Mario W. v. Hon. kaipio/state

SUPREME COURT OF ARIZONA
En Banc

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

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

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

AFFIRMED
________________________________________________________________

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

VACATED
________________________________________________________________

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

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

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

H U R W I T Z, Vice Chief Justice

¶1 Arizona law requires juveniles charged with certain

offenses and summoned to appear at an advisory hearing to submit

to the investigating law enforcement agency “a sufficient sample

of buccal cells or other bodily substances for deoxyribonucleic

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

penalty for failure to comply is revocation of release pending

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

statutory scheme violates the Fourth Amendment prohibition

against unreasonable searches and seizures.

I.

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

separately charged with violations of offenses specified in § 8-

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

ordered to submit a buccal sample to law enforcement within five

days. In each case, the superior court rejected Fourth

Amendment objections to the sampling order.

¶3 The Juveniles then jointly filed a special action in

the court of appeals. That court accepted jurisdiction and a

divided panel held that requiring the submission of DNA samples

from five juveniles for whom a probable cause determination has

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

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

The majority reasoned that a judicial finding of probable cause

is a “watershed event” that reduced these juveniles’

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

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

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

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

Amendment forbids the DNA sampling of the two juveniles for whom

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

¶ 2, 265 P.3d at 392.2

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

review. We granted both petitions to address a recurring legal

issue of statewide importance. We exercise jurisdiction

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

and A.R.S. § 12–120.24 (2003).

II.

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

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

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

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

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

identification system, see § 41-2418 (establishing state

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

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

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

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

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

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

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

determination. Id. at 219-20 ¶¶ 39-43, 265 P.3d at 401-02
(Orozco, J., concurring in part and dissenting in part).

3
Other provisions of Arizona law not at issue today require
DNA profiling of various non-juveniles, including convicted
felons, those arrested for certain crimes, probationers, and
parolees. See A.R.S. § 13-610(A)–(D), (K), (L).

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

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

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

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

adjudication is overturned on appeal or in a postconviction

relief proceeding).

III.

A.

¶6 Before addressing the constitutional claims raised by

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

at issue in this case.

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

search or seizure governed by the Fourth Amendment.

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

had been adjudicated delinquent for the charged crimes when

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

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

governs DNA sampling and profiling. Neither the State nor the

Juveniles contest that post-adjudication sampling and profiling

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

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

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

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

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

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

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

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

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

profiling of conditional releasees).

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

DNA profile will provide evidence that any of these juveniles

committed the charged offenses. Nor does the State even

reasonably suspect that a juvenile committed another offense for

which the DNA profile might provide investigative assistance.

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

Amendment would permit seizures for the purpose of

fingerprinting, if there is reasonable suspicion that the

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

basis for believing that fingerprinting will establish or negate

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

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

temporary detention for investigative fingerprinting upon

judicial order).

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

samples and resulting profiles for “law enforcement

identification purposes,” the State does not seek a profile

simply to identify any juvenile in the normally accepted use of

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

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

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

statutory phrase includes not only authentication of a

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

whether the juvenile has committed other uncharged crimes.

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

and national databases, and are available to law enforcement

officers throughout the country for investigative purposes, it

is plain that the legislature intended the profile to be used

for purposes other than simply confirming the name of the person

charged with the current crime.4

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

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

crimes and providing unique identification information about an

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

case suggest - that these law enforcement goals would justify

DNA sampling and profiling of ordinary citizens. See Haskell,

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

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

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

that the majority and the dissent agreed on the

unconstitutionality of such a procedure).

B.

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

consistent with the Fourth Amendment, compel these Juveniles to

submit to DNA extraction and profiling as a condition of

release?

¶13 The Fourth Amendment to the United States Constitution

provides:

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

It has been long established that warrantless searches “are per

se unreasonable under the Fourth Amendment – subject only to a

few specifically established and well-delineated exceptions.”

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

jurisprudence also long taught that even searches excepted from

the warrant requirement could be conducted only on probable

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

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

the Fourth Amendment allowed temporary seizures based on

10 
something less than probable cause – reasonable suspicion.

