In re Lakisha M. ( 2008 )

Docket No. 103541.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re LAKISHA M. (The People of the State of Illinois, Appellee, v.
Lakisha M., a Minor, Appellant).
Opinion filed January 25, 2008.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
OPINION
In this appeal, we are asked to consider whether the Illinois DNA
indexing statute, section 5–4–3 of the Unified Code of Corrections
(730 ILCS 5/5–4–3 (West 2004)), is unconstitutional as applied to
respondent, Lakisha M., a minor who was adjudicated delinquent, by
the circuit court of Cook County, after being found guilty of
committing a nonsexual felony offense. The appellate court upheld the
constitutionality of the statute. No. 1–05–2192 (unpublished order
under Supreme Court Rule 23). For reasons that follow, we affirm.
BACKGROUND
On December 13, 2004, Lakisha and another female student were
taken to the in-school detention room at Collins High School in
Chicago because they had been fighting. While there, Lakisha hit and
kicked the dean of her high school as he blocked her attempt to
resume fighting with the other girl. Based on this incident, a petition
for adjudication of wardship was filed against Lakisha. After a trial,
(705 ILCS 405/5–601 (West 2004)), a juvenile court found Lakisha
guilty of committing the offense of aggravated battery, a Class 3
felony (720 ILCS 5/12–4(b)(3), (e) (West 2004)),1 and adjudicated
her delinquent. She was then sentenced to one year of probation and
ordered to submit a saliva sample to the Department of State Police
for deoxyribonucleic acid (DNA) analysis and indexing, as required by
section 5–4–3(a)(3.5) of the Unified Code of Corrections (730 ILCS
5/5–4–3(a)(3.5) (West 2004)).
Lakisha appealed, challenging both her adjudication and the
constitutionality of the DNA indexing statute as it applied to her. In
an unpublished summary order, the appellate court affirmed Lakisha’s
adjudication and upheld the constitutionality of the statute. No.
1–05–2192 (unpublished order under Supreme Court Rule 23).
Lakisha petitioned this court for leave to appeal, which we
granted. 210 Ill. 2d R. 315. We also permitted the Children and
Family Justice Center of the Northwestern University School of Law,
the Public Defender Service for the District of Columbia, and a
coalition of juvenile justice, civil liberties and public defender
organizations to file, jointly, an amicus curiae brief in support of
respondent.
ANALYSIS
Lakisha has successfully completed her sentence of probation and
does not challenge her adjudication in this court. The only issue she
raises here is whether section 5–4–3 of the Unified Code of
Corrections (730 ILCS 5/5–4–3 (West 2004)) is unconstitutional as
1
Section 12–4(b)(3) of the Criminal Code of 1961 provides: “In
committing a battery, a person commits aggravated battery if he or she: ***
(3) Knows the individual harmed to be a teacher or other person employed
in any school and such teacher or other employee is upon the grounds of a
school or grounds adjacent thereto, or is in any part of a building used for
school purposes.” 720 ILCS 5/12–4(b)(3) (West 2004).
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applied to her, a minor adjudicated delinquent for a nonsexual felony
offense.
Section 5–4–3 is applicable to respondent pursuant to subsection
(a)(3.5), which provides in pertinent part:
(a) Any person *** found guilty or given supervision for
any offense classified as a felony under the Juvenile Court Act
of 1987 [705 ILCS 405/1–1 et seq.] *** shall, regardless of
the sentence or disposition imposed, be required to submit
specimens of blood, saliva, or tissue to the Illinois Department
of State Police in accordance with the provisions of this
Section, provided such person is:
***
(3.5) convicted or found guilty of any offense
classified as a felony under Illinois law or found guilty or
given supervision for such an offense under the Juvenile
Court Act of 1987 on or after August 22, 2002.”
Lakisha does not dispute that DNA analysis and typing produces
a unique “print” or genetic profile for every person and, accordingly,
is an accurate scientific process useful as a means of identification.
Moreover, she acknowledges that the plain language of section
5–4–3(a)(3.5) explicitly and unequivocally requires her and every
minor adjudicated delinquent based on the commission of a felony
offense on or after August 22, 2002, to provide a DNA sample to the
Illinois Department of State Police so that genetic marker grouping
analysis information obtained from the sample may be included in state
and national DNA databases. 730 ILCS 5/5–4–3(a), (f) (West 2006).
