (stating that Article 11 contains warrant and probable cause
requirements).  “The language of Article 11 does not expressly limit its
protection to ‘unreasonable’ searches and seizures as does the Fourth Amendment
to the United States Constitution.  This Court, however, has consistently
interpreted Article 11 as importing the ‘reasonableness’ criterion of the
Fourth Amendment.”  Id. at 309, 576 A.2d at 120 (citing State v.
Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986)).  “Although warrantless
searches are sometimes permitted under Article 11, these exceptions must be
‘jealously and carefully drawn.’ ”  State v. Savva, 159 Vt.
75, 85, 616 A.2d 774, 779 (1991) (quoting Jewett, 148 Vt. at 328, 532
A.2d at 960).  Warrantless searches are thus per se unreasonable.  State
v. Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584 (1979).  “The warrant
requirement favors decisionmaking by the judicial branch, a neutral and
detached magistrate, rather than by the executive branch, the officer engaged
in the often competitive enterprise of ferreting out crime.”  Savva,
159 Vt. at 86, 616 A.2d at 780 (quotation omitted).  The warrant
requirement likewise favors judicial decisionmaking over legislative
decisionmaking—that is, evaluations made on a case-by-case basis, with
particularized suspicion, rather than on the issuance of “general warrants”—or
laws that may essentially function as general warrants.  State v.
Record, 150 Vt. 84, 86, 548 A.2d 422, 424 (1988).  We generally afford
legislative enactments the presumption of constitutionality.  See State
v. Hance, 2006 VT 97, ¶ 6, 180 Vt. 357, 910 A.2d 874.  In this
case, however, the presumptive unconstitutionality of warrantless searches and
seizures trumps our baseline deference to the Legislature.  See State
v. Birchard, 2010 VT 57, ¶ 17, 188 Vt. 172, 5 A.3d 879 (“Where
defendant had an expectation of privacy . . . the burden
then shifts to the State to show a warrantless search is not prohibited under
Article 11.”).  Defendants, like the rest of us, have an expectation of
privacy in their oral cavity and in the information contained in their DNA.
 See Martin, 2008 VT 53, ¶ 21 (identifying the two privacy
intrusions).  The State therefore has the burden to prove the
constitutionality of 20 V.S.A. § 1933(a)(2).  Id.
¶ 9.
¶ 14.        
With that said, “Article 11 does not contemplate an absolute prohibition
on warrantless searches or seizures.”  Id. (quoting Welch,
160 Vt. at 78-79, 624 A.2d at 1110).  But we do not depart from the
standard lightly.  As we have stated before: “this Court will abandon the
warrant and probable-cause requirements, which constitute the standard of
reasonableness for a government search that the Framers established, only in
those exceptional circumstances in which special needs, beyond the normal need
for law enforcement, make the warrant and probable-cause requirement
impracticable.”  Berard, 154 Vt. 306 at 310-11, 576 A.2d at 120-21
(quotation omitted).  If we find a special need, our next step is to “turn
to a balancing of the competing public and private interests at stake.”  Martin,
2008 VT 53, ¶ 21.
A.
¶ 15.        
We announced the “special needs” exception to the warrant requirement of
Article 11 in the context of approving random, suspicionless searches of prison
inmates’ cells.  Berard, 154 Vt. at 311, 576 A.2d at 121.  We
determined that “[r]equiring the State to demonstrate that it has special needs
for a warrantless, suspicionless search or seizure ‘focuses attention on the
nature and extent of those needs and allows the courts . . . to
pursue the necessary balancing test in a manner calculated to interfere least
with preservation of [individual] rights.’ ”  Martin, 2008 VT
53, ¶ 9 (quoting Berard, 154 Vt. at 311, 576 A.2d at 121). 
Once the State has proven its special need, beyond the ordinary needs of law
enforcement, we balance the strength of the State’s need against the privacy
intrusion.  Id.  
¶ 16.        
In the prison context in Berard, we based our conclusion that the
State had met its burden of proving special needs “in part on the inexorable
nature of prison governance in general and in part on the particular
circumstances of the facts found by the trial court.”  154 Vt. at 312, 576
A.2d at 121.  As to the nature of prison governance in general, we found
that “if the prisoners’ right to privacy prevented random prison cell searches,
it would be impossible to accomplish the objectives of guarding against drugs
and other contraband, like illicit weapons, thwarting escape, and maintaining a
sanitary and healthful environment.”  Id. at 312, 576 A.2d at
121-22.  As to the particular circumstances found by the trial court, we
noted the trial court’s statements that “[p]ossession of contraband by inmates
is an ongoing concern among correctional officials,” that the commissioner of
corrections is statutorily obligated to “maintain security, safety and order,”
and that “it is difficult to see how the department [of corrections] could
fulfill its primary objective of the disciplined preparation of offenders for
their responsible roles in the open community, if it did not have an effective
procedure for detecting contraband.”  Id. at 313, 576 A.2d at 122
(quotations and citations omitted).
¶ 17.        
We also found a public-safety-related special need in the context of a
warrantless seizure of a gun from a car that was about to be impounded after a
driving-while-intoxicated stop in State v. Richardson, 158 Vt. 635, 636,
603 A.2d 378, 379 (1992) (mem.).  The seizure was justified by the
“obvious prudence” of removing the gun, in comparison to the “unacceptable
danger to the public at large” if the gun were left in place.  Id.
at 635-36, 603 A.2d at 379.
¶ 18.        
In the case we have often cited as the precursor to our special-needs
jurisprudence, we upheld random roadside sobriety checkpoints as compliant with
Article 11.  Record, 150 Vt. at 90, 548 A.2d at 426.  Such
seizures were acceptable because they “enabled the police to apprehend
intoxicated drivers who may have otherwise posed a serious threat to society.”
 Id. at 86, 548 A.2d at 424.  In addition, Article 11’s
proscription on general warrants was mitigated because “the written police
guidelines prevented arbitrary police conduct, and the scope of the roadblock
was narrowly drawn.”  Id.  
¶ 19.        
In the probation context, although we did not rely on the special needs
test per se, we found that a warrantless (but not suspicionless) search of a
probationer’s home was acceptable in part because of the “special needs of the
state in administering its probation program” and in part because “if a
probation term provides for warrantless searches and the terms of the probation
are narrowly tailored to fit the circumstances of the individual probationer,
the Griffin ‘reasonable grounds’ standard strikes the proper balance between
probationer privacy rights and public protection concerns.”  State v.
Lockwood, 160 Vt. 547, 559, 632 A.2d 655, 663 (1993) (relying on the
reasoning of Griffin v. Wisconsin, 483 U.S. 868, 875-76 (1987), which
held that the special needs of probation supervision allowed for warrantless
searches justified by “reasonable grounds” rather than by probable
cause).  Our reasoning in that case relied on the public-protection goals
of the probation system, as balanced against the diminished privacy rights of probationers. 
Id. at 559-60, 632 A.2d at 663.  
¶ 20.        
Finally, in the context of DNA sampling of convicted felons under 20
V.S.A. § 1933 in Martin, we found special needs beyond the normal
needs of law enforcement.  We borrowed from the reasoning of the New
Jersey Supreme Court under the Fourth Amendment and the New Jersey state analog
and found that “the central purposes of . . . DNA testing
are not intended to subject the donor to criminal charges,” 2008 VT 53,
¶ 16 (quoting State v. O’Hagen, 914 A.2d 267, 278 (N.J. 2007)),
despite the defendants’ insistence that the policy objectives listed in
§ 1931 stated otherwise.[13] 
Rather, we decided that the purposes of “creat[ing] a DNA database
and . . . assist[ing] in the identification of persons at a
crime scene should the investigation of such crimes permit resort to DNA
testing of evidence” are beyond ordinary law enforcement purposes.  Martin,
2008 VT 53, ¶ 16 (quoting O’Hagen, 914 A.2d at 279).  Such a
“long-range special need . . . does not have the immediate
objective of gathering evidence against the offender.”  Id.
(quoting O’Hagen, 914 A.2d at 278).  Recognizing that using DNA to
determine who committed a past crime is fulfilling an ordinary law enforcement
purpose, Martin drew a distinction between past and future crimes in the
paragraph expressing its central holding:
 
We conclude that the O’Hagen reasoning also applies under Article 11,
and that DNA sampling and analysis to assist in identifying persons at future
crime scenes is a special need beyond normal law enforcement.  Vermont’s
DNA database statute has as its stated purpose “to assist federal, state and
local criminal justice and law enforcement agencies in the identification,
detection or exclusion of individuals who are subjects of the investigation or
prosecution of violent crimes.”  20 V.S.A. § 1931.  These purposes
are distinct from the normal law-enforcement activities of investigating
particular people for crimes already committed.
 
