People v. Garvin

Docket No. 99031.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RAYMOND E. GARVIN, Appellant.

Opinion filed March 23, 2006.

JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Garman, and
Karmeier concurred in the judgment and opinion.
Justice McMorrow, joined by Justice Freeman, specially
concurred.

OPINION

In this case, defendant Raymond E. Garvin challenges the circuit
court of Du Page County=s denial of his motion to quash arrest and
suppress evidence and, in an issue of first impression before this
court, the constitutionality of section 5B4B3 of the Unified Code of
Corrections (730 ILCS 5/5B4B3 (West 2002)). The latter argument
challenges the statute both on its face and as applied in this case
under the search and seizure provisions of our state and federal
constitutions. We affirm the appellate court=s judgment affirming the
trial court=s denial of the motion, albeit on a different basis, and
upholding the constitutionality of the statute.
I. BACKGROUND
 Sometime prior to 4:45 a.m. on December 29, 2001, Gerhardt
Roth called the Franklin Park police to report he had seen a license
plate stolen from one of his company=s vehicles on a white van with a
ACompUSA@ logo on its side. He tracked the van after it left the
company=s property and noticed a white car also following the van.
Ultimately, both vehicles pulled into a gas station. Pursuant to Roth=s
call, Officer Henninger was dispatched to the gas station and
observed a white car and a white CompUSA van in the parking lot.
At the gas station, Roth told the officer that he had seen the two
vehicles on his company=s property and that defendant and two other
men had been in or around the van. One of the other two men was
still in the car. Defendant and the other man came out of the
convenience store adjoining the gas station and walked up to the
officer. While they were talking, Henninger obtained the names of
the three men and ran those names through the police computer. He
received a radio message that the Bensenville police department was
looking for a similar van and a white Ford Thunderbird in connection
with a possible theft from Emery Worldwide. Henninger requested
officers from Bensenville be dispatched to the scene. In addition, the
officer checked the van=s vehicle identification number and
discovered it, too, had been reported stolen.
Henninger also received information that one of the men with
defendant was wanted on an outstanding warrant, and he arrested that
man. Defendant was later arrested without a warrant. Defendant
subsequently asked the Bensenville police to remove his wallet from
the van and admitted he had been in the vicinity of Emery Worldwide
earlier in the evening.
Defendant was charged with burglary (720 ILCS 5/19B1(a) (West
2000)), theft (720 ILCS 5/16B1(a)(1)(A) (West 2000)), and
possession of burglary tools (720 ILCS 5/19B2(a) (West 2000)). He
filed a motion in the circuit court of Du Page County seeking to
quash his arrest for lack of probable cause and to suppress his
postarrest statements. Following a hearing, the circuit court denied
defendant=s motion. The State subsequently dropped the charge of
possession of burglary tools.
Defendant entered into a stipulation that included both his
postarrest statements to the Bensenville police and the discovery of
his wallet in the white van by the Franklin Park police. Following a

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stipulated bench trial, defendant was convicted of burglary and theft.
He was sentenced to concurrent prison terms of 62 years and ordered
to submit to the State a blood sample for deoxyribonucleic acid
(DNA) analysis pursuant to section 5B4B3 of the Unified Code of
Corrections (Code) (730 ILCS 5/5B4B3 (West 2002)). The trial court
denied defendant=s motion for a new trial alleging the court
improperly declined to quash his arrest and suppress his statements.
On appeal, defendant first argued the trial court should have
granted his motion to quash and suppress. While the appellate court
agreed no probable cause existed for defendant=s arrest, it deemed the
erroneous probable cause finding harmless because it believed
sufficient evidence of guilt was adduced at trial without the
admission of the improper evidence. 349 Ill. App. 3d 845, 851-52.
The appellate court also concluded defendant could not attack the
admission of his inculpatory statement placing his wallet inside the
stolen van because he had stipulated the wallet found in the van was
his. 349 Ill. App. 3d at 852.
Defendant also challenged, both on its face and as applied, the
constitutionality of section 5B4B3, mandating the submission of a
DNA sample for analysis and entry into a computer database.
Applying a balancing test, the appellate court found the statutory
provision constitutional both because the blood test required minimal
physical intrusion and because the state=s interest in collecting and
storing DNA to deter and prosecute recidivists outweighed
defendant=s diminished privacy interest as a convicted felon. 349 Ill.
App. 3d at 855-56. Defendant=s petition for rehearing was denied.
This court allowed defendant=s petition for leave to appeal. 177 Ill. 2d
R. 315(a).

II. ANALYSIS
Defendant raises two distinct issues on appeal. First, he argues the
appellate court correctly recognized the lack of probable cause for his
arrest but erroneously believed the admission of his subsequent
police statements was harmless error. 349 Ill. App. 3d at 851. Next,
he contends the mandatory submission of blood for DNA analysis
pursuant to section 5B4B3 of the Code (730 ILCS 5/5B4B3 (West
2002)) is unconstitutional because it violates, both on its face and as
applied, his protections against unreasonable searches and seizures

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under the Illinois and United States constitutions, an issue not
previously considered by this court. We address these issues in turn.

