Plaintiffs-Respondents,
v.
ATTORNEY GENERAL OF NEW JERSEY and THE
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Defendants-Appellants,
and
MERCER COUNTY PROBATION SERVICES
Defendant.
_______________________________
A.A., by his parent and guardian B.A.,
and Jamaal W. Allah,
Plaintiffs-Appellants,
v.
ATTORNEY GENERAL OF NEW JERSEY and THE
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Defendants-Respondents,
and
MERCER COUNTY PROBATION SERVICES
Defendant.
_______________________________________
Argued November 2, 2005 - Decided
Before Judges Stern, Parker and Grall.
On appeal from Superior Court of New
Jersey, Law Division, Mercer County,
L-346-04.
Larry Etzweiler, Senior Deputy Attorney General, argued the cause for appellants in
A-2320-04T3; respondents in A-2671-04T3
(Peter C. Harvey, Attorney General,
attorney; Patricia Prezioso and Patrick DeAlmeida, Assistant Attorneys General,
of counsel; Mr. Etzweiler, Janet Flanagan and Tamara L. Rudow, Deputy Attorneys General,
on the brief).
Lawrence S. Lustberg argued the cause for
respondents in A-2320-04T3; appellants in
A-2671-04T3 (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Mr.
Lustberg and Gitanjali S. Gutierrez, on the brief).
American Civil Liberties Union of New
Jersey, co-counsel for respondents in
A-2320-04T3; appellants in A-2671-04T3
(Edward L. Barocas, on the brief).
The opinion of the court was delivered by
GRALL, J.A.D.
This appeal is from a final order in a declaratory judgment action concerning
the constitutionality of the DNA Database and Databank Act of 1994 (the Act),
N.J.S.A. 53:1-20.17 to -20.28, as amended by L. 2003, c. 183, § 1. The
Act establishes a databank and database consisting of biological samples and DNA profiles
of certain offenders. N.J.S.A. 53:1-20.20g, h; N.J.S.A. 53:1-20.21. Its purpose is to provide
"an important tool in criminal investigations and in deterring and detecting recidivist acts."
N.J.S.A. 53:1-20.18.
I.
Plaintiffs, A.A., by his parent and guardian B.A., and Jamaal W. Allah became
subject to the Act when it was amended, effective September 22, 2003, to
require any person serving a sentence of supervision as a consequence of conviction
or adjudication of delinquency based on conduct classified as a crime to submit
a biological sample. N.J.S.A. 53:1-20.20g, h; see L. 2003, c. 118.
See footnote 1
On that
date, Allah was serving a sentence of incarceration as a result of two
convictions for possession of a controlled dangerous substance with intent to distribute, contrary
to N.J.S.A. 2C:35-5, one for a crime of the second degree and one
for a crime of the third degree. N.J.S.A. 2C:35-5b (2)-(3). On the same
date, A.A. was on probation as a result of an adjudication of delinquency
based upon conduct that would have constituted aggravated assault contrary to N.J.S.A. 2C:12-1b(5)(a)
if A.A. had been eighteen rather than fourteen years of age at the
time of the assault.
On January 22, 2004, plaintiffs filed a complaint for injunctive and declaratory relief.
They named as defendants the Attorney General, who is responsible for administering the
Act through the Division of State Police (division), as well as the Department
of Corrections and the Mercer County Probation Services, two of the entities that
collect biological samples from offenders.
See footnote 2
Plaintiffs alleged that the Act exceeds constitutional limitations
on searches and ex post facto laws and deprives them of due process
of law. U.S. Const. art. I, § 10, cl. 1; U.S. Const. amends. IV,
XIV; N.J. Const. art. I, ¶¶ 1, 7 and N.J. Const. art. IV, § 7,
¶ 3. The issues were decided on the basis of briefs and certifications, including
documentary evidence.
For reasons stated in a thoughtful opinion, the trial judge held that the
Act would deprive offenders of due process and permit unreasonable searches unless modified
to include a right of expungement upon completion of sentence. As a corollary
to that right, the judge further precluded the State defendants from sharing an
offender profile with any agency that will not purge its database upon receipt
of an expungement order.
See footnote 3
The judge rejected plaintiffs' ex post facto claims.
The Attorney General and the Department of Corrections (collectively defendants) filed a notice
of appeal; plaintiffs too filed a notice of appeal. The trial judge filed
a supplemental opinion. We granted defendants' motion to consolidate and accelerate the appeals.
Defendants contend that neither the State nor Federal Constitutions require the expungement remedy
the trial court fashioned. Plaintiffs contend that even with that remedy, the Act
permits searches that are constitutionally unreasonable. Alternatively, they argue that without post-sentence expungement
the Act would not only permit unreasonable searches but also deprive them of
procedural and substantive due process and the fundamental fairness guaranteed by the State
Constitution.
See footnote 4
We discuss the Act and its implementation in Section II. We have the
benefit of a full record describing the collection, testing and retesting, and dissemination
of DNA profiles and identifying information.
In Section III we discuss the reasonableness of the searches authorized by the
Act and hold that establishment of the system for identification of offenders required
by this Act is a "special need[], beyond the normal need for law
enforcement," and that the searches and seizures authorized meet the reasonableness requirement of
the Federal and State Constitutions, at least when applied to adults and juveniles
over the age of fourteen at the time of the predicate act. See
Griffin v. Wisconsin,
483 U.S. 868, 873,
107 S. Ct. 3164, 3168,
97 L. Ed.2d 709, 717 (1987). This aspect of our decision is informed
by State v. O'Hagen,
380 N.J. Super. 133 (App. Div.), certif. granted,
185 N.J. 391 (2005) and In re L.R.,
382 N.J. Super. 605 (App. Div.
2006), which were decided after the trial judge's ruling and hold that the
searches are reasonable. L.R., supra, 382 N.J. Super. at 619 (rejecting challenge by
a juvenile over the age of fourteen); O'Hagen, supra, 380 N.J. Super. at
145-51 (rejecting adult offender's claims of unreasonable search and denial of equal protection).
The Act's requirement for promulgation of rules governing testing and access to DNA
profiles is essential to our conclusion that the statutory scheme is reasonable and
constitutional. In Section IV we hold that the division must adopt those rules
in accordance with the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15.
Section V provides our reasons for concluding that neither the constitutional prohibition against
unreasonable searches nor principles of due process or fundamental fairness permit or require
a judicial expungement remedy.
II.
