This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Addison Unit, Criminal Division. Helen M. Toor, J. (12-087).
On Appeal from Superior Court, Rutland Unit, Criminal Division. Cortland Corsones, J. (12-101).
On Appeal from Superior Court, Rutland Unit, Criminal Division. Cortland Corsones, J. (12-102).
On Appeal from Superior Court, Rutland Unit, Criminal Division. Cortland Corsones, J. (12-103).
On Appeal from Superior Court, Chittenden Unit, Criminal Division. Alison S. Arms, J. (12-207).
On Appeal from Superior Court, Windsor Unit, Criminal Division. M. Patricia Zimmerman, J. (12-231).
On Appeal from Superior Court, Orleans Unit, Criminal Division. Robert R. Bent, J (12-309).
William H. Sorrell, Attorney General, and Bridget C. Asay and John Treadwell, Assistant Attorneys General, Montpelier, for Plaintiff-Appellant.
Matthew F. Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendants-Appellants.
Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ. REIBER, C.J., dissenting.
[¶1] Defendants in these consolidated cases challenge as unconstitutional a recent amendment to Vermont's DNA-database statute that, as of July 1, 2011, mandates warrantless, suspicionless DNA collection and analysis from anyone arraigned for a felony after a determination of probable cause. 20 V.S.A. § 1933(a)(2). All five of the trial courts in these cases found that the amendment authorizes unconstitutional searches and seizures, either under the Vermont Constitution, Chapter I, Article 11, or under the Fourth Amendment to the U.S. Constitution, or both. We affirm, addressing only the compliance of the statute with the requirements of Article 11 of the Vermont Constitution.
[¶2] We repeat at the outset that our holding today pertains only to the Vermont Constitution and not to the U.S. Constitution. After the trial courts in these cases issued their opinions addressing both constitutions, the U.S. Supreme Court decided that a similar Maryland statute -- one that authorized warrantless, suspicionless DNA collection from persons arrested for violent crimes or burglary -- is constitutional under the Fourth Amendment. Maryland v. King, 133 S.Ct. 1958, 1980, 186 L.Ed.2d 1 (2013). We delayed our ruling in these cases to consider the import of King  and to allow additional briefing on the matter. Having done so, we recognize that there are two possible bases to differentiate this case from King : (1) the Vermont statute sufficiently differs from the Maryland statute involved in King to produce a different result under the Fourth Amendment;  and (2) the heightened standards and requirements of Article 11 of the Vermont Constitution compel a different result. We have examined the second basis and determined that the result is different. We have not analyzed the first possible basis in depth, although differences are noted as we encounter them. Nor does the outcome of the Fourth Amendment analysis determine compliance with the Vermont Constitution, as we have firmly established that Article 11 is more protective in this area than its federal counterpart. State v. Cunningham, 2008 VT 43, ¶ 16, 183 Vt. 401, 954 A.2d 1290 (" We have consistently held that Article 11 provides greater protections than its federal analog, the Fourth Amendment ... ." (citing State v. Berard, 154 Vt. 306, 576 A.2d 118
see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985) (expounding on the necessity of state constitutional analysis that is independent from federal constitutional analysis, with particular reference to Article 11 as distinct from the Fourth Amendment). We strike down the amendment to 20 V.S.A. § 1933 as unconstitutional solely under Vermont Constitution Chapter I, Article 11. Although we discuss King, it is only to determine whether we would adopt parts of its reasoning in our Article 11 analysis.
[¶3] With that preamble, we begin with a discussion of the evolution of the statute and its DNA-collection mandate. We then turn to a summary of our own Article 11 jurisprudence as it currently exists regarding the specialneeds doctrine. Next, we examine and distinguish King, as well as a handful of other Fourth Amendment decisions that we find to be helpful in determining the contours of Article 11. Finally, we apply our Article 11 special-needs doctrine to the case at hand.