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

¶14 The Court has also upheld searches in certain

circumstances absent any showing of probable cause or reasonable

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

search mandated as a condition of parole does not violate the

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

might have premised Samson on a consent theory, it instead

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

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

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

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

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

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

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

earlier employed a totality of the circumstances analysis to

uphold the suspicionless search of a probationer. United States

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

upheld strip searches of jail detainees without any showing of

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

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

not explicitly employing a totality of the circumstances test,

Florence also balanced the government’s interests in safety and

11 
orderly jail administration against the reduced privacy

interests of detainees. Id.

¶15 No Arizona or United States Supreme Court case,

however, addresses the constitutionality of suspicionless pre-

conviction DNA testing. The case law elsewhere is sharply

divided. Maryland’s highest court recently found that DNA

profiling of arrestees violated the Fourth Amendment. King v.

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

held, distinguishing the post-conviction cases because arrestees

have a higher expectation of privacy than convicted felons.

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

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

App. 2006).

¶16 Several other courts, however, have found DNA

profiling of arrestees reasonable under the Fourth Amendment.

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

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

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

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

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

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

the government’s interests in identifying arrestees and solving

crimes outweigh an arrestee’s diminished expectations of

privacy.

12 
¶17 Most courts considering the constitutionality of DNA

sampling and profiling have employed the totality of the

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

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

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

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

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

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

dispute the applicability of the totality of the circumstances

test, and we therefore analyze the Arizona scheme under that

rubric.

C.

¶18 We begin by recognizing that the Arizona statutory

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

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

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

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

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

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

2010) (describing process of extracting profiles from DNA

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

sampling and profiling involved two searches — “the physical

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

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

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

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

¶19 This approach is consistent with precedent outside the

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

Supreme Court analyzed separately the legality of the seizure of

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

initial seizure reasonable but finding the later search

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

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

justified under the circumstances in seizing a purse during a

Terry stop, the same justification does not automatically allow

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

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

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

the constitutionality of the seizure of a closed container and

subsequent opening of the container).

¶20 These cases recognize that even when law enforcement

exigencies justify an initial limited intrusion on Fourth

Amendment protected interests, a greater showing is required for

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

particularly appropriate in the DNA sampling and profiling

context because the two searches implicate different privacy

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

but does not reveal by itself intimate personal information

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

reveals uniquely identifying information about individual

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

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

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

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

1.

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

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

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

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

a buccal swab as a similarly minimal intrusion into an

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

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

¶22 We agree. While taking fingerprints, law enforcement

officers will often touch the body of an arrestee or restrain

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

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

submit to fingerprinting). The arrestee is required to press

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

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

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

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

significantly greater than fingerprinting. Indeed, in some

instances arrestees apparently take their own buccal swabs. See

Haskell, 669 F.3d at 1057.

¶23 But even if extracting the cell sample does not

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

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

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

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

whether, and to what degree, that intrusion serves important

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

¶24 The State offers various justifications for the

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

here, a juvenile is released pending adjudication and later

fails to appear for trial without previously having submitted a

buccal sample, the opportunity to obtain a DNA profile for

identification purposes will have been lost. The State has an

important interest in locating an absconding juvenile and,

perhaps years after charges were filed, ascertaining that the

person located is the one previously charged. If the State

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

may never have another opportunity to do so.

¶25 This exigency justifies obtaining a buccal cell sample

even if a formal judicial determination of probable cause was

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

were ordered to submit samples before a probable cause

determination was made, each had been charged with a serious

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

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

be fingerprinted before a judicial determination of probable

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

buccal cell sample occasions no constitutionally distinguishable

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

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

Juveniles.

6
The Supreme Court appears never to have expressly held that
the process of fingerprinting, as opposed to detaining an
individual for that purpose, constitutes a search or seizure
under the Fourth Amendment. Compare Hayes v. Florida, 470 U.S.
811, 814 (1985) (stating that “fingerprinting, because it
involves neither repeated harassment nor any of the probing into
private life and thoughts that often marks interrogation and
search, represents a much less serious intrusion upon personal
security than other types of searches and detentions”) with
United States v. Dionisio, 410 U.S. 1, 14-15 (1973) (comparing
voice exemplars to fingerprinting, and finding that neither
involve significant probing such that a search has occurred).
We assume for present purposes, however, that fingerprinting,
albeit minimally intrusive, constitutes a search or seizure.