New Jersey's Act is not unique. Each of the fifty states and Congress
have adopted comparable statutes that provide a means for law enforcement agencies to
maintain and share DNA profiles of offenders. See O'Hagen, supra, 380 N.J. Super.
at 142-43.
The Legislature has provided a clear statement of its reasons for establishing this
identification system:
The Legislature finds and declares that DNA databanks are an important tool in
criminal investigations and in deterring and detecting recidivist acts. It is the policy
of this State to assist federal, state and local criminal justice and law
enforcement agencies in the identification and detection of individuals who are the subjects
of criminal investigations. It is therefore in the best interest of the State
of New Jersey to establish a DNA database and a DNA databank containing
blood or other biological samples submitted by every person convicted or found not
guilty by [specified offenders]. . . .
[N.J.S.A. 53:1-20.18.]
The Act requires any person convicted, adjudicated delinquent or found not guilty by
reason of insanity on the basis of conduct defined as a crime to
"have a blood sample drawn or other biological samples collected for purposes of
DNA [deoxyribonucleic acid] testing." N.J.S.A. 53:1-20.20g-h; N.J.S.A. 53:1-20.19. A crime is any offense
subject to a term of imprisonment in excess of six months. N.J.S.A. 2C:1-4a.
For ease of reference, we employ the term "offenders" to denote collectively persons
convicted and adjudicated delinquent on the basis of conduct defined as a crime.
See footnote 5
The collection is performed by trained personnel. N.J.S.A. 53:1-20.22. It is done once;
an offender who previously has submitted an adequate biological sample following a prior
adjudication or conviction is exempt from a second collection. Ibid. In most cases,
samples are acquired with a "buccal swab," a foam receptor that the offender
rubs between his or her teeth and cheek and holds under the tongue.
The swab is rolled on a card that changes color upon successful transfer.
See footnote 6
That card is the biological sample that is retained in the databank.
The biological samples are sent to the division and logged by bar code.
Each sample is "securely stored" in the "State DNA databank" maintained by the
division. N.J.S.A. 53:1-20.21; N.J.S.A. 53:1-20.23.
Each biological sample must be tested "in order to analyze and type the
genetic markers." N.J.S.A. 53:1-20.21. The division must employ an "identification system . .
. compatible with that utilized by the FBI." N.J.S.A. 53:1-20.23. The resulting DNA
profiles must be "securely stored in the State database," which is administered by
the division, and "forwarded to the FBI for inclusion in" the FBI's national
DNA identification index system.
See footnote 7
N.J.S.A. 53:1-20.19; N.J.S.A. 53:1-20.21; N.J.S.A. 53:1-20.23.
The "analysis" and "typing of genetic markers" conducted pursuant to this Act were
explained by Linda B. Jankowski, M.S., the biologist responsible for oversight of the
State Police DNA Laboratory and the Combined DNA Index System (CODIS) Unit. Thomas
F. Callaghan, Ph.D., Custodian for the National DNA Index System (NDIS) and Chairman
of its Procedures Board, described the testing and procedures for inter-state exchange of
profiles and information identifying the donor of a profile.
A sample is tested by measuring "tetra-nucleotide repeats, also [known] as short tandem
repeats ('STR's'), at each of thirteen specific regions on the human genome." According
to defendants' experts, the "test cannot be used to determine any personal information,
individual characteristics, or presenting or latent health defects . . . ." The
"thirteen loci are the international standard in DNA testing." Because the "regions are
highly variable between individuals, . . . this test is . . .
considered one of the most reliable tests for identification known in forensic science
today." The resulting profile is a series of numbers.
See footnote 8
As defendants' experts explained, offender profiles in the DNA State or National database
do not include any information identifying the person by name. The offender's "biographical
data" (e.g., name, date of birth) is kept in a separate system that
is linked to the profile only by a "bar code." The numeric DNA
profiles, without identifying information, are the data that comprise the Convicted Offender Index.
Agencies also maintain a separate Forensic Index that includes DNA developed from samples
collected at crime scenes.
The Act requires the division to adopt "rules governing the procedures to be
used in the submission, identification, analysis and storage of DNA samples and typing
results of DNA samples submitted . . . ." N.J.S.A. 53:1-20.23.
See footnote 9
Access to DNA profiles of offenders is statutorily limited. "All DNA profiles and
samples . . . shall be treated as confidential except as provided in
[N.J.S.A. 53:1-20.24]." N.J.S.A. 53:1-20.27. The authorizing statute permits access in two circumstances: upon
request from a law enforcement agency "in furtherance of an official investigation of
a criminal offense" and when authorized by court order.
See footnote 10
N.J.S.A. 53:1-20.24a. Access is
further circumscribed by subsection b of N.J.S.A. 53:1-20.24, which requires the division to
"adopt rules governing the methods of obtaining information from the State database and
CODIS and procedures for verification of the identity and authority of the requestor."
See footnote 11
By virtue of N.J.S.A. 53:1-20.24, a court order is needed before the division
may give any person, other than a law enforcement agent in connection with
an official criminal investigation, access to DNA profiles in the database. Thus, other
uses of "test results" authorized by N.J.S.A. 53:1-20.21 -- "research"; "judicial proceedings"; "criminal
defense purposes"; "identification of human remains from mass disasters" and "other purposes as
may be required under federal law as a condition for obtaining federal funding"
-- all require a court order. Unauthorized disclosure or dissemination of information included
in the database is punishable as a disorderly persons offense. N.J.S.A. 53:1-20.26.
The Act does not limit the time during which an offender's profile and
sample may be retained. It provides a right of expungement limited to an
offender whose underlying charge is dismissed after reversal of his or her conviction
or adjudication. N.J.S.A. 53:1-20.25.
See footnote 12
The extension of this Act to include all persons convicted or adjudicated delinquent
on the basis of conduct defined as a crime led to this litigation.
The legislative history includes an explanation for the expansion of the Act. The
sponsor of the bill explained that the goal was to "enhance the ability
of law enforcement to solve crimes." Statement of the Senate Budget and Appropriations
Committee to Assembly Bill No. 2617 (2003). He noted that "[o]ther states which
collect DNA samples for a wider range of crimes have experienced a large
increase in database 'hits,' particularly with respect to property crimes, such as burglary
and robbery." Ibid.
As defendants' experts explained, the STR technology now employed in DNA profiling permits
development of a profile from very small biological samples, "10,000 nanograms or less."