[¶4] As an initial matter, Vermont's statutory scheme creates both a DNA data bank, which contains the DNA samples, and a DNA database, which contains the DNA records (also known as " profiles" ) derived from the DNA samples. 20 V.S.A. § § 1932(10)-(11), 1938(c)-(d). In 1998, Vermont created the statewide DNA data bank and database and began populating them by collecting and analyzing DNA from those convicted of any statutorily defined " violent crime." 1997, No. 160 (Adj. Sess.), § 1 (codified at 20 V.S.A. § 1932(12), which defined " violent crime,"  and § 1933(a), which required a DNA sample from any person convicted of a violent crime). In 2005, the Legislature expanded the statutory mandate to require a DNA sample and profile from all those convicted of any felony or attempted felony. 2005, No. 83, § § 7, 8 (codified as amended at 20 V.S.A. § § 1932(12), 1933). We upheld this expansion as constitutional under Article 11 in State v. Martin, 2008 VT 53, ¶ 35, 184 Vt. 23, 955 A.2d 1144. The most recent amendment, enacted in 2009, expands further those subject to DNA sampling by adding the following language: " The following persons shall submit a DNA sample: ... A person for whom the court has determined at arraignment there is probable cause that the person has committed a felony in this state on or after July 1, 2011."  2009, No. 1, § 24 (codified
at 20 V.S.A. § 1933(a)(2)). It is this requirement, expanding mandatory DNA sampling to those merely charged with a felony, but not yet convicted, that defendants challenge here. Hereinafter, we refer to felony charges on which probable cause has been found as " qualifying charges."
[¶5] The current laws governing the data bank and database are codified at 20 V.S.A. § § 1931-1946. Other than the expansion, described above, of the classes of people subject to DNA sampling under the scheme, the law remains essentially unchanged since 1998. The policy section of the database and data bank law, § 1931, reads as follows:
It is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification, detection, or exclusion of individuals who are subjects of the investigation or prosecution of crimes. Identification, detection, and exclusion may be facilitated by the DNA analysis of biological evidence left by the perpetrator of a crime and recovered from the crime scene. The DNA analysis of biological evidence can also be used to identify missing persons.
The law allows analysis of DNA samples only " for law enforcement identification purposes," " to assist in the identification of human remains," and, " if personal identifying information is removed, for protocol development and administrative purposes."  Id. § 1937(a). It also provides that DNA records " in appropriate circumstances ... may be used to identify missing persons." Id. § 1941(b). The statute specifically prohibits analysis " for identification of any medical or genetic disorder." Id. § 1937(b).
[¶6] The DNA sample is analyzed to produce a record, or profile, of identification information from the DNA loci specified for the Combined DNA Index System (CODIS), the national DNA repository maintained by the Federal Bureau of Investigation. Id. § 1932(4). Both the sample and its associated record may " be provided to law enforcement agencies for lawful law enforcement purposes." Id. § 1938(a). The tissue or fluid from which the DNA is extracted " may be provided to law enforcement agencies only for DNA sample analysis for use in any investigation and prosecution." Id. § 1938(b). The Vermont database shares its DNA profiles with the national CODIS database. Id. § § 1936, 1938(e), 1939(b).
[¶7] The Legislature included several provisions to safeguard the integrity of the database and data bank and the privacy of the personal information contained therein. The statutes contain a general confidentiality requirement, id. § 1941(a), impose criminal penalties for breach of that requirement, id. § 1941(c), and allow a private right of action for equitable relief and damages, including punitive damages and reasonable attorney's fees, id. § 1941(d). Criminal and civil penalties also attach to tampering or attempted tampering with DNA samples. Id. § 1945. Additionally, for those convicted of a qualifying offense, DNA records must be expunged and samples destroyed if the qualifying offense is
pardoned, or reversed and dismissed. Id. § 1940(a)(1)-(2). For those whose DNA is collected after arraignment on a qualifying charge, DNA records must be expunged and samples destroyed if the qualifying charge is dismissed or pled down to a nonqualifying charge, or if the qualifying charge is acquitted or downgraded to a nonqualifying charge at trial. Id. § 1940(a)(3)-(5). If, before the record is expunged, it yields a match with another record in the state or federal system, the record of that match is retained even though the sample itself and the original record are destroyed. Id. § 1940(d).