Id. ¶ 19 (emphasis
added).  We also pointed to the secondary statutory purpose of
“identifying missing persons” as beyond normal law enforcement.  Id.
¶ 20.  Finally, we found that sampling and indexing DNA from
convicted felons may serve to deter recidivism.  Id.
B.
¶ 21.        
The second step in the special needs analysis is balancing the public
and private interests at stake.  In Berard, we upheld random prison
cell searches by considering “the State’s paramount interest in institutional
security” versus “the inmates’ residuum of privacy rights.”  154 Vt. at
313, 576 A.2d at 122 (quotation omitted).  We acknowledged that, while an
inmate’s “rights may be diminished by the needs and exigencies of the
institutional environment, a prisoner is not wholly stripped of constitutional
protections.”  Id. (quoting Wolff v. McDonnell, 418 U.S.
539, 555-56 (1974)).  We found several factors germane to protecting the
inmates from abusive or arbitrary searches: “(1) the establishment of clear,
objective guidelines by a high-level administrative official; (2) the
requirement that those guidelines be followed by implementing officials; and
(3) no systematic singling out of inmates in the absence of probable cause or
articulable suspicion.”  Id. at 314, 576 A.2d at 122.  We held
that the inmates’ diminished privacy and possessory interests were not
unreasonably burdened by such “routine, random and warrantless search[es],” in
the face of the State’s great need for promoting “institutional
security.”  Id. at 318, 576 A.2d at 124.
¶ 22.        
In Martin, we analyzed the two different privacy intrusions
separately: “(1) the initial sampling by buccal swab, and (2) the subsequent
analysis, indexing, and searching of the information obtained.”  2008 VT
53, ¶ 21.  As to the cheek swab, we found that the invasion was
“minimally intrusive,” relying mainly on our precedent upholding DNA sampling
by buccal swab under a nontestimonial order based on reasonable suspicion. 
Id. ¶ 23 (citing In re R.H., 171 Vt. 227, 762 A.2d 1239
(2000)).
¶ 23.        
Most of our analysis in Martin therefore focused on the second
intrusion—the “analysis, indexing, and searching” component of
§ 1933.  We rejected arguments that the state DNA data bank presages
“an inexorable march . . . to a dystopian future of
eugenics, gene-based discrimination, and other horribles worthy of Aldous
Huxley.”  Id. ¶ 25.  As with the prison search policies
at issue in Berard, we looked to individual privacy safeguards and
restrictions on state actors built into the DNA-sampling statute to conclude
that such totalitarian fears are unfounded.  For example, we determined
that the thirteen DNA loci used to create an individual database profile “are
not associated with any known physical trait” and are used by the State merely
to create “a unique alphanumeric identifier,” useful only to “establish
identity.”  Id. ¶ 26 (quotation omitted).  We further
noted that the statutory scheme provides remedies for wrongful use or disclosure
of confidential information and that we are obligated to presume that the
government follows its own rules unless presented with evidence to the
contrary.  Id. ¶¶ 28-29.  Finally, we recognized that the
searches were “subject to clear administrative guidelines
and . . . performed uniformly on all felons subject to
them.”  Id. ¶ 30.  The DNA-sampling scheme therefore does
not provide opportunity or pretext for the kind of individual harassment
proscribed by Article 11.  Id.  
¶ 24.        
With these limitations in mind, we concluded that “the post-sampling
intrusion on protected privacy interests is closely akin to that occasioned by
the retention and searching of fingerprint records. . . . 
The data retained in the database serve only to prove identity.”  Id.
¶ 31.  We ultimately held that “the DNA sampling statute does not
offend Article 11 as applied to nonviolent
felons . . . .  The statute serves special needs
beyond normal law enforcement and advances important state interests that
outweigh the minimal intrusions upon protected interests.”  Id.
¶ 35.
¶ 25.        
In addition to our decision in Martin, we examine three other
sources of information helpful to our decision.  While no source is
dispositive, all three help frame our analysis and our evaluation of the
arguments of the parties.  They are: decisions from our trial courts,
decisions from other appellate courts around the country, and the decision of
the U.S. Supreme Court in King.  In looking at the last two
sources, we stress that these decisions do not purport to apply the unique
standards of Article 11, but nevertheless are helpful in our analysis.
¶ 26.        
First we look at the five superior court decisions that are on appeal in
this case.  Each of the five lower court opinions consolidated here
distinguished arraignee DNA sampling from convicted felon DNA sampling, which
we upheld in Martin.  All held that under the special-needs
balancing test, as explained in Martin, the state’s need for the DNA
samples at the time of arraignment was outweighed by the defendant’s privacy
interest.  One held that we need not reach the balancing test because the
State did not show a sufficient special need.  On a more complete
evidentiary record, three held that defendant’s privacy interest was enhanced
because the court found that the DNA sample could be used to show more than
identification.
¶ 27.        
The thorough analysis of the trial courts informs our balancing analysis
as discussed infra.  These decisions are in “stark contrast,” post,
¶ 89, with the dissent’s assertion that Martin “almost entirely
controls the instant case.”  Post, ¶ 71.  Because we base
our decision on the balancing analysis, we do not revisit the existence of a
special need as explained in Martin, except to respond to the dissent’s
attempt to enlarge the special need recognized in that decision.  Nor do
we rest our decision on the conclusion of the Chittenden Superior Court,
adopted by the Windsor and Orleans Superior Courts, that the “CODIS loci provide
information beyond mere identity.”  State v. Abernathy, No.
3599-9-11 Cncr, at 24 (Vt. Super. Ct. June 1, 2012).  All parties have
included in their briefs extensive arguments about this conclusion.  We do
not reach those arguments.   
III.
¶ 28.        
Mandatory preconviction DNA sampling is a trending legal topic across
the country; many states have recently passed legislation analogous to
§ 1933(a)(2),[14]
and resulting constitutional challenges are proliferating.  As discussed
earlier, the U.S. Supreme Court has now settled the question of Fourth
Amendment challenges to such laws in King, 133 S. Ct. 1958.  King,
a 5-4 decision, was decided under a standard of reasonableness, weighing the
governmental interest against the degree to which the search intrudes on
privacy.  133 S. Ct. at 1970.  The Court judged the privacy interest
invaded by the buccal swab to be minimal, concluding that “[t]he fact that an
intrusion is negligible is of central relevance to determine
reasonableness.”  Id. at 1969.  Moreover, the Court reasoned
that a person arrested for a felony, the initial trigger under the Maryland
law, has a reduced expectation of privacy.  Id. at 1978. 
Although the Court did not hold that the analysis of the defendant’s DNA is a
second search, as we did in Martin, it noted that the analysis is only
of loci “that do not reveal the genetic traits of the arrestee.”  Id.
at 1979.  The Court also concluded that under the circumstances, intrusion
on the privacy interests involved “does not require consideration of any unique
needs that would be required to justify searching the average citizen.”  Id.
at 1978.  Thus, it held that “the [federal] special needs cases, though in
full accord with the result reached here, do not have a direct bearing on the
issues presented.”  Id.
¶ 29.        
The Court found one primary government interest: “the need for law
enforcement officers in a safe and accurate way to process and identify the
persons and possessions they must take into custody.”  Id. at
1970.  Included in this interest is the right to search incident to an
arrest.  Id. at 1970-71.  The Court explained that the search
for identity is broader than determining the arrestee’s name and social
security number.  Drawing on the use of fingerprints, the Court noted that
identity includes the arrestee’s criminal history and involvement in unsolved
crimes.  Id. at 1971-72.  It includes whether the custody of
the person—for example, because of a history of violence—creates a risk for
detention facility staff, for other detainees, or for the arrested
person.  Id. at 1972.  It includes whether a defendant
presents a risk of flight because of the disclosure of other crimes.  Id.
at 1972-73.  Finally, it includes the extent to which the arrestee is
dangerous to the public.  Id. at 1973.
¶ 30.        
The result of the Court’s balancing is contained in the last paragraph
of the majority opinion:
 
In light of the context of a valid arrest supported by probable cause respondent’s
expectations of privacy were not offended by the minor intrusion of a brief
swab of his cheeks.  By contrast, that same context of arrest gives rise
to significant state interests in identifying respondent not only so that the
proper name can be attached to his charges but also so that the criminal
justice system can make informed decisions concerning pretrial custody.
 Upon these considerations the Court concludes that DNA identification of
arrestees is a reasonable search that can be considered part of a routine
booking procedure.  When officers make an arrest supported by probable
cause to hold for a serious offense and they bring the suspect to the station
to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA
is, like fingerprinting and photographing, a legitimate police booking
procedure that is reasonable under the Fourth Amendment.  
 