As a result, forensic profiles can be developed from "chewing gum, cigarette butts,
drinking cups and bottles, clothing, eyeglasses, or just about any item that comes
into substantial contact with sweat, skin, saliva, blood, semen, or any other bodily
fluid."
Defendants presented the results of a recidivism study that followed 272,111 prisoners released
in 1994 from prisons in fifteen states, one of which was New Jersey.
Patrick A. Lanagan and David J. Levin, U.S. Dept. of Justice, Bureau of
Justice Statistics, Special Report: Recidivism of Prisoners Released in 1994, p.1 (June 2002).
Of those prisoners, 81.4% had convictions prior to the one for which they
were incarcerated. Id. at 2. Within three years of release, 46.9% of the
prisoners had been convicted of a new crime. Id. at 3. Offenders that
had been incarcerated for property crimes, such as burglary, auto theft and fraud,
had the highest rate of rearrest, 73.8%, and drug offenders were second, with
a rearrest rate of 66.7%. Id. at 8.
III.
A. General Principles
The State and Federal Constitutions prohibit any search or seizure that is unreasonable.
U.S. Const. amends. IV, XIV; N.J. Const. art. I, ¶ 7. The purpose of
the constitutional prohibition is "to safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials." Camara v. Municipal Court,
387 U.S. 523, 528,
87 S. Ct. 1727, 1730,
18 L. Ed.2d 930, 935 (1967). This
is "a right of the people which is basic to a free society."
Ibid. (internal quotations omitted). It is fundamental that "no Act [no matter its
popularity or practicality] can authorize a violation." Almeida-Sanchez v. United States,
413 U.S. 266, 272,
93 S. Ct. 2535, 2539,
37 L. Ed.2d 596, 602
(1973). No state or federal appellate court that has considered the reasonableness of
a DNA database statute has found a violation of this basic right. See
Nicholas v. Goord,
480 F.3d 652, 658-59 (2d Cir. 2005); see, e.g., United
States v. Sczubelek,
402 F.3d 175, 184 (3d Cir. 2005) (federal); Padgett v.
Donald,
401 F.3d 1273, 1278 (11th Cir. 2005) (Georgia act); State v. Raines,
857 A.2d 19, 26-27 (Md. 2004) (Maryland act); see also United States v.
Kincade,
379 F.3d 813, 830-31, 831 n.25 (9th Cir. 2004) (en banc) (listing
and discussing decisions issued prior to that decision and overruling a panel decision
finding a constitutional violation); L.R., supra, 382 N.J. Super. at 617-19; O'Hagen, supra,
380 N.J. Super. at 145-51; Raines, supra, 857 A.
2d at 25-27 (listing cases).
See footnote 13
The collection and testing of a biological sample entails a seizure and search
which must be "reasonable" within the meaning of the Fourth Amendment and Article
I, paragraph 7 of the New Jersey Constitution. Skinner v. Railway Labor Executives'
Ass'n,
489 U.S. 602, 615-17, 617 n.4,
109 S. Ct. 1402, 1412-1413, 1413
n.4,
103 L. Ed.2d 639, 660, 660 n.4 (1989); Joye v. Hunterdon
Cent. Reg'l High Sch. Bd. of Educ.,
176 N.J. 568, 590 (2003); O'Hagen,
supra, 380 N.J. Super. at 141.
Because the Act, like comparable statutes, authorizes the collection and testing of biological
samples on the basis of a prior conviction or adjudication alone, the issue
is whether the intrusions are consistent with an exception to the warrant requirement.
Sczubelek, supra, 402 F.
3d at 182; Green v. Berge,
354 F.3d 675, 677
(7th Cir. 2004); see Skinner, supra, 489 U.S. at 619, 109 S. Ct.
at 1414, 103 L. Ed.
2d at 661; Joye, supra, 176 N.J. at
590. Because this Act does not require even individualized suspicion that a profile
will produce evidence, the intrusions must fall within the "closely guarded" category of
permissible suspicionless searches. Chandler v. Miller,
520 U.S. 305, 309,
117 S. Ct. 1295, 1298,
137 L. Ed.2d 513, 520 (1997).
B. The "Special Needs" Exception
In O'Hagen and L.R. this court held that the DNA testing mandated by
this Act falls within the "special needs" exception to the warrant requirement. L.R.,
supra, 382 N.J. Super. at 618; O'Hagen, supra, 380 N.J. Super. at 145-49.
Other courts have upheld similar statutes on the same basis. See, e.g., Nicholas,
supra, 430 F.
3d at 658-59; Green, supra, 354 F.
3d at 677-78; United States
v. Kimler,
335 F.3d 1132, 1146 (10th Cir. 2003).
See footnote 14
We agree with that
conclusion.
Searches conducted pursuant to "reasonable legislative or administrative standards" that further "special
needs, beyond the normal need for law enforcement" are excepted from the warrant
requirement of the Federal and State Constitutions. See Griffin, supra, 483 U.S. at
873, 107 S. Ct. at 3168, 97 L. Ed.
2d at 717; Treasury
Employees v. Von Raab,
489 U.S. 656, 674-75,
109 S. Ct. 1384, 1395,
103 L. Ed.2d 685, 708 (1989); Joye, supra, 176 N.J. at 590,
593-94 (applying the New Jersey Constitution). When a neutral statute or regulation authorizes
searches that further a "special need," the question is whether a balancing of
the governmental interests and the nature of the intrusion upon the individual's reasonable
expectations of privacy demonstrates that the search is "reasonable" under all the circumstances.
Von Raab, supra, 489 U.S. at 665-66, 109 S. Ct. at 1390-91, 103
L. Ed.
2d at 702-03; Joye, supra, 176 N.J. at 597 (assessing reasonableness
by weighing the individual's "expectation of privacy," the "obtrusiveness" of the search and
"the strength of the government's asserted need").
See footnote 15
Thus, the "special needs" exception is
more rigorous than exceptions that depend only upon an assessment of reasonableness under
the totality of the circumstances; that is so because the test requires both
a "special need" and a determination that the "special need" outweighs the individual's
privacy interest. Nicholas, supra, 430 F.
3d at 664 n.22.
Plaintiffs argue that the "special needs" exception cannot be applied here because the
Act's purpose is to provide a tool for law enforcement. N.J.S.A. 53:1-20.18. There
is some support for that argument. Kincade, supra, 379 F.
3d at 854-59 (Reinhardt,
J., dissenting); cf. Sczubelek, supra, 402 F.