Lakisha contends, however, that the compulsory extraction of her
saliva, its analysis for DNA genetic marker groupings, and the
perpetual storage and open-ended potential for repeated searches of
her genetic profile, permitted by the statute, violate her right to be free
from unreasonable searches and seizures as guaranteed by the fourth
amendment to the United States Constitution (U.S. Const., amends.
IV, XIV), as well as article I, section 6, of the Illinois Constitution of
1970 (Ill. Const. 1970, art. I, §6). She also contends that the statute,
when applied to minors like herself, permits an unreasonable invasion
of privacy, in violation of the privacy clause of the Illinois Constitution
of 1970 (Ill. Const. 1970, art. I, §6).
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We begin our analysis by noting that all statutes are presumed
constitutional and that the party challenging a statute’s validity bears
the burden of demonstrating a clear constitutional violation. People v.
Wilson, 214 Ill. 2d 394, 398-99 (2005). A court must construe a
statute so as to affirm its constitutionality, if reasonably possible.
People v. Funches, 212 Ill. 2d 334, 339-40 (2004), citing People v.
Greco, 204 Ill. 2d 400, 406 (2003). Our review of a statute’s
constitutionality is de novo. People v. Dinelli, 217 Ill. 2d 387 (2005).
The Fourth Amendment
The fourth amendment of the United States Constitution,
applicable to the states through the due process clause of the
fourteenth amendment, guarantees to all citizens the right to be free
from unreasonable searches and seizures. People v. Lampitok, 207 Ill.
2d 231, 240 (2003). The “touchstone” of fourth amendment analysis
is always “the reasonableness in all the circumstances of the particular
governmental invasion of a citizen’s personal security” (Terry v. Ohio,
392 U.S. 1, 19, 20 L. Ed. 2d 889, 904, 88 S. Ct. 1868, 1878-79
(1968)) and reasonableness depends “on a balance between the public
interest and the individual’s right to personal security free from
arbitrary interference by law officers” (United States v. Brignoni-
Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614-15, 95 S. Ct. 2574,
2579 (1975)). Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d
331, 98 S. Ct. 330 (1977). See also Samson v. California, 547 U.S.
843, ___, 165 L. Ed. 2d 250, 256, 126 S. Ct. 2193, 2197 (2006);
Lampitok, 207 Ill. 2d at 248 (whether a search is unreasonable within
the meaning of the fourth amendment depends on the degree to which
the search intrudes upon the individual’s privacy balanced against the
degree to which it is needed to promote a legitimate governmental
interest), citing United States v. Knights, 534 U.S. 112, 151 L. Ed. 2d
497, 122 S. Ct. 587 (2001).
Lakisha’s burden in this case is considerable, not only because she
must overcome the presumption of constitutionality, but also because,
in People v. Garvin, 219 Ill. 2d 104 (2006), this court considered and
upheld the constitutionality of section 5–4–3 (730 ILCS 5/5–4–3
(West 2002)), as applied to adult felons.
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In Garvin, the defendant was convicted of burglary and theft,
sentenced to a term of 6½ years’ imprisonment, and directed to
provide a blood sample for DNA analysis pursuant to section 5–4–3.
On appeal, the defendant argued that the DNA indexing statute was
unconstitutional under the search and seizure provisions of both our
federal and state constitutions, because it permitted warrantless,
suspicionless searches without a showing of “special need” or other
justification. Garvin, 219 Ill. 2d at 117. The defendant also contended
that the statute was unconstitutional as applied to him because he was
convicted of a nonsexual felony and, as a result, the potential
usefulness of his stored DNA in solving future crimes was greatly
diminished. Garvin, 219 Ill. 2d at 117.
Addressing these claims, we found that the compelled blood
extraction, though a “search” within the meaning of the fourth
amendment, was reasonable. This was true whether we applied the
“special needs test” advocated by the defendant or the less rigorous
“pure balancing test” for determining reasonableness. Garvin, 219 Ill.
2d at 118. In reaching this determination, we held that the primary
purpose of our DNA indexing statute is the creation of a criminal
DNA database that can be used to “absolve innocents, identify the
guilty, deter recidivism by identifying those at a high risk of
reoffending, or bring closure to victims” and that this purpose serves
a special need beyond that of general law enforcement, thereby
satisfying the “special need” prong of the reasonableness test. Garvin,
219 Ill. 2d at 121-22. Further, we held that the state has an interest in
creating a DNA database to “[p]romot[e] an effective and accurate
criminal justice system and increas[e] public safety through either
deterrence or removal of criminal offenders from the streets” and that
these interests are compelling. Garvin, 219 Ill. 2d at 122. Weighing
the state’s interests against a felon’s privacy interest in his genetic
information, the scale tipped heavily in favor of the state. Garvin, 219
Ill. 2d at 124-25. This is because the intrusion caused by taking a
DNA sample is almost negligible, a felon’s reasonable expectation of
privacy is greatly diminished, and access to the information stored in
the database is limited to peace officers. Garvin, 219 Ill. 2d at 123-24.