Id. at
1980.    
¶ 31.        
King resolved the Fourth Amendment challenge to arrest-based
DNA-sampling statutes.  It could not, of course, determine the
constitutionality under state constitutional provisions.  Despite the
extensive adoption of preconviction DNA-sampling requirements, prior to this
case, no court has decided the issue independently based on a state constitution. 
The Minnesota Court of Appeals in In re Welfare of C.T.L. held, in the
context of a juvenile delinquency action, that a state statute requiring the
juvenile defendant to submit to the taking of a DNA sample where the court has
found probable cause that the juvenile committed a felony violates the Fourth
Amendment to the U.S. Constitution and Article I, Section 10 of the Minnesota
Constitution.  722 N.W.2d 484, 492 (Minn. Ct. App. 2006).  That
decision, however, came before the decision of the Minnesota Supreme Court in State
v. Bartylla, which upheld the Minnesota statute requiring DNA samples from
convicted felons under the Fourth Amendment and held that the Minnesota
Constitution offered no greater protections in this context than the Fourth
Amendment.  755 N.W.2d 8, 18-19 (Minn. 2008).  Given Bartylla,
we cannot view Welfare of C.T.L. as an independent state constitutional
decision.  See also State v. Johnson, 813 N.W.2d 1, 6-7 (Minn.
2012) (explaining that, in Bartylla, the court interpreted the Minnesota
Constitution coextensively with the Fourth Amendment).  The remaining
state court decisions are based on the Fourth Amendment and not on an
independent state constitutional ground.  See Mario W. v. Kaipio,
281 P.3d 476 (Ariz. 2012); People v. Lowe, 165 Cal. Rptr. 3d 107 (Ct.
App. 2013) (following the U.S. Supreme Court decision in King), petition
for review granted by People v. Lowe, 320 P.3d 799 (Cal. 2014); State
v. Franklin, 76 So. 3d 423 (La. 2011); King v. State, 42 A.3d 549
(Md. 2012), rev’d sub nom. Maryland v. King, 133 S. Ct. 1958 (2013); Anderson
v. Commonwealth, 650 S.E.2d 702 (Va. 2007).
¶ 32.        
A number of these out-of-state decisions are helpful to our analysis,
even though they are based on the Fourth Amendment, because they analyze many
of the arguments we face in our state constitutional decision.  We are
particularly influenced by the Maryland Court of Appeals opinions in King v.
State and the opinions in the closely divided en banc decision of the U.S.
Court of Appeals for the Third Circuit in United States v. Mitchell, 652
F.3d 387 (3d Cir. 2011), upholding the federal DNA sample statute.  We
have also drawn from Welfare of C.T.L. and Mario W. in the
decision that follows.
¶ 33.        
The State urges us to deny the constitutional challenge based on the
rationale of King—that the DNA sample requirement is part of a search
incident to an arrest, and more particularly a booking search, and is
constitutionally indistinguishable from a fingerprint requirement. 
Instead, for three main reasons, we reject that King’s analysis controls
whether the Vermont statute complies with Article 11.  The third
reason—the difference between the requirements of Article 11 and the Fourth
Amendment—is the fundamental one, but the first two provide important context
for that analysis.
A.
¶ 34.        
First, the Maryland statute challenged and upheld in King is
triggered by arrest, and the Court’s rationale is based on the right of law
enforcement officers to search incident to an arrest, particularly where the
alleged criminal will be incarcerated pending trial.  King, 133 S.
Ct. at 1970-71.  Thus, the Court emphasizes the need to identify
accurately the person who is being arrested and charged with a crime; to know
that person’s history; to know the risks the person presents for facility
staff, other detainees and the arrested person; to ensure the arrestee will
appear for trial; and to assess the danger the arrestee presents to the
community.  Id. at 1971-73.  The Vermont statute is triggered
by the judicial finding of probable cause “at arraignment” for a felony, a
determination that normally follows the defendant being brought to court and
the preparation of an information.  20 V.S.A. § 1933(a)(2); see V.R.Cr.P.
5(c).  The defendant may never be arrested, and even if arrested, may have
been released from pretrial detention.  Not surprisingly, identification
of arrested persons is not included in the stated purposes for the Vermont
DNA-collection law.  See 20 V.S.A. § 1931.  Nor is it a special need
identified in Martin. 
¶ 35.        
The mismatch between the triggers in the Maryland and Vermont laws means
that the Supreme Court’s rationale in King applies to only some of the
defendants covered by Vermont’s statute.  Further, limitations contained
in the Vermont law—the requirement of a judicial probable-cause determination,
the limitation to felonies and the expungement of the DNA evidence where
defendant is not convicted—are insignificant under the Supreme Court decision.[15] 
B.
¶ 36.        
Second, identification of the arrestee, even if the defendant is
arrested and continued in pretrial detention, is tangentially accomplished by
post-arraignment DNA collection and analysis.  The current system of
photographs and fingerprints fully responds to the need for identification of
the defendant.  In the many cases now consolidated in this appeal, the
State has identified none in which there is a need for more accurate
identification.  By the time that DNA is analyzed, the risks connected
with a defendant have been determined and reflected in pretrial detention
provisions.  As the Rutland Superior Court observed, “it is unlikely that
a DNA sample, taken post-arraignment, will be of much assistance” to ensure the
accurate identity of the person arrested.  For this reason, identification
of the defendant was not included as a special need in Martin.
¶ 37.        
The Supreme Court acknowledged this limitation but answered that (a)
identification information, even if untimely, could become useful, and (b)
improvements in technology will make DNA analysis quicker and more
timely.  King, 133 S. Ct. at 1974, 1977.  The Court reasoned
that “[r]egardless of when the initial bail decision is made, release is not
appropriate until a further determination is made as to the person’s identity
in the sense not only of what his birth certificate states but also what other
records and data disclose to give that identity more meaning in the whole
context of who the person really is.”  Id. at 1973-74.  The
Court went on to note that it takes considerable time to arrange pretrial
release, between 27 and 112 days in the federal system.  During this time
period, the Court observed that “more about the person’s identity and background
can provide critical information relevant to the conditions of release and
whether to revisit an initial release determination.”  Id. at
1974.  These statements appear to be highly inapplicable in a jurisdiction
like Vermont, where nonarrest or pretrial release is the norm and release
pending trial is often accomplished in a matter of hours or a few days. 
See 13 V.S.A. § 7554(a) (stating that “[a]ny person charged with an
offense, other than a person held without bail . . . [for
life imprisonment felonies and certain other violent felonies] shall at his or
her appearance before a judicial officer be ordered released pending trial in
accordance with this section,” with highest priority placed on release on
personal recognizance or unsecured appearance bond).  Moreover, King’s
search for relevant information appears to have no boundaries in the
determination of “who the person really is,” thus stripping the charged
individual of all privacy interests.  Thus, the King rationale is
an invitation to broader DNA collection and arrests for purposes of obtaining a
DNA sample rather than only DNA collection for determining risk associated with
a need for detention.  This rationale would justify a full analysis of the
DNA sample, not only an analysis of the loci limited to identification. 
¶ 38.        
We are unimpressed by King’s first answer—that identification
information, even if untimely, could become useful.  In State v. Handy,
2012 VT 21, 191 Vt. 311, 44 A.3d 776, an Article 11 decision after Martin,
we considered the constitutional validity of a statute that requires defendants
convicted of a sex offense to submit to testing for sexually transmitted
diseases.  See 13 V.S.A. § 3256.  The ostensible purpose of the
requirement was to enable the victim to determine whether he or she was at risk
of contracting a sexually transmitted disease from the perpetrator.  On
this basis, the trial court had upheld the requirement without an evidentiary
hearing.  We found from the legislative history of the statute that it had
been enacted to obtain federal funding and the testimony presented to the
legislative committees indicated that the requirement provided “no medical
benefit for victims” because the testing was too late to respond to the
need.  Handy, 2012 VT 21, ¶¶ 19-21.  We indicated that if
obtaining federal funding were the sole governmental interest supporting the
testing requirement, it would be constitutionally “suspect.”  Id.
¶ 22.  We held, however, that the purpose to give victims “peace of
mind” was sufficient to uphold the statute in the balancing analysis.  Id.
¶ 23-24.  The relevant point of Handy is that our Article 11
analysis requires a valid and timely governmental interest, whatever the
superficial governmental interest that is asserted.  We do not find here
that untimely information gathering is a valid interest. 
¶ 39.        
As to King’s second answer—that improvements in technology will
make DNA analysis quicker and timelier—we are unwilling to speculate on the
different functionality that improvements in technology and systems will bring,
just as we are unwilling to predict what information can be found in the DNA
analysis even where the prediction is supported by expert testimony, as in the
record of the Chittenden Superior Court hearing.[16]  Based on current experience, we
understand that the chemistry of the decision we are making may change in
multiple directions.  The technology may better accomplish law enforcement
goals but the invasion of privacy may change and increase, and the rules in
place to protect legitimate privacy interests may become more fragile. 
Further, the Legislature may again amend the statute to redefine the government
interests and methods as well as the protection of privacy interests.  For
example, under the current statutory scheme, the State holds indefinitely the
DNA sample even though the current authorized use is very specific and
limited—but, in the future, the Legislature may authorize a broader use of the
samples. 
¶ 40.        
We must hold that our decision defining and enforcing Article 11 values
and policy is based on the circumstances we encounter when the decision is made
and on the statute before us.  If those circumstances change
substantially, we will no doubt encounter this question, or a variation of it,
again and view it anew. 
C.
¶ 41.        
The third and most important reason to reject the King analysis
is that it is inconsistent with precedents defining the underlying policies of
Article 11.  King represents a large expansion of law enforcement’s
power to search incident to an arrest.  As that doctrine developed in Chimel
v. California, the power to search incident to an arrest, without a
warrant, is limited to the person arrested and the area within the immediate
control of the person arrested.  395 U.S. 752, 763 (1969).  In United
States v. Robinson, the Supreme Court explained that Chimel provided
a bright-line rule and a search incident to arrest “requires no additional
justification.”  414 U.S. 218, 235 (1973).  In United States v.
Edwards, the Court explained that property available to be searched at the
time of arrest can be searched later at the place of detention, even if the
search does not actually occur for some time after the arrested person’s
detention.  415 U.S. 800, 807-08 (1974).  In reaching this
conclusion, the Court quoted from the U.S. Court of Appeals decision in United
States v. DeLeo, 422 F.2d 487, 493 (1st Cir. 1970):  “While the legal
arrest of a person should not destroy the privacy of his premises, it does—for
at least a reasonable time and to a reasonable extent—take his own privacy out
of the realm of protection from police interest in weapons, means of escape,
and evidence.”  Edwards, 415 U.S. at 808-09.  Also relevant in
this line of cases is New York v. Belton, which held that “when a
policeman has made a lawful custodial arrest of the occupant of an automobile,
he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile,” including any containers therein.  453
U.S. 454, 460-61 (1981) (footnotes omitted), modified by Arizona v. Gant,
556 U.S. 332, 344 (2009) (holding that searching the passenger compartment of a
vehicle incident to arrest is only lawful if the area is within reaching
distance of the arrestee).
¶ 42.        
In State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38, and State
v. Neil, 2008 VT 79, 184 Vt. 243, 958 A.2d 1173, this Court rejected much
of this federal search-and-seizure jurisprudence in applying Article 11 of the Vermont
Constitution.  Bauder specifically rejected the bright-line
approach of Belton as “an adequate basis for relaxing the fundamental
limitation on governmental power represented by the warrant requirement.” 
2007 VT 16, ¶ 20.  Thus, it required that in order to avoid the
warrant requirement, the officers must demonstrate that the search is needed
because of exigent circumstances—to secure the safety of the officers or to
preserve evidence of a crime.  Id. ¶ 22.
¶ 43.        
In Neil, the defendant was arrested on an outstanding arrest
warrant issued because the defendant failed to pay a small fine.  After
the arrest, the officers patted the defendant down and found a rolled-up bill
with white powdery residue on it and a closed black pouch which they opened to
find cocaine.  In holding that Article 11 precluded a warrantless search
of the pouch, this Court rejected the bright-line holding of United States
v. Robinson as applicable to Article 11.  We held that “the police
must get a search warrant before searching a closed container unless
‘exceptional’ circumstances—risk of undue delay, destruction of evidence, or
danger to officers—make getting a warrant impracticable.”  2008 VT 79,
¶ 7.  We explained why the case did not meet the standard of
“exceptional circumstances”:
[T]he
exigency must be factually and narrowly tied to the circumstances that rendered
a warrant application impracticable.  Here, the officers knew defendant
and knew he had no history of violent behavior or carrying weapons.  The
evidence does not show, nor is it argued, that the officers subjectively
believed that the circumstances necessitated a warrantless search.  The
State concedes that the pouch was not threatening or suspicious.  With
defendant in custody, once the officers seized the pouch, any danger to the
officers or the public was eliminated.
 
Id. ¶ 13 (citation omitted).  
¶ 44.        
We find a broad warrantless-search authorization, under the theory that it
is a search incident to an arrest, to be inconsistent with the requirements of
Article 11 as we have developed them.  To the extent we have recognized
the validity of a warrantless search incident to an arrest, it has been in
cases where exigent circumstances were present.  While it is possible that
the fruits of a DNA search will produce information bearing on conditions of
release or confinement with respect to a particular defendant, that possibility
alone is insufficient to justify a warrantless DNA search of every defendant,
with no distinction among those who will be searched.
¶ 45.        
In reaching this conclusion, we recognize that we have never held that a
warrantless booking search of a detainee’s person or property is inconsistent
with Article 11 or that routine fingerprinting of arrestees is prohibited by
Article 11.  However we decide the validity of these routine practices
under Article 11, they do not justify the DNA sample capture involved
here.  We do not equate a procedure that takes a visible image of the
surface of the skin of a finger with the capture of intimate bodily fluids,
even if the method of doing so is speedy and painless.  More important,
despite the occasional usefulness of DNA samples for ordinary identification as
described in King, the real functionality, and statutory purpose, is to
solve open criminal cases or ones that may occur in the future.  While
part of this functionality may respond to a special need as we held in Martin,
it is far afield from the immediate concern for the protection of arresting
officers or the destruction of evidence, the concerns underlying our
search-incident-to-arrest doctrine.  The real expansion of warrantless
search power in King is “its reimagination of the idea of ‘identity’ to
include criminal history and other information.”  E. Murphy, License,
Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L.
Rev. 161, 177 (2013).  Despite the assurances of the Court in King,
it is difficult to see any limit on what information may be gathered about an
arrestee and the effect of that information gathering on the decision whether
to arrest.
¶ 46.        
The Court in King held that its decision was not grounded on its
special-needs jurisprudence, and that there need not be a special need to
justify the search under the Maryland statute.  133 S. Ct. at 1978. 
Our conclusion from the foregoing analysis of the King rationale is that
the Vermont DNA-collection statute can be upheld under Article 11 only if it
meets the requirements of our special-needs doctrine, as defined primarily in Martin.
IV.
 