[¶8] In its implementation of the database and data bank law, the State incorporates further safeguards to protect DNA privacy and minimize the intrusion on the individual. The law provides for the DNA sample to be extracted from a blood draw unless a " less intrusive means" of collection is available. Id. § 1934. The State's current practice is to collect the sample via a cheek swab.
See Martin, 184 Vt. 23, 2008 VT 53, ¶ 22, 955 A.2d 1144. For purposes of this analysis we will assume, as we did in Martin, that the State uses only cheek swabs to collect DNA. Id. We do not analyze any other method of collection, nor have the parties asked us to do so.
[¶9] The State maintains a separate database for convicted-offender records, arraignee records, and unknown forensic-sample records (i.e., unsolved crime samples). The DNA samples, the DNA records generated from the samples, and the identifying information of the subject -- name, date of birth, fingerprints, height and weight -- are all kept in separate files, with only a common numeric identifier to link them together.
[¶10] DNA profiling is accomplished by analyzing a DNA sample at thirteen standard loci within a subject's chromosomes to determine which genetic variations are present at each location. The thirteen loci were originally selected as a national standard because they are highly variable among individuals and because they were thought to have no known associations with disease or other personal medical information. When a DNA sample is analyzed, the variations at these locations are identified as a series of numbers and letters. This string of numbers and letters constitutes the " profile" that is uploaded to the state and federal (CODIS) data banks.
[¶11] Defendants in these cases have all been arraigned on qualifying charges and subsequently refused to give a DNA sample. The State moved to compel them to do so, and they have each had a hearing on the issue pursuant to 20 V.S.A. § 1935(b). At their sampling hearings, each claimed that the statute violates the Vermont Constitution.
See State v. Wigg, 2007 VT 48, ¶ 5 n.3, 181 Vt. 639, 928 A.2d 494 (mem.) (stating that constitutional issues may be raised at such hearings despite statutory proscriptions limiting the nature of the hearing). As discussed below, see infra ¶ ¶ 26-27, all five trial courts agreed with defendants that mandatory DNA sampling prior to conviction runs afoul of Article 11,
albeit each with slightly different reasoning.
[¶12] Article 11 of the Vermont Constitution protects against unlawful searches and seizures. Vt. Const. ch. I, art. 11. We have previously determined that the DNA sampling mandated by § 1933 constitutes two distinct searches under Article 11: " The initial taking of the DNA sample, either by blood draw or by buccal swab, and the subsequent analysis, storage and searching of the DNA profile are independent intrusions upon personal security that merit scrutiny under Article 11." Martin, 184 Vt. 23, 2008 VT 53, ¶ 14, 955 A.2d 1144 (discussing the 2005 amendment to § 1933, mandating DNA sampling from all convicted felons).
[¶13] [3-5] Article 11 states as follows:
That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.