7
A probable cause finding is required under Juvenile Rule
23(D) for the detention of a juvenile. See Mario W., 228 Ariz.
at 219 ¶¶ 40-41, 265 P.3d at 401 (Orozco, J., concurring in part
and dissenting in part). Not all juveniles, however, are
detained before an advisory hearing. See Ariz. R.P. Juv. Ct.
28(B)(1)-(2). The order to submit buccal cell samples under
§ 8-238(A), as this case illustrates, may thus precede a
probable cause determination, and it is that order, not any
eventual detention, that the two juveniles challenged below.
17 
 2.

¶26 The State argues that once it has lawfully obtained

the cell samples, the Fourth Amendment provides no greater bar

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

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

State’s reliance on the fingerprinting analogy here is

misplaced. Once fingerprints are obtained, no further intrusion

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

used for investigative purposes. In this sense, the fingerprint

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

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

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

Forensics: Criminal Justice, False Certainty, and the Second

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

(2007).

¶27 This second search presents a greater privacy concern

than the buccal swab because it involves the extraction (and

subsequent publication to law enforcement nationwide) of

thirteen genetic markers from the arrestee’s DNA sample that

create a DNA profile effectively unique to that individual.

Ashley Eiler, Note, Arrested Development: Reforming the Federal

All-Arrestee DNA Collection Statute to Comply with the Fourth

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

nature of the information obtained by analyzing DNA samples for

18 
inclusion in CODIS rather than the bodily intrusion of the

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

may constitutionally extract DNA profiles from the buccal swabs

of those who are eventually convicted, the essential issue is

whether the governmental interest in obtaining the DNA profiles

before trial is sufficient to justify the second search.

¶28 For juveniles not eventually adjudicated delinquent,

we can perceive no strong governmental interest in creating DNA

profiles in the short period between the advisory hearing and

the adjudication. The state and federal statutes providing for

the expungement from databases of profiles obtained from

arrestees not subsequently convicted recognize that these

profiles should not be used for law enforcement purposes after

adjudication, and given the constitutional presumption of

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

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

DNA: The Evolving Nature of DNA Collection Statutes and Their

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

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

arrestees).

¶29 Indeed, whether or not the juvenile is eventually

adjudicated delinquent, the benefit to law enforcement of

obtaining a DNA profile in the few weeks between the advisory

hearing and trial is speculative at best. The buccal sample

19 
will not typically be processed until weeks after it is

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

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

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

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

suggest that the process in Arizona is speedier. Adjudication

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

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

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

afforded five days after the advisory hearing to submit the

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

not be significantly delayed by deferring processing of the

sample until the typical juvenile is adjudicated delinquent.

¶30 As noted above, some juveniles released pending

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

their identification and recapture. But because the State

already will have obtained a buccal sample from those complying

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

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

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

access to the profile will hinder recapture efforts. Indeed,

because a juvenile accused of a serious offense but released

pending adjudication will already have been determined by a

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

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

samples is even more speculative.

¶31 We recognize that DNA profiles are an important law

enforcement tool for investigating crimes other than those

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

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

“been primarily to supplement or supplant fingerprints as

markers of true identity but rather to generate investigate

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

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

(forthcoming Summer 2012), available at

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

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

DNA profile before adjudication may conceivably speed such

investigations. But one accused of a crime, although having

diminished expectations of privacy in some respects, does not

forfeit Fourth Amendment protections with respect to other

offenses not charged absent either probable cause or reasonable

suspicion. An arrest for vehicular homicide, for example,

cannot alone justify a warrantless search of an arrestee’s

financial records to see if he is also an embezzler.

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

the serious intrusion on the privacy interests of the Juveniles

occasioned by the second search – the extraction of the DNA

21 
profile from the buccal swab before adjudication or failure to

appear. The swab remains available for processing thereafter,

and no exigency exists warranting an earlier suspicionless

search.

IV.

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

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

for proceedings consistent with this opinion.

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

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