Finally, we held that the fact that the defendant was convicted of a
nonsexual felony offense was of no consequence because one could
imagine “myriad examples involving other felonies” where the
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perpetrator’s DNA evidence might be useful. Garvin, 219 Ill. 2d at
124.
Lakisha acknowledges our holding in Garvin, but argues that
when weighing the state’s interests against the privacy interests of a
minor adjudicated delinquent, rather than a convicted felon, different
considerations inform the “reasonableness” inquiry and cause the
balance to tip in the minor’s favor. The State, however, maintains that
the fourth amendment balancing test for determining reasonableness
is the same for adjudicated minors as it is for adult felons and that we
should continue to follow our decision in Garvin. We agree with the
State.
DNA statutes, similar to our Illinois statute, have been enacted in
all 50 states. Though the scope of these statutes varies, constitutional
challenges brought against these statutes uniformly have been rejected.
See People v. Hunter, 358 Ill. App. 3d 1085 (2005); People v.
Garvin, 349 Ill. App. 3d 845 (2004). While it is undisputed that the
bodily intrusion involved in taking a blood, saliva, or tissue sample for
DNA analysis, as required by these indexing statutes, is a search
within the meaning of the fourth amendment, these searches have
universally been upheld as reasonable. Courts have found these
statutes to be reasonable because the intrusion involved in taking a
DNA sample is very slight and the governmental interest in the
information obtained as a result of these searches outweighs any
legitimate privacy interests of the offender, whether a minor or an
adult. See R. Miller, Validity, Construction, and Operation of State
DNA Database Statutes, 76 A.L.R. 5th 239 (2000) (courts have
uniformly expressed the view that DNA database statutes do not
violate the fourth amendment (and, occasionally, analogous state
constitutional provisions), whether the courts have applied traditional
fourth amendment analysis, the doctrine of prisoners’ reduced
expectation of privacy, or the “special needs” doctrine).
Moreover, no court has ever held that a juvenile is entitled to
greater fourth amendment protections by reason of her minority.
Those courts that have addressed the constitutionality of state statutes
requiring juveniles to provide DNA samples have consistently upheld
them. See In re Calvin S., 150 Cal. App. 4th 443, 58 Cal. Rptr. 3d
559 (2007) (requiring juvenile found to have committed felony car
theft and driving without a license to provide DNA sample did not
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violate fourth amendment; intrusion into juvenile’s fourth amendment
interests, including his interest in confidentiality of juvenile court
proceedings, did not outweigh legitimate government interest in DNA
testing as aid to law enforcement); A.A. ex rel. B.A. v. Attorney
General, 189 N.J. 128, 914 A.2d 260 (2007) (DNA testing is a one-
time procedure that applies equally to juveniles found delinquent and
adults found guilty of a crime and acts as an identification device,
much like a fingerprint, stored in secure local and national databases);
In re T.E.H., 2007 PA Super. 193 (trial court had authority to order
juvenile to submit to DNA sampling under the DNA act after
adjudication of delinquency); In re Leopoldo L., 209 Ariz. 249, 99
P.3d 578 (App. 2004); In re D.L.C., 124 S.W.3d 354 (Tex. App.
2003); L.S. v. State, 805 So. 2d 1004 (Fla. App. 2001) (state statute
imposing DNA testing requirements on felons convicted of specific,
enumerated offenses did not violate a juvenile’s right to be free of
unreasonable searches and seizures, equal protection, or right of
privacy under the state constitution; any intrusion to be suffered by the
juvenile was outweighed by the state’s interests in identifying
perpetrators, exonerating innocent persons charged with criminal
offenses, and preventing the furtherance of criminal activity); In re
Nicholson, 132 Ohio App. 3d 303, 724 N.E.2d 1217 (1999) (fourth
amendment challenge of Ohio DNA statute as applied to juveniles
rejected); In re Appeal in Maricopa County Juvenile Action Numbers
JV–512600 & JV–512797, 187 Ariz. 419, 930 P.2d 496 (App. 1996)
(statute did not violate the juveniles’ right to privacy or authorize an
unreasonable search and seizure); In re Orozco, 129 Or. App. 148,
878 P.2d 432 (1994) (Oregon DNA statute did not violate fourth
amendment when applied to juvenile sex offender).