¶ 47.        
Our special-needs test requires that (1) the statute fulfills a special
need, beyond the normal needs of law enforcement, and that (2) the balance
between public interests and private interests at stake weighs in favor of
allowing the search or seizure.  Martin, 2008 VT 53,
¶ 9.  We turn to that analysis.  We focus, as we did in Martin,
on the search involving the “analysis, indexing, and searching of the
information obtained” from the DNA sample, rather than the search involving the
cheek swab itself.  Id. ¶¶ 21-22.
¶ 48.        
The State has articulated no special need for preconviction DNA sampling
beyond the special needs we found in Martin for postconviction DNA
sampling.  We held in Martin that the main special need for
postconviction DNA sampling is that the report will “assist in identifying
persons at future crime scenes” and this need is “a special need beyond normal
law enforcement.”  Id. ¶ 19.  We distinguished this from
“normal law-enforcement activities of investigating particular people for
crimes already committed.”  Id.  We also identified secondary
special needs of identifying missing persons, 20 V.S.A. § 1931, and
deterrence, because the convicted person knows his or her DNA record is
available for comparison to any evidence left at a future crime scene.  Martin,
2008 VT 53, ¶ 20. 
¶ 49.        
As noted earlier, despite the attenuation of the special needs
identified in Martin, we do not ground our decision on the absence
of a special need.  As with Martin¸ our decision rests on the
balancing of interests in the second prong of the test.  We do, however,
recognize the more limited special need in the balancing of interests that
follows.  In this case, each defendant’s privacy interest is greater
because he or she has not been convicted.  At the same time, the State’s
interest is less weighty.  The issue then is whether the greater privacy
interest of the individual and the lesser interest of the State are such that
the balance is sufficiently different from that in Martin to invalidate
the statute.
A.
¶ 50.        
We address first the State’s interests.  In order to determine its
weight, we first define the State’s interests in collecting the DNA information
at arraignment and, as a result, expanding the class of persons from whom DNA
is collected.  This class includes two subclasses: (1) persons who will be
subject to the collection requirement on conviction, but under the statutory
amendment will be subject to the requirement sooner; and (2) persons who will
be subject to the requirement at arraignment but will not be convicted and
would not have been subject to a collection requirement before the amendment to
the statute.   
¶ 51.        
Before we address the subclasses, we stress two points.  First,
irrespective of whether a defendant is ultimately convicted, the statutory
amendment advances in time the point at which DNA is collected but generally
produces the same result as the original statute at the time that the criminal
case is over.[17] 
Although the end result may be the same for both subclasses, there will be a
differential overall impact on the two subclasses, as discussed below.
 The State’s interest that we are weighing involves only this limited
period in which the case is pending.
¶ 52.        
Second, the special needs we recognized in Martin do not include
“investigating . . . [defendant] for crimes already committed.”[18]  2008 VT 53, ¶ 19.  While
we have no doubt that the State will investigate past crimes through DNA
collected from defendants, the ability to do so does not represent a legitimate
interest that we will weigh in the balancing process.  The interests to be
weighed are those in investigating future crimes, deterring criminal conduct,
or identifying missing persons.  Id. ¶ 20.  Two of these
special needs, including the main one—investigating future crimes—involve a
defendant’s conduct after arraignment on the charge that creates the
DNA-sampling requirement.  Because of our first point, that conduct must
occur between the time of arraignment and the time the criminal case is
over.  The State’s interests we are weighing involve only investigating or
deterring criminal conduct during that period or identifying missing persons.
¶ 53.        
With those points in mind, we address the subclasses.  For the
former subclass, the issue is only the timing of the requirement.  Under
the statutory amendment, the requirement to give the DNA sample will come
sooner than conviction.  The State’s interest is thus primarily in having
the DNA profile earlier, to deter criminal conduct of a type where DNA would be
helpful to determine the perpetrator, occurring between arraignment and the end
of the criminal case, and for comparison with DNA left at a crime scene during
this period.  Secondarily, the State’s interest is in earlier DNA
comparison with that of a missing person.  Of course, with respect to the
primary interest in comparing DNA with that from future crime scenes, the
effect of the statutory amendment is only timing, because the preexisting
statute would allow DNA collection on conviction.  We recognize that the
State also has an interest in accurate identification of persons who are
subject to conditions of release, or those who are incarcerated pretrial—but as
discussed above, the need for more accurate identification is rare and
apparently has not arisen among the large numbers of defendants joined in this
case.  We also note that conditions of release or pretrial incarceration
generally impair the ability of a defendant to commit future crimes, and the
weight of the State’s interest in solving and preventing future crimes through
DNA collection is necessarily lower.  Moreover, as a general observation,
the State has not shown why quicker access to the DNA is a weighty interest,
and we cannot find it to be so.
¶ 54.        
The situation with respect to the second subclass of persons—those not
convicted of a qualifying crime—is different.  The collected DNA sample is
expunged if the criminal case ends without a conviction for a qualifying crime,
although the record of any match is retained.  Therefore, without the
amendment, the State loses the ability to use the DNA to solve crimes committed
after arraignment and before the end of the criminal case, as well as the
deterrent effect with respect to those crimes.  The State also loses the
ability to match defendant’s DNA to that of missing persons.  It is in
these situations that the State’s interest in the amendment has the greatest
weight. 
¶ 55.        
The dissent rejects the above analysis, arguing that “the State’s
special need is the same” for felony convicts as it is for arraignees.  Post,
¶ 73.  In response, we note that this litigation is solely about the
period between arraignment and conviction or nonconviction—nothing in our
decision will affect DNA-collection requirements at conviction.  Further,
we have not required the State to provide an additional special need beyond
those recognized in Martin.  What we have examined, as we are
required to do under the Martin analysis, is the weight of the special
needs with respect to arraignees in the context of a law that will require DNA
collection if they are ultimately convicted of felonies.  We would have
conducted the same analysis if we had combined the consideration in this
decision and in Martin—if the Legislature had adopted in the first
instance a DNA-collection requirement that applied to arraignees—because the
privacy interests of arraignees are stronger than those of convicted
defendants. 
¶ 56.        
Finally, we note that the Legislature has recognized the limited weight
of the State’s interest in these samples by requiring expungement of the sample
and profile when the adjudication is completed without a conviction of a
qualifying crime.[19] 
Thus, it has truncated the main special need found in Martin by
requiring expungement where there is no conviction for a qualifying crime and
preventing comparison with DNA gathered at future crime scenes.  20
V.S.A. § 1940(a).  As the Minnesota Court of Appeals held in Welfare
of C.T.L.:  “This requirement [of expungement] suggests that the
legislature has determined that the state’s interest in collecting and storing
DNA samples is outweighed by the privacy interest of a person who has not been
convicted.”  722 N.W.2d at 491.
B.
¶ 57.        
Next, we turn to defining the privacy interest to be weighed in the balancing
test.  The privacy interest of the preconviction defendant is greater than
the interest of one who has been convicted because a preconviction defendant
has a presumption of innocence.  13 V.S.A. § 6502; see State
v. Camley, 140 Vt. 483, 488, 438 A.2d 1131, 1133-34 (1981) (explaining
operation of 13 V.S.A. § 6502 at trial); see also Coffin v. United
States, 156 U.S. 432, 453 (1895) (“The principle that there is a
presumption of innocence in favor of the accused is the undoubted law,
axiomatic and elementary, and its enforcement lies at the foundation of the
administration of our criminal law.”).  Indeed, a substantial percentage
of persons from whom DNA samples will be taken will never be convicted of a
qualifying offense.  The judicial finding of probable cause at arraignment
is no substitute for a criminal conviction—the watershed moment that strips a
defendant of the presumption of innocence and related privacy
protections.  In saying this, we do recognize that pretrial arraignees
have a legitimate expectation of privacy that is less than the population as a
whole.  The lesser expectation may result in temporary incarceration or
conditions of release that result in limitations on privacy. 
¶ 58.        
The restrictions we place on the liberties of pretrial defendants,
however—through pretrial detention, bail, or conditions of release—while at
times substantial, are all tailored to ensure the State’s need for the
defendant’s presence in court and the State’s need to reduce immediate risks to
public safety.  E.g., State v. Roessell, 132 Vt. 634, 636, 328 A.2d
118, 119 (1974) (per curiam) (“[W]here there is sufficient evidence to
demonstrate a substantial risk that a defendant will not show up for trial,
conditions, monetary or otherwise, to insure his return are indicated[]
and . . . where there is a danger to the public, conditions
for the protection of public safety are appropriate.”); see also State v.
Webb, 132 Vt. 418, 422, 320 A.2d 626, 629 (1974) (“The imposition of
physically restrictive conditions of release pending trial upon a defendant
whose release has been determined to constitute a danger to the public weighs
heavily against the presumption of innocence.”). 
C.
¶ 59.        
This brings us to a balancing of the interests of the defendant and the
State.  In doing so, we start with the generalization, adopted by the U.S.
Supreme Court in King and the dissent in this case, that the interests
are the same for DNA collection as for fingerprinting and, if anything, the
State’s interest in DNA is greater than for fingerprinting because of DNA’s
greater utility.[20] 
Putting aside that one involves a bodily invasion and the other does not, we do
not now believe we can equate fingerprinting and DNA retrieval. 
Fingerprints can show only identification, and they have limited functionality
in solving old cases.  DNA samples provide a major new tool for
investigation of open and future crime cases, as well as correcting wrongful
convictions in closed cases.[21] 
It is also important to note that the DNA samples being seized provide a
massive amount of unique, private information about a person that goes beyond
identification of that person.  See Martin, 2008 VT 53,
¶ 24.  Martin framed the DNA sampling scheme in terms of two
searches: “[1] the initial taking of the DNA sample, and [2] the
subsequent analysis, storage, and searching of the DNA profile.”  Id.
¶ 14 (emphasis added).  Martin is silent on the storage of the
sample, which is retained by the State, apparently indefinitely.  Even
after the identification profile is created from the DNA sample and is made
part of the national database, the State retains the DNA sample.  Neither
the statutory purposes, nor the State’s asserted justifications for the law,
provide any rationale for retaining the DNA sample once the profile has been
created.  While current law limits use of the sample, that law can be
amended to allow greater use; the retention of the DNA sample suggests that
expanded use is possible in the future.  We assume for purposes of this
opinion that restrictions on use will be enforced, but the current restrictions
are only a partial answer to the extent of the invasion of privacy as long as
the State continues to hold the DNA samples.[22] 
Contrary to the dissent, we read defendants’ arguments as raising this feature
of the statute as a factor weighing in the balancing test.
¶ 60.        
The point of the comparison is that DNA collection and use under the
statute is a significantly greater invasion of the defendant’s privacy than
that involved in fingerprinting, even if the DNA samples were expunged in all
circumstances after the DNA profile is taken.  We do not accept the
widespread use of pretrial fingerprinting of defendants as deciding this case.
¶ 61.        
From the foregoing analysis, the main weight of the State’s interest
involves cases where the defendant is not convicted of a qualifying crime and
the State never has the opportunity to gather a DNA sample.  In these
cases, however, the defendant’s privacy interest is the greatest.  The
Legislature recognized that interest by providing for expungement of DNA samples
where the criminal case has ended without conviction for a qualifying
crime.  The State has an interest in identifying defendants in its
custody, as King held, but that interest is of little weight here. 
Traditional methods have identified defendants in the cases involved here, and
many are not incarcerated in any event.  
¶ 62.        
Because of the limited weight of the State’s interest in the expansion
of the DNA sampling requirement to defendants on arraignment for a qualifying
crime, and the greater privacy interest of the defendant at that stage of the
adjudication, we—like the Minnesota Court of Appeals in Welfare of C.T.L.—conclude
that the balance tips to the defendant.  We also concur in the analysis of
the Arizona Supreme Court that “[h]aving a DNA profile before adjudication may
conceivably speed . . . investigations [of other
crimes]. . . .  But one accused of a crime, although having
diminished expectations of privacy in some respects, does not forfeit [constitutional]
protections with respect to other offenses not charged absent either probable
cause or reasonable suspicion.”  Mario W., 281 P.3d at 483.
¶ 63.        
The marginal weight of the State’s interest in DNA collection at the
point of arraignment, balanced against the weight of the privacy interest
retained by arraignees prior to conviction, persuades us to hold that 20
V.S.A. § 1933(a)(2), and associated sections, which expand the
DNA-sample requirement to defendants charged with qualifying crimes for which
probable cause is found, violates Chapter I, Article 11 of the Vermont
Constitution.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 64.        
REIBER, C.J., dissenting.   In holding that 20 V.S.A.
§ 1933(a)(2) violates Article 11 of the Vermont Constitution, the majority
overstates the privacy interests of felony arraignees and understates the
government’s important interests in identifying perpetrators and excluding the
innocent—objectives that DNA analysis can accomplish with unparalleled
accuracy.  Consequently, the majority unduly restricts the State’s ability
to make good on its fundamental duty to do justice through enforcement of the
law.  I therefore respectfully dissent.
¶ 65.        
This case pertains to DNA identification of felony arraignees.  In
doing so, it provokes the deeper question of how to balance law enforcement
efforts and privacy concerns in an age of rapidly evolving technology. 
This Court’s decision in State v. Martin provided a blueprint for
preserving these competing interests.  2008 VT 53, ¶ 35, 184 Vt. 23,
955 A.2d 1144.  Martin recognized that, because DNA contains a
tremendous amount of indisputably private physiological information, those
accused, arraigned and convicted have a reasonable expectation of privacy in
DNA—apart from any initial physical intrusion—and therefore an Article 11
search analysis applies.  Id. ¶ 14.  Martin’s
acknowledgment of the privacy interests, couched within the language of the
statute, led to our consequent focus on the scope of the search as a limiting
principle.  This approach is prescient for future cases at this thorny
intersection of law and technology.
¶ 66.        
Martin accomplished a sensible balancing that the majority would
now uproot.  The majority says it is applying the analysis in Martin
to the facts before us, but creates ambiguity where none exists.  Simply
stated: for the same purposes articulated in the statute and under Martin’s
precedent, felony arraignees have a reduced privacy expectation compared to the
general population based on the fact that a neutral magistrate has found
probable cause that they committed a serious crime.  Although no one
disputes that arraignees have a reasonable expectation of privacy in personally
intimate DNA, the scope of the search here is strictly limited by law to
identifying information.  Considering the explicitly limited scope of the
search under the statute, it is a stretch for the majority to construe Martin’s
holding otherwise.
¶ 67.        
The majority employs reasoning that overlooks the common-sense
distinctions between felony arraignees and the population at large and between
personal DNA information and merely identifying DNA information.  The
majority’s restriction on the State’s ability to use the best means at its
disposal for identification, DNA evidence, is unnecessary and to the detriment
of the criminal justice system as a whole.  
I.       
 