Vt. Const. ch. I, art. 11. Article 11 thus requires both a " warrant" and " oath or affirmation ... affording sufficient foundation" -- also known as probable cause. See State v. Berard, 154 Vt. 306, 310-11, 576 A.2d 118, 120-21 (1990) (stating that Article 11 contains warrant and probable cause requirements). " The language of Article 11 does not expressly limit its protection to 'unreasonable' searches and seizures as does the Fourth Amendment to the United States Constitution. This Court, however, has consistently interpreted Article 11 as importing the 'reasonableness' criterion of the Fourth Amendment." Id. at 309, 576 A.2d at 120 (citing State v. Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986)). " Although warrantless searches are sometimes permitted under Article 11, these exceptions must be 'jealously and carefully drawn.'" State v. Savva, 159 Vt. 75, 85, 616 A.2d 774, 779 (1991) (quoting Jewett, 148 Vt. at 328, 532 A.2d at 960). Warrantless searches are thus per se unreasonable. State v. Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584 (1979). " The warrant requirement favors decisionmaking by the judicial branch, a neutral and detached magistrate, rather than by the executive branch, the officer engaged in the often competitive enterprise of ferreting out crime." Savva, 159 Vt. at 86, 616 A.2d at 780 (quotation omitted). The warrant requirement likewise favors judicial decisionmaking over legislative decisionmaking -- that is, evaluations made on a case-by-case basis, with particularized suspicion, rather than on the issuance of " general warrants"
-- or laws that may essentially function as general warrants. State v. Record, 150 Vt. 84, 86, 548 A.2d 422, 424 (1988). We generally afford legislative enactments the presumption of constitutionality. See State v. Hance, 2006 VT 97, ¶ 6, 180 Vt. 357, 910 A.2d 874. In this case, however, the presumptive unconstitutionality of warrantless searches and seizures trumps our baseline deference to the Legislature.
See State v. Birchard, 2010 VT 57, ¶ 17, 188 Vt. 172, 5 A.3d 879 (" Where defendant had an expectation of privacy ... the burden then shifts to the State to show a warrantless search is not prohibited under Article 11." ). Defendants, like the rest of us, have an expectation of privacy in their oral cavity and in the information contained in their DNA. See Martin, 184 Vt. 23, 2008 VT 53, ¶ 21, 955 A.2d 1144 (identifying the two privacy intrusions). The State therefore has the burden to prove the constitutionality of 20 V.S.A. § 1933(a)(2). Id. ¶ 9.
[¶14] With that said, " Article 11 does not contemplate an absolute prohibition on warrantless searches or seizures." Id. (quoting Welch, 160 Vt. at 78-79, 624 A.2d at 1110). But we do not depart from the standard lightly. As we have stated before: " this Court will abandon the warrant and probable-cause requirements, which constitute the standard of reasonableness for a government search that the Framers established, only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Berard, 154 Vt. 306 at 310-11, 576 A.2d at 120-21 (quotation omitted). If we find a special need, our next step is to " turn to a balancing of the competing public and private interests at stake." Martin, 184 Vt. 23, 2008 VT 53, ¶ 21, 955 A.2d 1144.
[¶15] We announced the " special needs" exception to the warrant requirement of Article 11 in the context of approving random, suspicionless searches of prison inmates' cells. Berard, 154 Vt. at 311, 576 A.2d at 121. We determined that " [r]equiring the State to demonstrate that it has special needs for a warrantless, suspicionless search or seizure 'focuses attention on the nature and extent of those needs and allows the courts ... to pursue the necessary balancing test in a manner calculated to interfere least with preservation of [individual] rights.'" Martin, 184 Vt. 23, 2008 VT 53, ¶ 9, 955 A.2d 1144 (quoting Berard, 154 Vt. at 311, 576 A.2d at 121). Once the State has proven its special need, beyond the ordinary needs of law enforcement, we balance the strength of the State's need against the privacy intrusion. Id.
[¶16] In the prison context in Berard, we based our conclusion that the State had met its burden of proving special needs " in part on the inexorable nature of prison governance in general and in part on the particular circumstances of the facts found by the trial court." 154 Vt. at 312, 576 A.2d at 121. As to the nature of prison governance in general, we found that " if the prisoners' right to privacy prevented random prison cell searches, it would be impossible to accomplish the objectives of guarding against drugs and other contraband, like illicit weapons, thwarting escape, and maintaining a sanitary and healthful environment." Id. at 312, 576 A.2d at 121-22. As to the particular circumstances found by the trial court, we noted the trial court's statements that " [p]ossession of contraband by inmates is an ongoing concern among correctional officials," that the commissioner of corrections is statutorily obligated to " maintain security, safety and order," and that " it is difficult to see how the department [of corrections] could fulfill its primary objective
of the disciplined preparation of offenders for their responsible roles in the open community, if it did not have an effective procedure for detecting contraband." Id. at 313, 576 A.2d at 122 (quotations and citations omitted).