Although Lakisha recognizes that other jurisdictions have upheld
the constitutionality of DNA indexing statutes as applied to juveniles,
she argues that these out-of-state opinions are not persuasive and are,
for the most part, “mid-level appellate court decisions” that are not
binding on this court. She maintains that “the fourth amendment
balancing test employed in Garvin involves different considerations
when applied in the juvenile context” and urges this court to hold our
indexing statute constitutionally unreasonable because it treats
adjudicated minors the same as adult felons.
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First, relying on People v. Taylor, 221 Ill. 2d 157, 168-69 (2006),
Lakisha argues that a delinquency adjudication is not the equivalent of
a criminal felony conviction and, for that reason, delinquent minors do
not have the same diminished expectation of privacy as convicted
felons. Lakisha also points to certain provisions of the Juvenile Court
Act and our court rules that are designed to protect the confidentiality
of a juvenile’s identity. See 210 Ill. 2d R. 660(c) (minors, including
adjudicated delinquent minors, must be referred to by their first name
and last initial, or simply by their initials, in appellate proceedings);
705 ILCS 405/1–7, 1–8, 5–901(1)(a), 5–905(1) (West 2004) (strict
limits placed on access to juvenile court records and files). She
maintains that, because our juvenile justice system affords juveniles
greater privacy protections than the criminal justice system gives to
adults, juveniles’ expectations of privacy are not only undiminished,
they are significantly greater and, thus, juveniles have heightened
privacy interests.
Lakisha further contends that maintaining confidentiality of a
juvenile’s identity is consistent with the goal of rehabilitation, which
“remains a more important consideration in the juvenile justice system
than in the criminal justice system” (Taylor, 221 Ill. 2d at 170), and
with the provisions of the Juvenile Court Act that provide certain
juveniles the opportunity to have their delinquency records expunged
(see 705 ILCS 405/5–915 (West 2006)). She notes that a juvenile’s
expungement rights under the Juvenile Court Act do not extend to
DNA indexing. See 730 ILCS 5/5–4–3(f–1) (West 2006). Thus, even
if a juvenile succeeds in having her juvenile records expunged under
the Juvenile Court Act, she will remain in the DNA database for the
rest of her life. From this Lakisha concludes that applying the indexing
statute to juveniles is at odds with the purpose and goals of the
Juvenile Court Act.
We are not persuaded by Lakisha’s arguments. Initially, we note
that her reliance on our decision in People v. Taylor, 221 Ill. 2d 157
(2006), is misplaced. Taylor had nothing to do with DNA extraction
or the fourth amendment. In Taylor, we were asked to consider
whether the escape statute, which applies to a “person convicted of a
felony,” would encompass a juvenile adjudicated delinquent of a
felony offense. We held, as a matter of statutory construction, a
delinquent juvenile was not “a person convicted of a felony.” We said,
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“We simply do not believe that the term ‘person convicted of a felony’
can be read to include juvenile adjudications under the plain meaning
of the existing statutory framework at issue here.” Taylor, 221 Ill. 2d
at 164. We came to this belief based on the fact that, at the time of the
defendant’s adjudication, the Juvenile Court Act did not provide for
a plea or a finding of guilty of an offense2 and because, in most cases,
juveniles do not have the right to a jury trial and “the law does not
authorize a felony conviction in the absence of a right to a trial by
jury.” Taylor, 221 Ill. 2d at 169.
In the case at bar, we are not faced with a question of statutory
construction. The DNA indexing statute explicitly and unequivocally
includes juveniles adjudicated delinquent for felony offenses within its
scope. Further, while it is undoubtedly true that a delinquency
adjudication is still not the legal equivalent of a felony conviction
despite the amendments to the Act, it does not follow inexorably that
a juvenile adjudicated delinquent for committing a felony offense does
not have a diminished expectation of privacy. When a minor, like
respondent here, is found guilty of committing a felony offense and is
2
In Taylor, it was pointed out that, after the defendant’s adjudication, the
Juvenile Court Act was “radically altered” when the General Assembly
amended the Act with Public Act 90–590, effective January 1, 1999. See 705
ILCS Ann. 405/5–101 et seq. (Smith-Hurd 1999). We noted:
“The legislature has now indicated an intent that the term ‘ “trial”
replace the term “adjudicatory hearing” and be synonymous with
that definition as it was used in the [Act].’ 705 ILCS
405/5–101(17) (West 1998). Furthermore, the Act now allows for
a ‘plea of guilty’ in a delinquency proceeding (705 ILCS
405/5–605 (West 1998)), and if a trial is conducted, the court is
required, at its conclusion, to ‘make and note in the minutes of the
proceeding a finding of whether or not the minor is guilty.’