3d at 184 (concluding that the special
need is supervision on probation and declining to apply the "special needs" exception
because DNA is retained beyond probation). We conclude, however, that plaintiffs' claim is
based on an unduly broad reading of decisions that have limited relevance here
and a failure to address other relevant precedents. See Green, supra, 354 F.3d
at 678-79. "[G]eneral language in judicial decisions [should be read] as referring in
context to circumstances similar to the circumstances then before the Court and not
referring to quite different circumstances that the Court was not then considering." See
Illinois v. Lidster,
540 U.S. 419, 424,
124 S. Ct. 885, 889,
157 L. Ed.2d 843, 851 (2004).
The Supreme Court explained that "special needs" means something other than the "normal
need for law enforcement" in Von Raab, a case approving drug testing of
certain customs agents related to their employment. 489 U.S. at 662-63, 109 S.
Ct. at 1389, 103 L. Ed.
2d at 700. But a year after
Von Raab, in Michigan Dep't of State Police v. Sitz,
496 U.S. 444,
450,
110 S. Ct. 2481, 2485,
110 L. Ed.2d 412, 420 (1990),
the Court approved a program of sobriety checkpoints established by law enforcement officers
to detect and deter drunk driving. The Court expressly rejected the claim that
the state was required to show a "need 'beyond the normal need' for
criminal law enforcement." Ibid. (noting that Von Raab "was in no way designed
to repudiate [] prior cases dealing with police stops of motorists on public
highways, which utilized a balancing analysis in approving highway checkpoints" (citations omitted)). Sitz
demonstrates that Von Raab cannot be read to bar reliance on "special needs"
whenever there is a law enforcement purpose.
See Nicholas, supra, 430 F.
3d at 679 (Lynch, J. concurring) (joining the court
in concluding that New York's DNA law serves special needs and noting that
"the line is thin between law enforcement's looking for drunk drivers to protect
the public, and looking for evidence of drunk driving to support a criminal
prosecution").
If there were any doubt about the impropriety of an overly broad reading
of Von Raab's reference to law enforcement purposes after Sitz, Illinois v. Lidster
further clarifies the point. Lidster, supra, 540 U.S. at 423-24, 124 S. Ct.
at 889, 157 L. Ed.
2d at 850. In that case, the Court
held that "special law enforcement concerns will sometimes justify" intrusions and found "reasonable"
a roadblock established to question motorists who might have information about a fatality.
Id. at 427, 124 S. Ct. at 890-91;
157 L. Ed 2d at
852.
Plaintiffs rely on two cases in which the Court invalidated programs established by
the police to search members of the general public for evidence of drug
crimes. In Indianapolis v. Edmond,
531 U.S. 32, 41-42,
121 S. Ct. 447,
454,
148 L. Ed.2d 333, 343 (2000), the Court found "unreasonable" a
roadblock set-up to allow drug-sniffing dogs to examine the exterior of cars and
held that the "special needs exception" did not apply because the roadblock was
established to "detect evidence of ordinary criminal wrongdoing." In Ferguson v. City of
Charleston,
532 U.S. 67, 81-82, 85 n.24,
121 S. Ct. 1281, 1290, 1292
n.24,
149 L. Ed.2d 205, 219, 221 n.24 (2001), the Court invalidated
a program to screen for drugs the urine of pregnant women who sought
medical care and reasoned that the "immediate objective" of the law-enforcement program was
"to generate evidence for law enforcement purposes," a goal it deemed "indistinguishable from
the general interest in crime control."
See footnote 16
There are more differences than similarities between the Act we review and the
discretionary law enforcement programs established in Ferguson and Edmond. This Act and comparable
DNA statutes are limited to offenders who have engaged in conduct defined as
a crime. Following their convictions or adjudications of delinquency on that basis, their
identity is a matter of legitimate interest to the government. Szubelek, supra, 402
F.
3d at 184. Establishment of a database to permit law enforcement to obtain
and share DNA profiles of such offenders is a "special need" different than
searches for evidence of crime among the general public. Green, supra, 354 F.3d
at 677; Kimler, supra, 335 F.
3d at 1146.
See footnote 17
This Act is about collection and maintenance of information identifying offenders, after guilt
is established, in order to detect and deter their recidivist acts, should there
be any; it is not about law enforcement officers electing to search the
general population with the hope of detecting criminal activity as in Ferguson and
Edmond. Kincade, supra, 379 F.
3d at 839 n.39 (noting that testing required by
statute and based upon conviction precludes arbitrary, capricious, harassing and illegitimate searches). The
program established by this Act is based on the Legislature's assessment of the
problem of recidivism, the need to bring violators to justice and the costs
and benefits of participating in a National system of criminal identification. N.J.S.A. 53:1-20.18.
The Supreme Court's decision in Griffin is more instructive than Ferguson and Edmond
in considering this Act. In Griffin, the Court held that the "special need"
of supervising persons on probation "permit[s] a degree of impingement upon privacy that
would not be constitutional if applied to the public at large" and upheld
a search of a probationer's home conducted pursuant to a reasonable regulation of
the probation department responsible for the offender's supervision. Griffin, supra, 483 U.S. at
873-75, 107 S. Ct. at 3168-69, 97 L. Ed.
2d at 717-18. The
Court explained that the reasons for authorizing "special needs" and "administrative" searches are
"similar" and reasoned that the government's "operation of a probation system," like its
"operation of a school, government office or prison, or its supervision of a
regulated industry, [] presents 'special needs' beyond normal law enforcement." Ibid.
Griffin relies on an earlier case involving an administrative search, United States v.
Biswell,
406 U.S. 311, 315-16,
92 S. Ct. 1593, 1596,
32 L. Ed. 2d 87, 92 (1972). In that case, the Court upheld a federal statute
authorizing warrantless inspections of licensed firearms dealers because of their importance to "assist[ing]
the States in regulating the firearms traffic within their borders" and ensuring the
transfer of firearms in "a traceable manner." Ibid. The New Jersey Supreme Court
also has likened searches based on "special needs" and "administrative searches." Joye, supra,
176 N.J. at 637-38 (citing In re Martin,
90 N.J. 295, 310-16 (1982),
which involved searches related to the casino industry)). The common feature of these
well-recognized exceptions to the warrant requirement is that the persons subject to search
are distinguished from members of the general public by conduct related to the
search.