¶ 68.        
Article 11 presumptively requires a warrant, supported by probable
cause, as a prerequisite to search or seizure.  State v. Berard,
154 Vt. 306, 310-11, 576 A.2d 118, 120-21 (1990).  A departure from this
requirement is warranted “only in those exceptional circumstances in which
special needs, beyond the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable.”  Id. (quotations
omitted).  Once the State has proven a special need, “we balance the need
served against the privacy intrusion at stake.”  Martin, 2008 VT
53, ¶ 9.  
¶ 69.        
In Martin we found adequate reason for such a departure, holding
that the expansion of Vermont’s DNA database by statute from violent to
nonviolent convicted felons complied with the requirements of Article 11. 
Id. ¶ 35.  We determined that the purpose of DNA
identification—“to create a DNA database and to
assist in the identification of persons at a crime scene should the
investigation of such crimes permit resort to DNA testing of evidence”—was a
special need beyond normal law enforcement.  Id. ¶ 16
(quoting State v. O’Hagen, 914 A.2d 267, 279 (N.J. 2007)).  We held that
the Vermont statute was not concerned with ordinary law enforcement because it
sought “to use DNA to accurately and
efficiently identify persons in a variety of contexts, including subsequent
criminal prosecutions.”  Id. ¶ 20.  In making this
distinction, we emphasized that “[a]lthough the
enumerated purposes [of the statute] may involve law enforcement to some
degree, the central purposes of the DNA testing are not intended to subject the
donor to criminal charges.”  Id. ¶ 16 (quoting O’Hagen,
914 A.2d at 278).  We endorsed the rationale given by the Second Circuit
Court of Appeals, which in approving a similar statute found it “crucial that
the state, in collecting DNA samples, is not trying to determine that a
particular individual has engaged in some specific wrongdoing.  Although
the DNA samples may eventually help law enforcement identify the perpetrator of
a crime, at the time of collection, the samples in fact provide no evidence in
and of themselves of criminal wrongdoing, and are not sought for the
investigation of a specific crime.”  Id. ¶ 18 (quoting Nicholas
v. Goord, 430 F.3d 652, 668-69 (2d Cir. 2005)).  Finally, we noted
that the statute at issue in Martin did not perpetrate “the principal
evil sought to be remedied by Article 11,” which is the issuance of general
warrants that vest state officers “with unlimited
discretion to intrude upon the privacy interests of particular
individuals of their choice without particularized suspicion, in the hope of
immediately discovering wrongdoing.”  Id. ¶ 18.  Having
found a special need, we balanced the privacy interests of felony convicts in
both the initial buccal swab and the DNA profiling against the State’s interest
in accurate identification of future criminal perpetrators.  We concluded
that the State’s important interests outweighed felons’ minimal privacy
interests.  Id. ¶ 35.
¶ 70.        
In segmenting the steps employed to extract information from the
designated group, and the objective to be accomplished from the information
collected, Martin’s approach began to address the complexities
introduced by technological developments in search and seizure
capabilities.  See United States v. Weikert, 504 F.3d 1, 16-17 (1st
Cir. 2007) (“[I]t may be time to reexamine the proposition that an individual
no longer has any expectation of privacy in information seized by the
government so long as the government has obtained that information
lawfully.”).  Martin established, in accord with many courts, that
there is a reasonable expectation of privacy in the personal information
contained within DNA,[23]
and that DNA analysis is a search under Article 11.  It confirmed that the
Article 11 inquiry is driven by the scope of the search—here, the identifying
information of felony arraignees—and not by potential informational uses
prohibited by statute.  2008 VT 53, ¶ 25 n.10.  Beyond identity,
there is, of course, other information contained in DNA samples that is
protected, where personal interests are heightened and privacy rights
attach.  Such additional analysis is not addressed in the statute or the
case and controversy before us and should not be presumed constitutional under Martin’s
holding.  See Maryland v. King, 133 S. Ct. 1958, 1979 (2013) (“If
in the future police analyze samples to determine, for instance, an arrestee’s
predisposition for a particular disease or other hereditary factors not
relevant to identity, that case would present additional privacy concerns not
present here.”).  
II.
¶ 71.        
Though the majority purports to rule today in the name of privacy, it
does not engage the possibility that the approach in Martin and similar
cases might better balance law enforcement prerogatives and privacy rights in
our search and seizure jurisprudence.  Indeed, one would have to be
forgiven for not realizing that Martin almost entirely controls the
instant case—the only difference being that the population targeted by the DNA
identification statute has been expanded from felony convicts to felony
arraignees.  The minimal intrusion of the buccal swab, combined with
recognition that advances in genetics might someday allow scientists to glean
additional information from so-called “junk” or noncoding DNA,[24] informed Martin’s central
consideration that DNA samples are analyzed for the limited purpose of
confirming or excluding identity, and that use for other purposes is
illegal.  2008 VT 53, ¶ 25-32. The majority acknowledges Martin’s
holding, but then proceeds to dislodge its careful balancing of public and
private objectives.  Where the majority does not rehash issues decidedly
foreclosed by Martin, its analysis of the State’s special need and its
balancing of the State and private interests is flawed in several respects.
A.
¶ 72.        
First, the majority misconstrues the State’s special need.  The
majority underestimates the value of DNA evidence and its superiority to other
methods of identification, particularly as applied to felony arraignees, who,
in contrast to arrestees, are subject to a neutral magistrate’s finding that
probable cause exists to support a charge of a serious crime.  This is a
finding denoting a matter of substantial public interest.
¶ 73.        
DNA identification fulfills the State’s special need to identify
perpetrators at crime scenes, exonerate the innocent, deter crime, and identify
missing persons.  Id. ¶¶ 15-20.  The primary purpose of
the DNA sampling—creation of a database with identification
information—signifies a “long-range special need that does not have the immediate
objective of gathering evidence against the offender.”  Id.
¶ 16 (quoting O’Hagen, 914 A.2d at 279).  Because DNA
identifying information is not inherently incriminating, and is not collected
as part of an ongoing investigation that specifically targets defendants, the
DNA sampling here does not fulfill ordinary law enforcement purposes.
 Although this case goes one step further than Martin, the State’s
special need is the same, and applies to felony convicts as well as
arraignees.  
¶ 74.        
It is axiomatic that Article 11
requires a relation between the State’s special need and the nature and extent
of the intrusion.  See id. ¶ 9; Berard, 154 Vt. at 311,
576 A.2d at 121.  The mere fact that a population has a reduced privacy
interest does not automatically justify suspicionless searches.  See Goord, 430 F.3d at 667 (noting
that suspicionless searches cannot be justified merely on basis of reduced
privacy, especially “in light of the wide swath of the general population who
at one point or another has had a reduced expectation of privacy”); see also King, 133 S. Ct. at 1979 (cautioning that
Court does not “suggest that any search is acceptable solely because a person
is in custody” and explaining that the level of intrusion must be taken into
account).  
¶ 75.        
Here, felony arraignment is a watershed event that signals that “probable cause exists to remove an individual from the
normal channels of society and hold him in legal custody.”  King,
133 S. Ct. at 1971.  The court’s independent probable-cause finding
is a judicially determined and constitutionally
sufficient conclusion that, as a matter of the required probability analysis,
there is sufficient evidence to support a charge that an arraignee has
committed a serious crime.  Such a conclusion thus strengthens the
nexus between the State’s need for DNA identification and the class subject to
the intrusion.[25] 
Such a finding also distinguishes DNA profiling of felony arraignees, in which
the State has a strong interest, from profiling of
the general population or those who have been arrested.  See State v.
Lockwood, 160 Vt. 547, 559, 632 A.2d 655, 658 (1993) (holding that a
warrantless search program, as applied to probationers, “permits a degree of
impingement upon privacy that would not be constitutional if applied to the
public at large” (quotation omitted)). 
Given the judicially-confirmed probable cause beyond mere suspicion, the
purpose of the statute—to identify persons who have committed crimes in the
past and those at future crime scenes—has ample relation to the class of
persons sampled.      
¶ 76.        
The State’s need to identify defendants here is particularly important
in light of the consequences of felony arraignment.  The majority rejects King’s
reasoning that, under the Maryland statute, DNA identification is necessary to
accurately process arrestees into custody, because it contends that such
identification is unnecessary by the time a defendant reaches the arraignment
stage.  Ante, ¶¶ 36-39.  But the need for accurate
identification is more pressing at arraignment than at arrest, not less. 
Under long-settled law, once arraigned, an accused may be detained with or
without bail, placed in home detention, or released subject to various
conditions.  See 13 V.S.A. §§ 7551-7554.  Despite the majority’s
assurance that “nonarrest or pretrial release is the norm” in Vermont, ante,
¶ 37, this exercise of the State’s police power must nevertheless be
undertaken carefully and judiciously.  Proper identification of criminal
defendants, using the most accurate means available, is fundamental to the
State’s responsible use of its power.  See Hiibel v. Sixth Judicial
Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177, 191 (2004) (“In every
criminal case, it is known and must be known who has been arrested and who is
being tried.”).
¶ 77.        
The majority’s attempt to denigrate the State’s special need does not
stand against logic or policy clearly articulated by the Legislature.  The
special needs identified in Martin—to identify perpetrators at crime
scenes and exonerate the innocent—apply with equal force to felony arraignees
as to convicts. 
B.
¶ 78.        
The majority compounds its errors in its balancing of the State and
private interests, the second step of our special needs analysis.  See Martin,
2008 VT 53, ¶ 9 (explaining that the special needs test requires courts
“to pursue the necessary balancing test in a manner calculated to interfere
least with preservation of [individual] rights” (quotation omitted)).  In
order to reach its outcome, the majority understates the State’s interest and
overstates defendants’ privacy interest. 
¶ 79.        
In Martin, we held that the State’s interest in identifying
persons at crime scenes is an important factor, given that “DNA is more
accurate and far less susceptible to the various methods of deception employed
by wrongdoers.”[26] 
2008 VT 53, ¶ 33.  We concluded that “[t]his accuracy, and DNA’s
concomitant ability to conclusively exonerate the innocent, weigh heavily in
favor of the statute.”  Id.  This reasoning applies equally to
felony arraignees.  The public’s faith in the criminal justice system to
treat the accused fairly is bolstered through the use of identification
techniques that lend greater accuracy to the process.  As explained above,
this statute was not enacted to simplify or expedite police and prosecution
procedure toward resolution of particular charges against an accused felon, but
rather to further the integrity and accuracy of the criminal justice
system.  As the Third Circuit Court of Appeals explained in upholding a
statute requiring DNA identification of arrestees: 
 