(Emphasis added.) 705 ILCS 405/5–620 (West 1998). If the court
finds the minor ‘guilty,’ the cause then proceeds to a ‘sentencing
hearing,’ ***. 705 ILCS 405/5–620, 5–705, 5–710 (West 1998).
In sum, the Act now provides for pleas of guilty, findings of guilty
and sentencing–language which effectively tracks with the first
clause of the term ‘conviction’ as defined in the Code.” Taylor, 221
Ill. 2d at 167.
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made a ward of the court (see 705 ILCS 405/5–620 (West 2004)
(“After hearing the evidence, the court shall make and note in the
minutes of the proceeding a finding of whether or not the minor is
guilty. *** If the court finds that the minor is guilty, the court shall
then set a time for a sentencing hearing to be conducted under Section
5–705 at which hearing the court shall determine whether it is in the
best interests of the minor and the public that he or she be made a
ward of the court”)), her identity is a matter of state interest and, as
a result, she can no longer have the same expectation of privacy
enjoyed by ordinary, law-abiding citizens.
We also do not agree that a juvenile’s expectation of privacy with
regard to her DNA identifying information is increased because certain
provisions of our Juvenile Court Act serve to maintain the
confidentiality of juveniles’ identities. The same argument was
advanced and rejected in In re Calvin S., 150 Cal. App. 4th 443, 58
Cal. Rptr. 3d 559 (2007). We find that court’s reasoning to be sound.
In In re Calvin S., the minor was adjudicated delinquent for
felony car theft and required to provide a DNA sample in accord with
the California DNA indexing statute, Penal Code section 296. Like
respondent here, the minor argued that “his interest in keeping his
juvenile adjudication confidential significantly alters the Fourth
Amendment balancing of interests found in the decisions upholding the
constitutionality of Penal Code section 296 when the offender is an
adult.” (Emphasis in original.) In re Calvin S., 150 Cal. App. 4th at
448, 58 Cal. Rptr. 3d at 562. In response, the Third Appellate District
of the California Court of Appeal acknowledged the state’s strong
public policy favoring confidentiality of juvenile proceedings and the
statutory provisions supporting this policy. Nonetheless, the court
held that the compulsory extraction and testing of the minor’s DNA
required by its state indexing statute had “little impact on the minor’s
interest in the privacy of juvenile proceedings.” In re Calvin S., 150
Cal. App. 4th at 448, 58 Cal. Rptr. 3d at 562.
The California court noted that its DNA indexing statute permitted
the DNA and forensic identification profiles to be used only for certain
identification purposes and permitted “with few exceptions” release
of the information only to law enforcement agencies. In re Calvin S.,
150 Cal. App. 4th at 448-49, 58 Cal. Rptr. 3d at 562-63. Also, the
statute made it a criminal offense for a person to use DNA specimens
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or profiles for other purposes or to disclose the DNA information to
an unauthorized person or agency. In re Calvin S., 150 Cal. App. 4th
at 448-49, 58 Cal. Rptr. 3d at 562-63. The court then concluded:
“With the use of DNA samples and the DNA database so limited,
making juveniles subject to the provisions of Penal Code section 296
is hardly a public announcement of a juvenile offender’s felony
conviction.” In re Calvin S., 150 Cal. App. 4th at 449, 58 Cal. Rptr.
3d at 562.
Similarly, our Illinois DNA indexing statute restricts the
dissemination of genetic marker grouping analysis information to
“peace officers of the United States, of other states or territories, of
the insular possessions of the United States, of foreign countries duly
authorized to receive the same, to all peace officers of the State of
Illinois and to all prosecutorial agencies, and to defense counsel as
provided by Section 116–5 of the Code of Criminal Procedure of
1963.” 730 ILCS 5/5–4–3(f) (West 2004). Also, our statute limits the
permitted uses for the genetic marker grouping analysis information
to certain enumerated law enforcement purposes (730 ILCS
5/5–4–3(f) (West 2004))3 and provides that use of the “genetic marker
grouping analysis information, or any other information derived from
a DNA sample, beyond the authorized uses as provided under this
Section, or any other Illinois law, is guilty of a Class 4 felony, and
shall be subject to a fine of not less than $5,000” (730 ILCS
5/5–4–3(f–5) (West 2004)).