The purpose and scope of the searches authorized by this Act is similar
to the purpose and scope in Griffin, curbing recidivism of probationers, and Biswell,
preventing and detecting crime by regulating and tracing firearms sales. Griffin, supra, 483
U.S. at 875, 107 S. Ct. at 3169,
97 L. Ed 2d at
718; Biswell, supra, 406 U.S. at 315-16, 92 S. Ct. at 1596, 32
L. Ed.
2d at 92; see Green, supra, 354 F.
3d at 677 (likening
administrative and special needs searches in approving DNA statute). Here the purpose is
deterring and detecting recidivist acts of prior offenders. N.J.S.A. 53:1-20.18; see Kimler, supra,
335 F.
3d at 1146.
See footnote 18
Our review of the decisions leads us to conclude that "special law enforcement
concerns" furthered by this Act support rather than bar application of the "special
needs" exception. The need beyond ordinary law enforcement is establishment of a database
that will allow officers throughout the state and country to link prior offenders
with forensic evidence and thereby detect recidivism and deter offenders who will know
about this tool. See N.J.S.A. 53:1-20.18. The potential to use fingerprints in detecting
the perpetrators of unsolved crimes has long been recognized as a justification for
not a bar to collection and retention of that data: "[f]ingerprints and photographs
are useful means for the recapture of escaped prisoners and detection of second
offenders . . . ." McGovern v. Van Riper,
37 N.J. Eq. 548,
549-50 (E. & A. 1946); Roesch v. Ferber,
48 N.J. Super. 231, 234-50
(App. Div. 1957) (discussing common law and statutory law authorizing fingerprinting); see N.J.S.A.
2A:4A-61; N.J.S.A. 53:1-15; Kincade, supra, 379 F.
3d at 873-74 (Kozinski, J. dissenting) (discussing
the development of the FBI's Integrated Automated Fingerprint Identification System). When compared with
fingerprinting, collection and retention of DNA involves a greater intrusion and greater potential
for disclosure of information in which law enforcement has no legitimate interest, but
the "special need" furthered is the same. Nicholas, supra, 430 F.
3d at 671
n.31. There is no authority for the proposition that Edmond, Ferguson and Von
Raab invalidate statutes that permit law enforcement officers to collect and share offenders'
fingerprints.
See footnote 19
For all these reasons, we join the courts that have concluded that DNA
statutes comparable to this Act further a special need beyond the ordinary law
enforcement objective of crime detection. Nicholas, supra, 430 F.
3d at 668-69; Green, supra,
354 F.3d at 678; Kimler, supra, 335 F.3d at 1146; L.R., supra, 382
N.J. Super. at 619; O'Hagen, supra, 380 N.J. Super. at 146-47. The question
that remains is whether that need is sufficient to justify the intrusions on
the privacy of offenders. See Nicholas, supra, 430 F.
3d at 666-67.
C. The Act strikes a reasonable balance between the compelling special needs it
furthers and the related invasions of privacy reasonably expected by the offenders.
Having determined that the "special law enforcement concerns" furthered by this Act qualify
as "special needs," we consider whether the identification program established is "reasonable" when
"the strength of the government's asserted need," the individual's "expectation of privacy" and
the "obtrusiveness" of the searches are weighed. Joye, supra, 176 N.J. at 594,
597.
1. The government's interests are compelling.
Recidivism is a serious problem, and the state's interest in detecting and deterring
it is "undeniably compelling." Kincade, supra, 379 F.
3d at 838-39. The statistics presented
below and discussed in Section II demonstrate the gravity of the concern.
Deterrence, including deterrence of recidivist acts, is a central component of New Jersey's
sentencing system. Its importance is reflected in the numerous sentencing laws that permit
or require enhanced punishment for repeat offenders. See, e.g., N.J.S.A. 2C:1-2b(2)-(3); N.J.S.A. 2C:44-1a(3),
(6), (9); N.J.S.A. 2C:43-6c, e, f, g; N.J.S.A. 2C:44-3a, d; N.J.S.A. 2C:43-7.1. The
connection between the effectiveness of the deterrent influence of criminal sanctions, the likelihood
of accurate detection of recidivist acts and a prior offender's perception of the
likelihood of detection is too apparent to require explanation. While the state's interest
in detection of an offender's new crimes diminishes somewhat when the offender completes
his or her sentence and the state no longer has an obligation or
right to supervise, it is not obliterated; the state's continuing interest in detecting
past and prior crimes is evidenced by laws that provide enhanced sentences for
repeat offenders regardless of the order of convictions. See, e.g., State v. Hawks,
114 N.J. 359, 367 (1989). The state's interest in deterrence does not diminish
and remains a compelling objective. Sczubelek, supra, 402 F.
3d at 185.
DNA profiles provide a uniquely reliable, efficient and unalterable means of identifying and
detecting perpetrators of crime that is central to deterrence. Ibid.; Green, supra, 354
F.
3d at 676. The numerical values that constitute a DNA profile are readily
compared with the numerical values of forensic profiles without subjective judgments. While it
is possible for an offender to alter his or her appearance or even
fingerprints, a person cannot alter his or her DNA. O'Hagen, supra, 380 N.J.
Super. at 146; see Sczubelek, supra, 402 F.
3d at 185 (discussing alteration of
identity); Jones, supra, 962 F.
2d at 307.
There are additional benefits to the criminal justice system. Accuracy in investigation and
prosecution serves the ends of justice, and the "DNA Act can reasonably be
said to advance" that compelling interest. Sczubelek, supra, 402 F.
3d at 185. One
need only consider the potential to eliminate suspects selected because of a faulty
identification or a police officer's suspicion based on similarities between a past crime
and one under investigation to recognize the benefit to an offender who becomes
the focus of an investigation on such bases. See, e.g., State v. Green,
86 N.J. 281, 293-94 (1981). While the database is not necessary to avoid
erroneous convictions (an offender can always produce his or her DNA to defeat
a mistaken identification in a case involving forensic DNA, N.J.S.A. 2A:84A-32a; State v.
Hogue,
175 N.J. 578, 584-85 (2003)), the database will provide an important means
of eliminating suspects before they become targets of an investigation. Sczubelek, supra, 402
F.
3d at 185. That is an outcome that will redound to a prior
offender's benefit and permit officers to refocus their efforts.
Plaintiffs point to anecdotal evidence of cross-contamination of forensic evidence and confusion of
DNA samples and argue that DNA profiling is fallible and presents a new
potential for misidentification, thereby undermining defendants' claims about the efficacy of the Act.