To the extent that DNA profiling assists the Government in accurate criminal
investigations and prosecutions (both of which are dependent on accurately
identifying the suspect), it is in the Government’s interest to have this
information as soon as possible.  Collecting DNA samples from arrestees
can speed both the investigation of the crime of arrest and the solution of any
past crime for which there is a match in CODIS.  Moreover, use of CODIS
promptly clears thousands of potential suspects—thereby preventing them from
ever being put in that position, and advancing the overwhelming public interest
in prosecuting crimes accurately.  
 
Mitchell, 652 F.3d at
414-15 (quotations and citations omitted).  The Mitchell court’s
reasoning applies with equal force here. 
¶ 80.        
The majority cannot adequately distinguish Martin’s holding, and
thus whittles down the State’s important interest using artificial and
arbitrary metrics.  The majority begins by framing the State’s interest as
“involv[ing] only [the] limited period in which the case is pending,” on the
basis that the arraignees’ DNA will be collected upon conviction in any
event.  Ante, ¶ 51.  The time period between arraignment
and conviction is not the question—it is the moment of the search.  The
strength of the State’s interest at the time of sampling is not properly
evaluated based on the passage of time.  Moreover, the majority’s
reasoning that the expungement provisions diminish the strength of the State’s
interest turns the part of the statute designed to limit the intrusion on
privacy into a constitutional defect, as this statute is surely on stronger
constitutional ground than it would be without an expungement
requirement.  No court of which I am aware has required the State to prove
a “special need for preconviction DNA sampling beyond the special
needs . . . for postconviction DNA sampling,” as the
majority does here.  Ante, ¶ 48 (emphasis added). 
Rather, the issue is the strength of the State’s interest in identifying the
targeted population—felony arraignees.  See Mitchell, 652 F.3d at
413 (rejecting defendant’s argument that postconviction DNA samples would serve
equally well as preconviction samples and holding that “collecting identifying
information to aid law enforcement . . . applies with equal
force to arrestees and pretrial detainees [as to convicts]”).  The majority
has not identified any practical distinction between the uses of physically
identifying DNA at conviction—identified in Martin as special needs
beyond ordinary law enforcement—and the identical uses of this DNA at
arraignment.   
¶ 81.        
The majority further understates the State’s interest based on a
strained reading of Martin.  The majority claims that “the special
needs we recognized in Martin do not include
‘investigating . . . [defendant] for crimes already
committed.’ ” Ante, ¶ 52 (quoting Martin, 2008 VT 53,
¶ 19).  Aggregating this claim with its earlier contention that the
State’s interest only has weight until the moment of conviction, the majority
concludes that the State’s interest is limited to “investigating or deterring
criminal conduct” during the period between defendants’ arraignment and
conviction.  Ante, ¶ 52.  The problem with the majority’s
conclusion is that Martin did not hold that the State’s interest is in
investigating future crimes, but rather future crime scenes. 
See Martin, 2008 VT 53, ¶ 19 (holding that “DNA sampling and
analysis to assist in identifying persons at future crime scenes is a
special need beyond normal law enforcement” (emphasis added)).  Our
emphasis in Martin on “future crime scenes” was not to define a literal
timeline, but to again highlight that the creation of the DNA database is “a
long-range special need that does not have the immediate objective of
gathering evidence against the offender.”  Id. ¶ 16 (quotation
omitted).  As the King court recognized, identifying DNA does not
serve as direct proof of a crime.  133 S. Ct. at 1972 (“[T]he 13 CODIS
loci are not themselves evidence of any particular crime, in the way that a
drug test can by itself be evidence of illegal narcotics use.”).  Thus,
DNA collection is ultimately about identification of defendants, to the end of
increasing accuracy in the criminal justice system as a whole.  It is not
about resolution of a particular crime, whenever committed.  O’Hagen,
914 A.2d at 279 (finding a special need “because the testing is not for the
immediate investigation of a specific crime”).  Moreover, by the
majority’s logic, only crimes committed after defendants’ DNA is entered in
CODIS could constitutionally be matched to defendants’ DNA, a conclusion that
is not only impracticable but ignores that evidence of a crime may only surface
many years after the fact.
¶ 82.        
As to defendants’ privacy interest, Martin’s holding dictates
that, like felony convicts, felony arraignees’ privacy interest in their
identity is minimal if not nil.  It was settled before Martin that
the buccal swab was so minimally invasive to protected privacy interests as to
not require probable cause under Article 11.  In re R.H., 171 Vt.
227, 234, 762 A.2d 1239, 1244 (2000).  Martin confirmed the swab to
be a minimal intrusion, comparing it to photography and fingerprinting at
arrest, and held that “the initial sampling, taken alone, does not violate
Article 11.”  2008 VT 53, ¶ 23.  The majority unsettles these
well-established precedents.  In claiming that DNA sampling is unlike
fingerprinting because “one involves a bodily invasion and the other does not,”
ante, ¶ 59, the majority does not explain how the “light touch on the inside of the cheek” occasioned by the
buccal swab is materially distinguishable from pressing a finger against a
surface.  King, 133 S. Ct. at 1969.     
¶ 83.        
Regarding the second search, Martin held that “[i]n light of the
statutory limits on the analysis of genetic information, the post-sampling
intrusion on protected privacy interests is closely akin to that occasioned by
the retention and searching of fingerprint records.”  2008 VT 53,
¶ 31.  The intrusion here is limited to identifying information and
is thus minimal.  Like felony convicts, defendants, once arraigned, no
longer have a legitimate privacy interest in their identifying
information.  Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992)
(“[W]hen a suspect is arrested upon probable cause, his identification becomes
a matter of legitimate state interest and he can hardly claim privacy in
it.”).  As the King court explained, “DNA is another metric of
identification used to connect the arrestee with his or her public persona, as
reflected in records of his or her actions that are available to the
police. . . .  [DNA is] a different form of identification
than a name or fingerprint, but its function is the same.”  133 S. Ct. at
1972.    The majority has not justified its assertion that the
privacy interest in merely physically identifying information is greater for
felony arraignees than for convicted felons.  To the contrary, the
majority’s reasoning highlights the logical contradiction in its contentions
that, on the one hand, defendants’ privacy interests outweigh the need to
identify them using DNA, and, on the other hand, that DNA identification is
unnecessary because “[t]he current system of photographs and fingerprints fully
responds to the need for identification of the defendant.”  Ante,
¶ 36.  How can defendants’ privacy interests preclude their
identification using DNA when defendants have already been
identified?   
¶ 84.        
Moreover, once lawfully obtained, the government’s matching of an
“identification record against other records in its lawful possession does not infringe
on an individual’s legitimate expectation of privacy.”  Boroian v.
Mueller, 616 F.3d 60, 67 (1st Cir. 2010); see also Jones, 962 F.2d
at 306 (“[T]he identification of suspects is relevant
not only to solving the crime for which the suspect is arrested, but also for
maintaining a permanent record to solve other past and future crimes.”). 
Defendants have no constitutionally protected privacy interest in their
identifying information left at a past or future crime scene, and thus no
constitutional right to keep that information from authorities.  United States v. Post,
No. 3:13-CR-20, 2014 WL 345992, at *3 (S.D. Texas Jan. 30, 2014) (noting
that hypothetical criminal perpetrator would not be able to suppress DNA found
in his clothing left at crime scene “because he left
the clothing in a public place and lost any expectation of privacy he had in
it, regardless of how he contemplated that clothing could be used”). 
Once arraigned, defendants’ privacy interest in their physically identifying
information is nonexistent.  
¶ 85.        
The majority further reasons that “DNA samples being seized provide a
massive amount of unique, private information about a person that goes beyond
identification of that person.”  Ante, ¶ 59.  But there
is a crucial distinction between a DNA sample, which contains an
individual’s entire genome, and the DNA profile derived from the
thirteen CODIS loci, which is only used to obtain identifying
information.  See Weikert, 504 F.3d at 16 (distinguishing DNA