The provisions of our Juvenile Court Act that afford minors
greater privacy protections do so with respect to the general public.
There is nothing to suggest that these provisions indicate a legislative
3
The permitted uses are: “(i) valid law enforcement identification
purposes and as required by the Federal Bureau of Investigation for
participation in the National DNA database, (ii) technology validation
purposes, (iii) a population statistics database, (iv) quality assurance
purposes if personally identifying information is removed, (v) assisting in the
defense of the criminally accused pursuant to Section 116–5 of the Code of
Criminal Procedure of 1963, or (vi) identifying and assisting in the
prosecution of a person who is suspected of committing a sexual assault as
defined in Section 1a of the Sexual Assault Survivors Emergency Treatment
Act.” 730 ILCS 5/5–4–3(f) (West 2004).
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intent to provide juveniles with greater privacy rights with respect to
law enforcement officials, who are the only ones given access to the
genetic marker information derived from the searches required by the
DNA indexing statute. 730 ILCS 5/5–4–3(f) (West 2004). We
conclude, as did the court in In re Calvin S., that our state’s public
policy favoring confidentiality of juvenile proceedings, and the
statutory provisions supporting that policy, do not alter a delinquent
juvenile’s expectation of privacy with respect to the minimally
intrusive, compulsory extraction of DNA, as required by our indexing
statute.
We note, too, that our legislature has explicitly set forth as
“important purposes” of the Juvenile Court Act protecting citizens
from juvenile crime, holding juvenile offenders directly accountable
for their acts, and rehabilitating juveniles to prevent further delinquent
behavior. 705 ILCS 405/5–101 (West 2004). In Garvin, we held that
DNA sampling has a deterrent and rehabilitating effect because it
identifies those at risk of reoffending. Garvin, 219 Ill. 2d at 122.
Therefore, maintaining a delinquent juvenile’s genetic analysis
information in state and national databanks for law enforcement
purposes advances, rather than conflicts with, the goals of our
Juvenile Court Act. See In re Calvin S., 150 Cal. App. 4th at 449, 58
Cal. Rptr. 3d at 563 (the juvenile court’s goals of protecting the public
and rehabilitating the minor are aided by DNA testing of juvenile
felons by facilitating the detection, apprehension, and conviction of
offenders).
Lakisha next argues that the fourth amendment reasonableness
balance must tip in her favor because the state’s interests in obtaining
an adjudicated minor’s DNA are not as compelling as they are for a
convicted felon. According to Lakisha, adjudicated minors are not as
culpable as adult offenders (see In re Rodney H., 223 Ill. 2d 510, 520
(2006) (“ ‘no suggestion or taint of criminality attaches to any finding
of delinquency’ ”), quoting In re Dow, 75 Ill. App. 3d 1002, 1006
(1979)) and have a greater potential for reform (Roper v. Simmons,
543 U.S. 551, 570, 161 L. Ed. 2d 1, 22, 125 S. Ct. 1183, 1195-96
(2005) (“it would be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists that a minor’s
character deficiencies will be reformed”). She maintains, therefore,
that there is less potential that a juvenile’s DNA will be useful for
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solving future crime, particularly when the juvenile has been
adjudicated based on the commission of a nonsexual offense. She
concludes that extracting DNA from juvenile offenders who commit
nonsexual felony offenses does not advance state interests and, as a
result, the DNA indexing statute is constitutionally unreasonable when
applied to them. Lakisha further adds that, when weighing the state’s
interests, we should also recognize that the indexing statute, as
applied to juveniles, “sweeps too broadly” because it permits the state
to retain and perpetually examine a delinquent juvenile’s DNA while
affording juveniles only limited opportunity to have their DNA
expunged from the database. 730 ILCS 5/5–4–3(f–1) (West 2004)
(expungement is available only upon “reversal of a conviction based
on actual innocence or *** the granting of a pardon”).