Because each offender's DNA is static, human error affecting offender profiles is readily
detectable. Moreover, there is no evidence that errors related to forensic evidence are
any more likely than errors related to partial fingerprints or eyewitness identifications; the
evidence suggests otherwise. Szcubelek, supra, 402 F.
3d at 184-85 (noting that DNA profiling
is more reliable than fingerprinting). The legal system is equipped to address testing
errors. See United States v. Morrow, 374 F. Supp.2d 51, 68 (D.D.C.
2005) (discussing arguments about DNA evidence based on laboratory deficiency and human error).
Plaintiffs also claim that the utility of this Act is undermined by the
breadth of the crimes that subject an offender to testing. They view many
of the predicate acts as unlikely to involve the transfer of bodily fluids
or a trail of the perpetrator's blood, but defendants' experts explained that DNA
profiles can be recovered from items not limited to the scenes of violent
crimes or sexual offenses -- e.g., cigarette butts, chewing gum, drinking cups, clothing
and other objects that come in contact with sweat, saliva or skin. On
that basis, it is apparent that the manner in which a perpetrator may
leave DNA evidence behind is neither predictable nor wholly dependent on the nature
of the crime. See, e.g., Hayes v. Florida,
470 U.S. 811,
105 S.
Ct. 1643,
84 L. Ed.2d 705 (1985) (burglar who also committed rape
left his fingerprint on a doorknob).
Moreover, plaintiffs' overbreadth argument rests on an assumption that recidivists repeat the same
crime, an assumption which is contradicted by the data on the experience of
the State of Virginia in "matching" profiles and forensic evidence. The data show
that 38% of violent crimes solved with DNA matches were perpetrated by offenders
who had previous convictions for property crimes. O'Hagen, supra, 380 N.J. Super. at
150 n.3; see Statement of the Senate Budget and Appropriations Committee, supra (noting
the increase in DNA matches in states that include profiles of offenders convicted
of property crimes).
See footnote 20
Given the evidence about DNA and recidivism, it would be difficult to select,
by crime, offenders from whom collection of DNA would be so inherently unproductive
as to undermine the substantiality of the state's interest in including their profiles
in the database. See J.G., supra, 151 N.J. at 581-87 (concluding that a
diversity of views about the efficacy of HIV testing was insufficient to void
a statute authorizing the tests). Irrefutable proof of efficacy in every case is
not required; evidence of some measurable effect in attaining the objectives of detecting
and deterring recidivist acts is adequate and sufficiently apparent here. See Joye, supra,
176 N.J. at 603; Jones, supra, 962 F.
2d at 308 (recognizing "greater utility
for use of DNA data . . . when the future crime is
one of violence," but upholding statute including non-violent crimes). "It is not for
us to weigh the advantages of one method of identification over another which
is selected by the" Legislature, at least where conduct classified as a crime
is at issue and the testing is limited to persons who have demonstrated
their willingness to commit acts that are defined as crimes. Jones, supra, 962
F.
2d at 308.
The Legislature is not indifferent to the effectiveness of the database. The Act
requires the Attorney General to prepare a report that "evaluate[s] the effectiveness, including
cost effectiveness, of having the samples available to further police investigations and other
forensic purposes." N.J.S.A. 39:5-41g (L. 2003, c. 183, § 6). That report, which is
due in March 2008, must include "the number of identifications and exonerations achieved
through the use of the samples" since 1994. Ibid. The fact that the
Act requires such a report is indicative of the lawmakers' commitment to a
system that is narrowly tailored to further the legitimate interests.
The Legislature's assumptions about the need and potential to deter recidivist acts are
reasonable and rational when based on prior acts of adult and juvenile offenders
over the age of fourteen, but we are not at all certain that
the same assumptions are rational when based on the conduct of younger children.
The Legislature has made a "clear [] determination that children under fourteen, no
matter how serious the offenses with which they are charged, simply are too
immature as a matter of law to be tried as an adult." In
re Registrant J.G.,
169 N.J. 304, 325 (2001). That determination is based on
views about a "child's capacity to take responsibility for criminal acts" and the
inefficacy of deterrent measures directed against children who have limited understanding. Id. at
327. That conclusive determination is at odds with any assumptions about the likely
recidivism of young children or the likely impact of a deterrent measure based
on their understanding of the enhanced prospects for detection.
While the Supreme Court has held that juveniles under the age of
fourteen may be required to register under Megan's Law, the purpose of that
law is to protect the public by disseminating information. The efficacy of the
measures included in Megan's Law is dependent upon assumptions about the recipients', not
the children's, capacity to understand. In re Registrant J.G., supra, 169 N.J. at
338-39 (rejecting claim that Megan's Law unconstitutionally restricts liberty); see Doe, supra, 142
N.J. at 86-87, 90; see also J.G., supra, 151 N.J. at 577-93 (approving
HIV testing of juveniles that provides information to victims).
We conclude that this Act establishes a database and databank that further the
state's compelling interest in deterring and detecting recidivist acts of prior offenders, at
least when applied to adult and juvenile offenders over the age of fourteen.
2. The offenders' reasonable expectations of privacy
and the obtrusiveness of each intrusion.
This Act entails several intrusions over a significant period of time. We consider
the obtrusiveness of each in light of the offenders' reasonable expectation of privacy
at the relevant time and the statutory provisions that minimize the intrusions.
The initial intrusion is the restriction on freedom of movement required to permit
application of the buccal swab or needle prick to collect the offenders' biological
sample. This Act permits that detention only while the offender is serving the
sentence imposed as a consequence of adjudication of delinquency or conviction. N.J.S.A. 53:1-20.20.
The additional momentary detention required for collection is not significant when viewed in
that context. See Doe, supra, 142 N.J. at 28 n.8 (summarily rejecting the
claim that the registration required by Megan's Law, even after sentence, unreasonably intrudes
upon the offenders who must appear to register and provide fingerprints); In re
Registrant J.G., supra, 169 N.J. at 339 (summarily rejecting claim that the registration
and notification requirements violate a fundamental right to freedom of movement). This intrusion
is kept to a minimum because the Act prohibits the harassment of repetitive
requests for biological samples. N.J.S.A. 53:1-20.22.
See footnote 21
The second intrusion is the collection of the biological sample. "[T]he intrusion occasioned
by a blood test, or a buccal swab, is minimal because 'such 'tests
are . . . a commonplace . . . and . . .
the procedure involves virtually no risk, trauma, or pain.''" L.R., supra, 382 N.J.