profiles from “the samples from which those profiles are created,” which “have
the potential to reveal information about an individual’s health, propensity
for certain diseases, and, perhaps, sexual orientation and propensity for
certain conduct”).   Martin considered the second search, the
DNA analysis, to encompass the “analysis, storage, and searching of the DNA profile.” 
2008 VT 53, ¶ 14 (emphasis added).  We did not consider the separate
intrusion in the long-term storage of the DNA sample; the majority
departs from this framework without explanation.  
¶ 86.        
Defendants here have not directly challenged the seizure implicated by
the State’s indefinite storage of their DNA samples, and the complex issues
potentially raised by such a seizure have not been adequately briefed. 
Other courts in similar procedural postures have expressed concern that
retention of DNA samples beyond portions necessary for identification may
implicate additional privacy concerns, but declined to address the issue. 
Mitchell, 652 F.3d at 412 (noting distinction between DNA sample and
profile, but holding that because defendant’s DNA sample had not yet been
collected, he was “not in a position to challenge the retention of his
sample”); Boroian, 616 F.3d at 70-71 (upholding retention of DNA profile
and recognizing separate challenge to retention of DNA sample, but declining to
address it based on defendant’s failure to raise the issue on appeal).  
¶ 87.        
I am mindful of the majority’s concern that technological advancements
have enabled the government to analyze immense amounts of personal information.[27]  If the majority’s contention is
that long-term retention of the DNA sample may be overly broad in accomplishing
the State’s narrow goal of identification through the DNA profile, I share this
concern.  In addressing this concern, however, not only does the majority
consider issues not raised before us, but it also “go[es] back on our statement
in Martin that we will not ground our decision on arguments about DNA
that invoke speculation about massive incursions on privacy.”  See ante,
¶ 59 n.22.  Rather, we recognized in Martin that strict
statutory limitations ensure that the DNA sampling is to be used only for
identification purposes.  2008 VT 53, ¶¶ 26-27.  We noted that a
“potential search, particularly one that is explicitly prohibited by
statute, cannot be the subject of a case or controversy ripe for decision by
this Court.”  Id. ¶ 25 n.10.  As in Martin, there
is no reason to expect that the State will not comply with the limitations in
the statute, id. ¶ 28; as the majority acknowledges, we assume
“that restrictions on use will be enforced.”  Ante, ¶ 59; see
also Judicial Watch, Inc. v. U.S. Dep’t of Health & Human Servs., 27
F.Supp.2d 240, 243 (D.D.C. 1998) (“The Court must
presume . . . that the Executive Branch is aware of its
duty . . . to faithfully execute the law as
enacted.”).  
¶ 88.        
The State’s strong interest in accurate identification of offenders,
balanced against defendants’ negligible privacy interest in their identifying
information, weigh in favor of the statute here.  Yet the majority
balances what it considers “[t]he marginal weight of the State’s interest in
DNA collection at the point of arraignment” against “the weight of the privacy
interest retained by arraignees prior to conviction,” and concludes to the
contrary.  Ante, ¶ 63.  The majority weighs the State’s
interest too lightly and defendants’ privacy interest too heavily, erroneously
tipping the scale in favor of defendants.  Though the presumption of
innocence weighs in favor of defendants, this presumption has never—before
today—justified blocking the State from using the most accurate means to
identify the persons in its charge.       
    
¶ 89.        
The majority’s attempt to distinguish this case from Martin
through the balancing of the public and private interests rests on a series of
cascading logical failures.  Reliance on Martin, while declining to
apply its holding to the practically indistinguishable facts of this case,
lends confusion to the jurisprudence.  The majority’s approach is in stark
contrast with other courts, which have recognized the potential of DNA analysis
to transform the criminal justice system at a time when other forensic
identification methods have repeatedly and forcefully been called into
doubt.  The stakes are high for both defendants and the State, and compel
a decision that places emphasis on proper identification of the accused. 
For these reasons, I respectfully dissent.
¶ 90.        
I am authorized to state that Justice Burgess joins this dissent.
 

 


 


 


 


 


Chief Justice

 





[1] 
See King v. State, 42 A.3d 549, 566 (Md. 2012), rev’d sub nom. Maryland
v. King, 133 S. Ct. 1958 (2013).  Under the Maryland statute,
although the collection occurs at arrest, the processing of the DNA sample
cannot begin until the arrestee is arraigned.  King v. State, 42
A.3d at 559.
 


[2]
 Our references to King throughout refer to the U.S. Supreme Court
case Maryland v. King, 133 S. Ct. 1958, 1980 (2013), not the
underlying Maryland Court of Appeals case.


[3] 
For example, defendants urge us to find that, because the Vermont statute
authorizes DNA collection from all felony arraignees rather than just from
arraignees charged with crimes of violence, the Vermont statute is
unconstitutional under the Fourth Amendment while the Maryland statute is
not.  Compare 20 V.S.A. § 1933(a)(2), with Md. Code Ann., Pub.
Safety § 2-504(a)(3)(i).  
 


[4] 
Statutorily defined violent crimes included murder, manslaughter, aggravated
forms of assault and robbery, kidnapping, first-degree unlawful restraint,
maiming, first-degree aggravated domestic assault causing serious bodily
injury, sexual assault and aggravated sexual assault, lewd and lascivious
conduct with or without a child, sexual exploitation of a child or an elderly
or disabled adult, burglary, unlawful trespass of a residence, or attempt of
any of the above-listed crimes.  1997, No. 160 (Adj. Sess.), § 1.
 


[5] 
The amendment also required a DNA sample where a defendant is charged with an
offense, conviction for which would trigger a DNA-sample requirement, and (1)
probable cause was found for this offense, and (2) as part of a plea agreement
there is a requirement for the defendant to give a DNA sample.  2005, No.
83, § 7 (effective June 28, 2005), amending 20 V.S.A. § 1932(12)(C)
(codified at § 1932(12)(E)).
 


[6] 
This decision did not address the expansion for plea agreements contained in 20
V.S.A. § 1932(12)(C), now § 1932(12)(E).
 


[7] 
Unlike the statute considered in King, the Vermont statute does not
allow collection of the sample upon arrest of the criminal defendant. 
Both collection of the sample, and its analysis, occur after judicial finding
of probable cause and arraignment.  20 V.S.A. § 1933(a)(2).
 


[8] 
The 2009 amendment also enhanced the list of crimes for which a sample is required
on conviction to include domestic assault, pursuant to 13 V.S.A. § 1042, and
“any crime for which a person is required to register as a sex offender
pursuant to subchapter 3 of chapter 167 of Title 13.”  20 V.S.A.
§ 1932(12)(B), (C).  Since felonies were already covered, this part
of the amendment added certain misdemeanors.  This enhancement is not
involved in this case.
 


[9] 
Examples of such purposes include “quality control” and “development of a
population database.”  20 V.S.A. § 1937(a)(2)(A), (C).


[10]
 The statute, 20 V.S.A. § 1934(a), states that the DNA sample “shall be
obtained by drawing blood, unless the Department [of Public Safety] determines
that a less intrusive means to obtain a scientifically reliable sample is
available, in which event such less intrusive means shall be used.”  From
the record, we assume that the department has determined that cheek swabs
provide an acceptable less intrusive means.
 


[11] 
Trial courts in other Vermont counties have stayed arraignee sampling and
related hearings pending the outcome of this appeal.  The parties have
represented that no pre-conviction DNA sampling is occurring under the current
statute, pending this decision.  


[12] 
By way of comparison, the Fourth Amendment to the U.S. Constitution states: 
 
  The right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
 
The requirements of a warrant
and probable cause contained in each constitution, although similar, are not
the same.  State v. Welch, 160 Vt. 70, 76, 624 A.2d 1105, 1108
(1992) (“[T]he right to be free from unreasonable government intrusions into
legitimate expectations of privacy . . . is the same under
both the United States and Vermont Constitutions, [but] our Article 11
jurisprudence has diverged from the United States Supreme Court’s analysis of
the Fourth Amendment.”).


[13] 
The first sentence of § 1931 stated, at the time: “It is the policy of
this state to assist federal, state and local criminal justice and law
enforcement agencies in the identification, detection or exclusion of
individuals who are subjects of the investigation or prosecution of violent
crimes.”  1997, No. 160 (Adj. Sess.), § 1, adding 20
V.S.A. § 1931.  The current language of § 1931 is the same
except for the removal of the word “violent.”  20 V.S.A. § 1931.