We find Lakisha’s reasoning to be faulty. While it may be true that
juveniles, because of their lack of maturity, often act impetuously and
may be more easily influenced by others, that does not negate the fact
that juvenile crime is a serious concern of the state. Our legislature has
declared that “despite the large investment of resources committed to
address the needs of the juvenile justice system of this State, cost of
juvenile crime continues to drain the State’s existing financial capacity,
and exacts traumatic and tragic physical, psychological and economic
damage to victims.” 705 ILCS 405/5–201 (West 2004). In addition,
our legislature has recognized that “many adults in the criminal justice
system were once delinquents in the juvenile justice system.” 705
ILCS 405/5–201 (West 2004). Thus, Lakisha’s assertion that the
collection, analysis, and storage of delinquent juveniles’ DNA does
not advance the “fundamental concerns” of the state and law
enforcement for promoting an effective and accurate criminal justice
system and increasing public safety (Garvin, 219 Ill. 2d at 122) cannot
be sustained.
Also, we continue to believe, as we held in Garvin, that a person’s
status as a nonsexual felony offender does not diminish the state’s
interest in the person’s DNA. There are a number of ways that a
nonsexual offender might leave behind DNA and, as techniques in
DNA retrieval and analysis continue to advance, the possibility that
such person’s DNA information will be useful in solving future crimes
should increase. Garvin, 219 Ill. 2d at 124-25.
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Finally, to the extent that Lakisha presents an overbreadth
argument, it must be rejected. As we said in Garvin, the overbreadth
doctrine has only been applied in relation to first amendment
constitutional challenges. It is not cognizable in the context of a fourth
amendment challenge. Garvin, 219 Ill. 2d at 125.
Lakisha raises one last argument in her fourth amendment
challenge to Illinois’ DNA indexing statute. She argues that, when
deciding reasonableness, the balancing test here must be different from
that in Garvin because the indexing statute has been amended and
now permits genetic marker profile information obtained from
extracted DNA to be used for “a population statistics database.” See
730 ILCS 5/5–4–3(f)(iii) (West 2004). She contends that this
amendment is constitutionally problematic for two reasons: (1) the
provision does not include language requiring personal identifying
information to be removed and, consequently, she alleges, this
additional use constitutes a much greater intrusion into an individual’s
privacy; (2) the term “population statistics database” is not defined
and, thus, she contends, there exists the potential that the DNA
collected pursuant to statute will be used to develop a general
information bank that will collect and monitor personal information
for behavioral research or will be used in a way that discriminates
against certain individuals or groups.
We agree with the State that respondent’s arguments are largely
speculative, made-up factual hypotheticals that are not present in the
case at bar. Respondent does not allege that her DNA has been used
improperly or that her genetic information has been used to
discriminate against her in any way.
Additionally, as respondent, herself, acknowledges, a regulation
promulgated by the Department of State Police mandates that genetic
marker group analysis information may be used for a population
statistics database only “if personal identifying information is
removed.” 20 Ill. Adm. Code §1285.60(b) (2007) (amended at 31 Ill.
Reg. 9249, eff. June 12, 2007). Thus, respondent cannot show, at the
present time, that our DNA indexing statute is being
unconstitutionally applied to her because the statute permits genetic
marking group analysis to be used for a population statistic database.
In light of the fact that personal identifying information must be
removed, any use of respondent’s genetic marker analysis information
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for a population statistic database does not constitute a greater
intrusion than was contemplated in Garvin.
As a final matter we note that, because the taking of respondent’s
DNA pursuant to statute does not violate the fourth amendment, it
follows that the perpetual storage and potential future use of the
genetic marker grouping analysis information derived from the sample
does not give rise to an independent fourth amendment claim. If the
initial search is lawful, the subsequent use of the information by the
limited number of law enforcement officials, as currently set forth in
the statute, is not a separate fourth amendment search because there
is no additional invasion of the respondent’s privacy interest. See
Johnson v. Quander, 440 F.3d 489 (D.C. Cir. 2006); A.A. ex rel. B.A.
v. Attorney General, 189 N.J. 128, 914 A.2d 260 (2007).
The Search and Seizure Provision of Our Illinois Constitution
Lakisha maintains that, even if we find that the statute conforms
with the fourth amendment, we should find that the statute violates
“her broader rights” under the search and seizure portion of the
Illinois Constitution of 1970.
In People v. Caballes, 221 Ill. 2d 282, 309 (2006), we recently
explained our “limited lockstep approach” to analyzing cognate
provisions in the Illinois and United States constitutions. Citing L.