Super. at 619 (quoting O'Hagen, supra, 380 N.J. Super. at 148 (quoting Skinner,
supra, 489 U.S. at 625, 109 S. Ct. at 1417, 103 L. Ed.
2d at 665)). It does not implicate modesty. See Joye, supra, 176 N.J.
at 598-99 (distinguishing the intrusiveness of urine collection and buccal swabs). The collection
process is not unlike other conditions of sentence to which these offenders are
subject at the time. See Green, supra, 354 F.
3d at 680 (Easterbrook, J.
concurring) (noting that offenders sentenced to prison or a term of supervised release
are commonly required to submit to similar tests to detect illegal drugs).
The third intrusion is the testing that extracts the offenders' DNA profile from
the biological sample, which is a search. Under the protocols in place, that
search may be repeated after an offender has completed his or her sentence.
Defendants acknowledge that biological samples are retested, for purposes of quality control, prior
to disclosing the identity of the offender to a law enforcement agency that
believes it has forensic evidence that matches an offender profile. Defendants also admit
that in 1998, they retested all samples in the databank in order to
utilize new technology and develop profiles that can be compared with those included
in the National database. Because these searches may be performed after service of
sentence, we evaluate the obtrusiveness of this retesting from the perspective of offenders'
reasonable expectation of privacy post-sentence, when the offenders' interest is at its height.
The obtrusiveness of the testing depends on the data that may be extracted
pursuant to N.J.S.A. 53:1-20.21. See Skinner, supra, 489 U.S. at 626-27, 109 S.
Ct. at 1418, 103 L. Ed.
2d at 665-66 (noting that data extracted
from urine was limited to the presence of substances indicative of illegal drug
use not personal information about medical condition); Joye, supra, 176 N.J. at 599
(noting that positive drug tests attributable to medical conditions were reported as negative
to avoid disclosure of personal information not relevant to the testing program).
This Act permits only testing that is necessary "to analyze and type the
[offender's] genetic markers," N.J.S.A. 53:1-20.21, in accordance with a system "compatible with [the
identification system] utilized by the FBI." N.J.S.A. 53:1-20.23. The evidence in this case
demonstrates that the present testing protocol extracts numerical values that are, in themselves,
indicative of nothing other than identity, a DNA fingerprint. Thus, while testing extracts
information about identity that no one exposes to public view, it does not
permit law enforcement to obtain private information about medical conditions, thoughts, feelings and
propensities that are "deserving of a high degree of protection." Doe, supra, 142
N.J. at 88.
Because the Act does not authorize access to profiles or samples for purposes
of extracting information beyond the "genetic markers" necessary for identification, we are not
impressed by plaintiffs' claim that advances in technology and understanding of human DNA
may make future tests or review of profiles more intrusive. See Kincade, supra,
379 F.
3d at 849-51 (Reinhardt, J., dissenting) (upon which plaintiffs rely). Whether or
not it becomes possible to derive information about medical conditions, heredity, race or
criminal propensities from testing the thirteen loci that are examined with the STR
technology, this Act does not permit testing or cataloguing for such purposes. Moreover,
the division's obligation to adopt regulations, which we discuss in Section IV, ensures
compliance with that restriction. See Kincade, supra, 379 F.
3d at 837-38. A court
order is required to permit access for "research." Compare N.J.S.A. 53:1-20.21 (authorizing a
variety of uses), with N.J.S.A. 53:1-20.24 (permitting only law enforcement use without court
order).
Any post-sentence retesting of the sample that is limited to identifying information does
not involve an additional invasion of privacy. When limited to acquisition of identifiers,
a retest is comparable to a review of photographs or fingerprints on file
with the assistance of technology that permits magnification to ascertain more detailed information.
A review of the database of profiles is no different than a review
of photographs or fingerprints on file with the assistance of technology that permits
rapid, automated comparisons with a large number of photographs or fingerprints.
Because this Act prohibits any access to profiles for purposes unrelated to criminal
investigations without a court order, it does not implicate privacy interests in reputation,
avoidance of stigma or public disclosure of confidential information.
See footnote 22
Cf. Doe, supra, 142
N.J. at 99-109. Thus, the issue is an offender's post-sentence expectation in preventing
testing of a sample on file and a comparison of the DNA profile
with forensic evidence in connection with a law enforcement agency's official investigation of
a crime.
"A person convicted of a crime [or adjudicated delinquent] has a substantially diminished
expectation of privacy in his or her identity." L.R., supra, 382 N.J. Super.
at 619; see O'Hagen, supra, 380 N.J. Super. at 148; Sczubelek, supra, 402
F.
3d at 177; Kincade, supra, 379 F.
3d at 837; Groceman, supra, 354 F.3d
at 413-14; Green, supra, 354 F.
3d at 680 (noting that collection of identifying
information is rationally related to the criminal conviction). We disagree with the trial
judge's conclusion that completion of sentence revives a privacy interest relevant to use
of identifying information in a subsequent criminal investigation. See Green, supra, 354 F.3d
at 680 (Easterbrook, J., concurring) (noting a broad range of post-sentence measures that
"fall within the expected conditions . . . of those who have suffered
a lawful conviction" (quoting McKune v. Lile,
536 U.S. 24, 36,
122 S.
Ct. 2017, 2026,
153 L. Ed.2d 47, 59 (2002))).
Laws have long required law enforcement officers to retain fingerprints of persons convicted
of crime. N.J.S.A. 53:1-15. Since 1994, the Legislature has required fingerprinting of all
juveniles adjudicated delinquent on the basis of an act that would constitute a
crime if committed by an adult. N.J.S.A. 2A:4A-61c, d; L. 1994, c. 56,
§ 2; see In re S.S.,
273 N.J. Super. 31 (App. Div. 1994) (discussing
the expansion of the practice of fingerprinting juveniles between 1948 and the policies
of the Juvenile Code). Despite the rehabilitative goals of the juvenile justice system
that militate against disclosure of information linking juveniles and their adjudications, their fingerprints
are forwarded to the division for the "sole purpose of exchange between" law
enforcement agencies in and outside of this State. N.J.S.A. 2A:4A-61d; see N.J.S.A. 2A:4A-60;
N.J.S.A. 2A:4A-60.1; N.J.S.A. 2A:4A-61.
See footnote 23
Even after an adult or juvenile offender qualifies for expungement or sealing of
a juvenile record, fingerprints and other records remain accessible in the event of
recidivism. See N.J.S.A. 2C:52-20, -21, -22, -23, -27, -29; N.J.S.A. 2A:4A-62d; State v.