[14] 
E.g., Ala. Code § 36-18-24; Alaska Stat. § 44.41.035; Ariz. Rev.
Stat. Ann. § 13-610; Ark. Code Ann. §§ 12-12-1006, 1105; Colo. Rev.
Stat. § 16-23-103; Fla. Stat. § 943.325; Kan. Stat. Ann.
§ 21-2511; La. Rev. Stat. Ann. § 15:609; Mich. Comp. Laws
§ 750.520m; Mo. Rev. Stat. § 650.055; N.M. Stat. Ann. § 29-3-10;
N.C. Gen. Stat. § 15A-266.3A; N.D. Cent. Code § 31-13-03; Ohio Rev.
Code Ann. § 2901.07; S.C. Code Ann. § 23-3-620; S.D. Codified Laws
§§ 23-5A-5.2, 23-5A-1; Tenn. Code Ann. § 40-35-321; Tex. Gov’t Code
Ann. § 411.1471; Utah Code Ann. § 53-10-403; Va. Code Ann.
§ 19.2-310.2:1.
 


[15] 
These or similar limitations are in the Maryland law, but the Supreme Court did
not rely on them under its rationale.


[16]
 Curiously, the dissent appears to be most concerned with the evidence
presented in the Chittenden Superior Court case that the DNA loci analyzed may
contain other personal information.  Post, ¶ 71 n.24.  It
concludes that “[s]uch rapid technological developments dictate the need for a
more agile search and seizure doctrine . . . where the
evidence sought by law enforcement is entangled with vast amounts of private
information, as with DNA.”  Id.  Despite that statement, the
dissent fails to address the conclusion of that court that the statute is
unconstitutional under the balancing test because the privacy invasion is much
greater than that recognized in Martin.  Accepting the Chittenden
Superior Court’s analysis would, of course, lead to the same result as this
majority opinion although on different grounds. 


[17] 
We recognize that here and in the later discussion we have summarized and
simplified the statute to make the explanation easier.  While generally
the difference between the amended statute and the original statute involves
the period between arraignment and the end of the criminal case, there are
exceptions to this simplification.  If the original felony charges are
dismissed but defendant is convicted of “domestic assault pursuant to 13 V.S.A.
§ 1042 or a sex offense for which registration is required pursuant to 13
V.S.A. § 5401 et seq.,” the DNA sample is not expunged.  20 V.S.A.
§ 1940(a)(3).  Also, even though the felony charges that caused the
DNA-sampling requirement are dismissed, the court can order that expungement of
the DNA sample not occur where the prosecutor “can show good cause why the
sample should not be destroyed.”  Id. § 1940(a)(5). 
Finally, a pardon by the Governor can result in expungement after the criminal
case is concluded.  Id. § 1940(a)(2).  None of these
exceptions change the analysis that follows.   
 


[18]
 The dissent argues that Martin actually stands for the proposition
that investigating who perpetrated past crimes by comparing a defendant’s DNA
with DNA found at crime scenes is a special need beyond normal law
enforcement.  It argues that the language of the Martin decision,
holding that identifying persons at future crime scenes is a special need but
identifying persons at past crime scenes is not a special need, was not
intended “to define a literal time frame.”  Post, ¶ 81.  The
dissent’s position is a distortion of Martin, turning it into what the
dissenting Justices now wish it held, not what it actually held.  We
respond clearly and definitively that collecting DNA in order to determine
whether the person from whom it is collected committed any of the unsolved past
crimes contained in the national DNA database is a normal need of law
enforcement and not a special need that will justify involuntary collection of
the DNA.  This is the precise holding of Martin, to which we
adhere.


[19] 
To be clear, we do not view the expungement provisions as a “constitutional
defect” in the DNA collection statute, as appellant claims.  Rather, we
view them as a constitutionally justified recognition from the Legislature that
the privacy interest of someone not convicted of a crime—the average
citizen—generally outweighs the state interest in that person’s DNA sample.
 


[20] 
This argument is addressed in detail in C. Preston, Note, Faulty
Foundations: How the False Analogy to Routine Fingerprinting Undermines the
Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475
(2010).  We have included some but not all of the points raised in this
article in the text of this decision.
 


[21]
 The dissent cites to the three hundred persons who have been exonerated
by DNA evidence as a demonstration of the need for involuntary DNA collection.
 Post, ¶ 79 n.26.  Any criminal defendant who believes he
or she has been wrongfully identified as the perpetrator of a crime can
voluntarily give a DNA sample in the hope it will exonerate him or her. 
This case is about involuntary DNA collection from an unwilling
defendant.  It is not about exoneration, and the prospect of exoneration,
if any, does not support the law we are considering.
 


[22] 
Despite the dissent’s protestations, we do not by our observations intend to go
back on our statement in Martin that we will not ground our decision on
arguments about DNA that invoke speculation about massive incursions on
privacy.  2008 VT 53, ¶ 25.  As we stated earlier, we will not
speculate on the power of future technology or the policy decisions that will
be made in light of that technology.  But we must take note of the scope
of the search and seizure in this case.  As Judge Rendell observed in her
dissent in Mitchell, 652 F.3d at 424:  “It is akin to saying that
if the Government seizes personal medical information about you but can only
use the subset of that information that serves to identify you, your privacy
interest in the information taken is confined to a mere interest in your
identity.  Nothing could be further from the truth.”  This question
about the scope of the search has become a major public policy issue with the
disclosure that the National Security Agency has collected all the telephone
records of Americans so it can quickly get access to specific phone records
with court approval during a specific investigation.


[23] 
See, e.g., United States v. Mitchell, 652 F.3d 387, 407 (3d Cir. 2011)
(“The second ‘search’ at issue is, of course, the processing of the DNA sample
and creation of the DNA profile for CODIS.  This search also has the
potential to infringe upon privacy interests.”); Weikert, 504 F.3d at 12
(“Importantly, [the defendant’s] privacy is
implicated not only by the blood draw, but also by the creation of his DNA
profile and the entry of the profile into CODIS.”); Goord, 430
F.3d at 670 (holding that DNA analysis “is potentially a far greater intrusion
than the initial extraction of DNA, since the state analyzes DNA for
information and maintains DNA records indefinitely”).


[24]  In Martin, we noted that any
information that was captured in a swab sample along with the thirteen
identifying CODIS loci was “junk” DNA that was “not associated with any known
physical trait” and had “no known function, except to accurately and uniquely
establish identity.”  2008 VT 53, ¶ 26 (quotation omitted).  We
recognized the possibility that the CODIS loci might eventually reveal more
private information, but stressed that such analysis would be precluded under
the Vermont statute.  Id. 
 
Martin’s caution in this
regard is instructive.  Accord Weikert, 504 F.3d at 16 (“The
ongoing evolution in our understanding of DNA warrants particular caution in
determining what is constitutionally permissible.”).  In the few short
years since Martin issued, scientific understanding of noncoding DNA has
dramatically advanced, as the record below reflects.  It now appears, with
emerging science and new DNA analysis techniques, that these loci may contain
other personal information.  Such rapid technological developments dictate
the need for a more agile search and seizure doctrine—one that does not rely on
quickly-outdated assumptions about the reach of new technologies.  This is
particularly true where the evidence sought by law enforcement is entangled
with vast amounts of private information, as with DNA.  I urge legislative
participation, for “[i]n circumstances involving dramatic technological change,
the best solution to privacy concerns may be legislative.  A legislative
body is well situated to gauge changing public attitudes, to draw detailed
lines, and to balance privacy and public policy in a comprehensive way.”  United
States v. Jones, 132 S. Ct. 945, 964 (2012) (Alito, J., concurring)
(citation omitted).  
 


[25] 
Vermont’s statute provides even greater protection to
the accused than the statute upheld in King, as the probable cause
finding is not merely determined by a law enforcement officer but must be
confirmed by an independent magistrate.  20 V.S.A. § 1933(a)(2). 

 


[26]  Perhaps the most jarring aspect of
the majority’s special needs analysis is its apparent ease with requiring the
State to rely on indisputably less-accurate identification techniques.  As
to the majority’s assertion that “[t]he current system of photographs and
fingerprints fully responds to the need for identification of the defendant,” ante,
¶ 36, other courts would beg to disagree.  See, e.g., King,
133 S. Ct. at 1976 (“DNA identification is an advanced technique superior to
fingerprinting in many ways, so much so that to insist on fingerprints as the
norm would make little sense to either the forensic expert or a layperson.”); Banks
v. United States, 490 F.3d 1178, 1190 (10th Cir. 2007) (“While fingerprint
evidence might often be sufficient, we have always recognized the Government’s
compelling need to accurately identify offenders.”).  
 
Even more powerful than its
capacity to identify, DNA profiling has an “unparalleled ability both to
exonerate the wrongly convicted and to identify the guilty.  It has the
potential to significantly improve both the criminal justice system and police
investigative practices.”  King, 133 S. Ct. at 1966 (quotation
omitted).  Even if individuals can voluntarily submit their DNA to attempt
to exonerate themselves, use of the DNA data bank “promptly clears thousands of
potential suspects—thereby preventing them from ever being put in that
position, and advancing the overwhelming public interest in prosecuting crimes
accurately.”  United States v. Kincade, 379 F.3d 813, 839 n.38 (9th
Cir. 2004) (quotation omitted).  At a time when
the inadequacies of fingerprinting and eyewitness testimony have been starkly
revealed, the majority’s stubborn objection to DNA identification of arraignees
on serious charges is difficult to justify.  See Innocence Project, DNA
Exoneree Case Profiles, available at http://www.innocenceproject.org/know/ (last visited July 3, 2014) (explaining that over three
hundred people in the United States have been exonerated using DNA evidence and
that in almost half of these cases the actual perpetrator was identified using
DNA).  Like other courts that have examined these issues, I do not
interpret our Constitution’s privacy protections as requiring the State to
eschew the most advanced and accurate identification techniques.  
 
 


[27]  Martin held that there is a reasonable expectation of privacy in
the information contained in one’s DNA, and that—apart from the physical
intrusion required for extraction—any analysis of DNA that results in,
or is intended to result in, the collection of new information constitutes a
search triggering constitutional analysis and protection.  2008 VT 53,
¶ 14.  The majority’s failure to acknowledge that this holding
strictly limits the scope of personal intrusion is regrettable, as Martin
may also inform other jurisprudential developments not before us here now,
particularly the third-party doctrine.  
 
While
the majority asserts its position is not inconsistent with our decision in Martin,
its “if it opens the door, it must be wrong” approach moves us away from a
position of embracing new technology with the potential to benefit institutions
like the criminal justice system while preserving individual rights.  The
majority’s broad brush analysis is therefore a step backward in this regard. 
 