Friedman, The Constitutional Value of Dialogue and the New Judicial
Federalism, 28 Hastings Const. L.Q. 93, 104 (2000), we said, “Under
this approach, this court will ‘look first to the federal constitution, and
only if federal law provides no relief turn to the state constitution to
determine whether a specific criterion–for example, unique state
history or state experience–justifies departure from federal
precedent.’ ” Caballes, 221 Ill. 2d at 309-10.
In the case at bar, respondent notes that Illinois was home to the
first juvenile court and contends that our “unique history and values
when it comes to the treatment of juvenile offenders justifies a broader
interpretation of its search and seizure rights [for juveniles] under the
state constitution.” She urges us to “strike down” the DNA indexing
statute as it applies to juveniles so that Illinois can “reaffirm its long-
held belief in the rehabilitative potential and privacy rights of minors.”
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The problem with Lakisha’s argument is that it ignores the fact
that collection and storage of DNA pursuant to our indexing statute
has a deterrent and rehabilitative effect that actually advances the
goals of the Juvenile Court Act. As we concluded above, requiring
juveniles to submit to the minimally intrusive, compulsory extraction
of their DNA, in accord with our indexing statute, does not conflict
with this state’s long-standing public policy favoring rehabilitation of
juvenile offenders and confidentiality of juvenile proceedings. Thus,
in this case, we find no basis for interpreting the search and seizure
provision of the Illinois Constitution as providing any greater rights to
juveniles than the fourth amendment.
Privacy Clause of the Illinois Constitution
As her final claim, Lakisha argues that the extraction of her DNA
pursuant to the indexing statute violates the privacy clause of the
Illinois Constitution, which provides:
“The people shall have the right to be secure in their
persons, houses, papers and other possessions against
unreasonable searches, seizures, invasions of privacy or
interceptions of communications by eavesdropping devices or
other means.” (Emphasis added.) Ill. Const. 1970, art. I, §6.
In In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 391
(1992), we held, “the Illinois Constitution goes beyond Federal
constitutional guarantees by expressly recognizing a zone of personal
privacy.” Further, we held that “a person has a reasonable expectation
that he will not be forced to submit to a close scrutiny of his personal
characteristics, unless for a valid reason.” In re May 1991 Will County
Grand Jury, 152 Ill. 2d at 391-92. Thus, we recognized in In re May
1991 Will County Grand Jury that the taking of physical samples,
such as fingerprints, palm prints, blood, head hair, and pubic hair, may
implicate not only the fourth amendment, but also the privacy clause
of our constitution. See People v. Caballes, 221 Ill. 2d 282, 320-21
(2006). However, in Caballes, we held that, even if there is a right to
privacy under article I, section 6, the critical question is whether the
state’s invasion of individual privacy is reasonable. Caballes, 221 Ill.
2d at 321. Reasonableness, with regard to our state constitution’s
privacy clause, depends, largely, on the extent of one’s expectation of
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privacy under the circumstances presented, as well as the degree of
intrusiveness of the invasion of privacy. Caballes, 221 Ill. 2d at 327,
citing People v. Cornelius, 213 Ill. 2d 178, 193-94 (2004) (claims
alleging a violation of our state privacy clause require a twofold
inquiry: first, whether the party has a reasonable expectation of
privacy in the information he seeks to protect and, second, whether
the statute unreasonably invades that expectation of privacy).
In the present case, we agree with respondent that the extraction
of her DNA involves an invasion of her actual physical body and,
therefore, falls within the “zone of privacy” protected by our
constitution’s privacy clause. See Caballes, 221 Ill. 2d at 329-30.
Nevertheless, we find that the minimally intrusive nature of the
invasion required for a buccal swab, coupled with her diminished
expectation of privacy as a result of her delinquency adjudication,
makes the invasion of privacy reasonable. Further, we find that the
statute does not unreasonably invade respondent’s privacy because the
genetic analysis information derived from the DNA samples is not
disseminated to the general public, but only to law enforcement
officials. Consequently, we find that our indexing statute does not
violate the privacy clause of our state constitution.
CONCLUSION
Respondent challenges the constitutionality of the Illinois DNA
indexing statute, section 5–4–3 of the Unified Code of Corrections
(730 ILCS 5/5–4–3 (West 2004)), as it applies to her, a delinquent
juvenile found guilty of committing a nonsexual felony offense. For
reasons we have explained, we uphold the constitutionality of the
statute, and therefore affirm the judgment of the appellate court.
Appellate court judgment affirmed.
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