XYZ Corp.,
119 N.J. 416, 421 (1990). In sum, offenders do not have
an expectation of privacy that is restored after completion of sentence and relevant
to post-sentence testing of pre-acquired samples or use of profiles for purposes of
an official investigation of a crime.
3. The special needs furthered outweigh the minimal
intrusions entailed.
Our weighing of the relevant interests convinces us that this Act furthers special
needs beyond ordinary crime detection which substantially outweigh the obtrusiveness of the various
intrusions on the offenders' reasonable expectations of privacy.
The seizures and searches authorized are neither arbitrary nor left to the discretion
of law enforcement officers who seek to detect criminal conduct. They are mandated
by a comprehensive statutory scheme that is limited to persons on the basis
of their acts that must be established by the highest degree of proof
recognized in our legal system. The physical detention and intrusion involved in the
collection of a biological sample are brief, minimally intrusive and permitted on only
one occasion. Following conviction or adjudication of delinquency on the basis of conduct
constituting a crime, an offender has no reasonable expectation of keeping identifying information
from law enforcement officers investigating a crime, and the Act does not require
or permit extraction of private information or allow stigmatizing public disclosures. The Act
includes safeguards against unauthorized testing, in the form of regulations, and disclosure, in
the form of regulations and punishment of those who make unauthorized disclosures.
With respect to adults and juveniles over the age of fourteen at the
time of their qualifying conduct, the Act is tailored to further a compelling
special need beyond ordinary crime detection. These offenders have demonstrated their willingness to
engage in conduct that is defined as a crime, which gives the state
an interest in this means of deterring and detecting their recidivist acts.
For all these reasons, we hold that when applied to adults and juveniles
over the age of fourteen, the seizure and searches mandated by this Act
are constitutionally reasonable because the Act itself "satisfies the . . . reasonableness
requirement [of the State and Federal Constitutions] under well-established principles." Griffin, supra, 483
U.S. at 873, 107 S. Ct. at 3168,
97 L. Ed 2d at
717.
IV.
We must address the division's failure to adopt regulations required by the Act.
The Act requires the division to "adopt rules governing the procedures to be
used in the submission, identification, analysis and storage of DNA samples and typing
results of DNA samples submitted . . . ." N.J.S.A. 53:1-20.23. The division
also must "adopt rules governing the methods of obtaining information from the State
database and CODIS and procedures for verification of the identity and authority of
the requestor." N.J.S.A. 53:1-20.24b. Neither the record below nor our research has disclosed
any rules other than those adopted by the Department of Corrections concerning collection
of samples from offenders. See N.J.A.C. 10A:1-2.2; N.J.A.C. 10A:14-3A.1; N.J.A.C. 10A:14-3A.2.
The evidence defendants presented about the analysis performed in testing demonstrates that the
present testing procedures comply with the Act. Plaintiffs do not claim otherwise. Nonetheless,
the Act requires the division to adopt rules, and it must do so
in accordance with the Administrative Procedures Act (APA). N.J.S.A. 52:14B-1 to -15.
"The APA defines an administrative rule as an 'agency statement of general applicability
and continuing effect that implements or interprets law or policy, or describes the
organization, procedure or practice requirements of any agency.' N.J.S.A. 52:14B-2(e)." Doe, supra, 142
N.J. at 95. Without doubt, the testing protocol and rules governing access to
the profiles cannot be characterized as "statements concerning internal management" of the agency
that are exempt from the APA's rulemaking requirements. Id. at 95-96. The protocol
and rules have general applicability and a substantial impact on the rights of
the individuals tested. N.J.S.A. 52:14B-2(e); Doe, supra, 142 N.J. at 96; cf. State
v. Garthe,
145 N.J. 1, 7 (1996) (formal rulemaking not required to set
procedures for testing breathalyzer machines).
New forms of testing or expansion of the analysis of individual profiles (or
the collective profiles) to identify markers for medical or emotional conditions, characteristics or
propensities would be in conflict with the Act and present significant questions about
the privacy of offenders that are not implicated by present practices. See Doe,
supra, 142 N.J. at 96. While the Legislature's intention to preclude that sort
of analysis and limit data that may be extracted from biological samples to
identifying information is "clearly and obviously inferable from the law," the development of
testing protocols that meet that standard requires some "interpretation of [the Act]." Id.
at 96-97 (discussing the factors relevant to the question whether rule making in
accordance with the APA is required).
A formal rulemaking process is essential to permit both input by interested parties
and judicial and legislative review of decisions made by law enforcement officers and
those who operate laboratories, in light of advancing technology. See id. at 97.
That process is a critical component of the Act and what permits us
to find that the Act is reasonable in light of the offenders' privacy
interests.
This clarification and enforcement of the division's obligation to promulgate the rules that
are required by the Act addresses plaintiffs' legitimate concern that testing may become
far more obtrusive in the future. We hold that the division may not
employ a technology different than the one described in the certifications presented below
or conduct analysis of the individual or collective profiles for purposes other than
ascertaining the identity of each offender until it has promulgated rules in accordance
with the APA that define and delimit the testing and analysis. We further
hold that the division must promulgate the other rules required by this Act
as soon as is practicable. See Martin, supra, 90 N.J. at 324-25 (requiring
the agency to adopt regulations to safeguard private information gathered in connection with
regulation of the casino industry as a condition of collection).
V.
Finally, we consider plaintiffs' claim that the expungement remedy engrafted by the trial
judge is required to prevent unreasonable searches or as a matter of substantive
or procedural due process or New Jersey's doctrine of fundamental fairness. As we
understand it, plaintiffs' argument is that any post-sentence retesting of biological samples or
review of DNA profiles impinges upon privacy rights that are restored on completion
of sentence without justification supported by legislative or judicial findings about the individuals'
likely recidivism or the potential relevance of their DNA profiles. We reject the
claim.
Preliminarily, the Supreme Court has admonished against interchanging "the right of privacy inherent
in Article I, paragraph 1 . . . with the privacy interests that
otherwise would be reviewed under [the] Court's search-and-seizure jurisprudence" and expressed the Court's
preference for separation of "the two lines of analysis, reserving exclusively to Article
I, paragraph 7 any question implicating one's privacy interest in connection with a
governmental search . . . ." Joye, supra, 176 N.J. at 610-11. Adhering
to that approach, we discussed post-sentence retesting of samples