[¶17] We also found a public-safety-related special need in the context of a warrantless seizure of a gun from a car that was about to be impounded after a driving-while-intoxicated stop in State v. Richardson, 158 Vt. 635, 636, 603 A.2d 378, 379 (1992) (mem.). The seizure was justified by the " obvious prudence" of removing the gun, in comparison to the " unacceptable danger to the public at large" if the gun were left in place. Id. at 635-36, 603 A.2d at 379.
[¶18] In the case we have often cited as the precursor to our special-needs jurisprudence, we upheld random roadside sobriety checkpoints as compliant with Article 11. Record, 150 Vt. at 90, 548 A.2d at 426. Such seizures were acceptable because they " enabled the police to apprehend intoxicated drivers who may have otherwise posed a serious threat to society." Id. at 86, 548 A.2d at 424. In addition, Article 11's proscription on general warrants was mitigated because " the written police guidelines prevented arbitrary police conduct, and the scope of the roadblock was narrowly drawn." Id.
[¶19] In the probation context, although we did not rely on the special needs test per se, we found that a warrantless (but not suspicionless) search of a probationer's home was acceptable in part because of the " special needs of the state in administering its probation program" and in part because " if a probation term provides for warrantless searches and the terms of the probation are narrowly tailored to fit the circumstances of the individual probationer, the Griffin 'reasonable grounds' standard strikes the proper balance between probationer privacy rights and public protection concerns." State v. Lockwood, 160 Vt. 547, 559, 632 A.2d 655, 663 (1993) (relying on the reasoning of Griffin v. Wisconsin, 483 U.S. 868, 875-76, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), which held that the special needs of probation supervision allowed for warrantless searches justified by " reasonable grounds" rather than by probable cause). Our reasoning in that case relied on the public-protection goals of the probation system, as balanced against the diminished privacy rights of probationers. Id. at 559-60, 632 A.2d at 663.
[¶20] Finally, in the context of DNA sampling of convicted felons under 20 V.S.A. § 1933 in Martin, we found special needs beyond the normal needs of law enforcement. We borrowed from the reasoning of the New Jersey Supreme Court under the Fourth Amendment and the New Jersey state analog and found that " the central purposes of ... DNA testing are not intended to subject the donor to criminal charges," 184 Vt. 23, 2008 VT 53, ¶ 16, 955 A.2d 1144 (quoting State v. O'Hagen, 189 N.J. 140, 914 A.2d 267, 278 (N.J. 2007)), despite the defendants' insistence that the policy objectives listed in § 1931 stated otherwise. Rather, we decided that the purposes of " creat[ing] a DNA database and ... assist[ing] in the identification of persons at a crime scene should the investigation of such crimes permit
resort to DNA testing of evidence" are beyond ordinary law enforcement purposes. Martin, 184 Vt. 23, 2008 VT 53, ¶ 16, 955 A.2d 1144 (quoting O'Hagen, 914 A.2d at 279). Such a " long-range special need ... does not have the immediate objective of gathering evidence against the offender." Id. (quoting O'Hagen, 914 A.2d at 278). Recognizing that using DNA to determine who committed a past crime is fulfilling an ordinary law enforcement purpose, Martin drew a distinction between past and future crimes in the paragraph expressing its central holding:
We conclude that the O'Hagen reasoning also applies under Article 11, and that DNA sampling and analysis to assist in identifying persons at future crime scenes is a special need beyond normal law enforcement. Vermont's DNA database statute has as its stated purpose " to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes." 20 V.S.A. § 1931. These purposes ...