A. Probable Cause
Initially, defendant asserts the trial court should have granted his
motion to quash arrest and suppress evidence based on a lack of
probable cause. He maintains probable cause was absent because the
police had no particularized suspicion that he was involved in any
criminal activity and instead relied on his proximity to another man
named in an unrelated warrant. See United States v. Di Re, 332 U.S.
581, 592-94, 92 L. Ed. 210, 219-20, 68 S. Ct. 222, 227-28 (1948).
See also Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245,
100 S. Ct. 338, 342 (1979). Defendant claims the only evidence
linking him to the charged crimes was Roth=s eyewitness statement
identifying him as one of three men who had been Ain or around@ the
stolen van in the gas station parking lot.
Reviewing the denial of defendant=s motion alleging a lack of
probable cause de novo (People v. Sorenson, 196 Ill. 2d 425, 431
(2001)), we agree that mere proximity to another individual is
insufficient to support a finding of probable cause (see Di Re, 332
U.S. at 592-94, 92 L. Ed. at 219-20, 68 S. Ct. at 227-28). We
disagree, however, with defendant=s characterization of the relevant
evidence.
Officer Henninger was the only witness at the hearing on
defendant=s motion. He arrived at the gas station in response to a call
from Roth reporting a white van with a ACompUSA@ logo on its side
bearing license plates stolen from Roth=s company. When the officer
arrived, he saw a van matching that description parked on the west
side of the lot. He also noted a white car located approximately 22
car lengths away from the van, parked directly behind the
convenience store adjoining the gas station. It was an early winter
morning, the lot was well lit, and Henninger did not recall any other
customers present.
Roth approached Officer Henninger and pointed out the van with
the stolen plates, stating he had noticed the unauthorized van near his
company prior to recognizing the stolen license plate. Roth also
indicated he had seen the white car follow the van and that the
vehicles had pulled into the gas station together.

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 Officer Henninger then ran the license plate number on the van
and verified the plate was stolen. While the plate was being run,
defendant and another man came out of the convenience store
together and approached Henninger. Roth identified the men as two
of the three he had seen in or around the van. The officer talked to the
men as he continued to investigate Roth=s report. Henninger then
received a message that the Bensenville Police were looking for two
vehicles possibly stolen from Emery Worldwide: a van matching the
description of the one in the lot and a white sedan. He responded by
requesting the dispatch of Bensenville officers to the scene. At some
point, the officer also ran a check on the van=s vehicle identification
number and discovered it, too, had been reported stolen. Henninger
believed that defendant was arrested without a warrant between 4:30
a.m. and 5 a.m.
Contrary to defendant=s claim, there was far more evidence
linking him to the stolen license plates than Roth=s bare statement that
he had observed defendant in or around a van bearing those plates.
Before noticing the stolen plates, Roth had observed the unauthorized
van on his company property during the early morning hours. After
recognizing the plates on the van as belonging to his company, he
reported the theft to police and personally trailed the van and the
white car that was following it to the gas station, where the two
vehicles parked near each other. Although Officer Henninger could
not recall if Roth had indicated whether defendant had exited the van
or the car, Roth had identified defendant as one of the men who had
been in or around the van bearing the stolen plate and that, itself, was
also subsequently determined to be stolen.
As the State notes, logic dictates that at least two persons had to
have been involved in the theft at Roth=s company to have been able
to drive both the van and the white car that followed it. There was no
evidence the van or the car stopped anywhere to drop off any
passengers or to pick up additional ones between leaving Roth=s
company property and parking at the gas station. Thus, logically, the
same individuals were in the van and the car when the vehicles left
Roth=s company property and when they parked at the gas station.
Moreover, Officer Henninger did not recall seeing any other
customers at the gas station.

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 One man was observed in the white car parked near the van at the
gas station. Defendant was one of two other men who together came
out of the convenience store and approached Officer Henninger. Roth
identified defendant as one of the men he had previously seen in or
around the van. Based on these facts, it was reasonable to infer that
the three men were connected with one another and had been
personally observed by the eyewitness and identified as the same men
who had been in or around the van bearing the stolen license plate.
Based on this connection, the brief time that had passed since the
theft of the license plate, and the implausibility that anyone had left
or entered the vehicles between their departure from Roth=s property
and their arrival at the gas station, it was reasonable to conclude
defendant was involved in that crime. This particularized suspicion
distinguishes this case from Ybarra and Di Re.
In Ybarra, the police had a warrant limiting their search to a bar
and a bartender. Once at the bar, they expanded the scope of that
search to include everyone present, including the defendant, who was
found to have narcotics in his pocket. The Supreme Court held the
drug evidence should have been suppressed because the defendant=s
mere proximity to others who were Aindependently suspected of
criminal activity does not, without more, give rise to probable cause
to search that person.@ Ybarra, 444 U.S. at 91, 62 L. Ed. 2d at 245,
100 S. Ct. at 342.
In this case, more than mere physical proximity connected
defendant to the theft of the license plates, and the police did not
expand the scope of a previously authorized search. Logic and a
credible eyewitness connected the three men present at the gas station
to the earlier theft. In Ybarra, the only known connection between the
defendant and the bar being searched was the defendant=s presence in
the bar at that particular time. Here, defendant was not simply a
patron who happened to be at the gas station when it was searched
pursuant to a warrant. While particularized suspicion was lacking in
Ybarra, the same cannot be said in this case.
Similarly, the defendant in Di Re was arrested because he was in
the front seat of a car next to the driver, who an informant sitting in
the backseat said had given him two gasoline ration coupons later
determined to be counterfeit. While in custody, the defendant was
found to have a large number of counterfeit gasoline and fuel oil

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ration coupons in his possession. Di Re, 332 U.S. at 583, 92 L. Ed. at
214, 68 S. Ct. at 223. At the time of the defendant=s arrest, however,
the police had no evidence that he had played any role in the driver=s
transaction with the informant. Indeed, the informant specifically
named only the driver as a participant when the police arrived on the
scene. Di Re, 332 U.S. at 592, 92 L. Ed. at 219, 68 S. Ct. at 227. The
Court stated that the defendant=s mere presence in the car was not
sufficient to justify his arrest and subsequent search. Di Re, 332 U.S.
at 592-93, 92 L. Ed. at 219, 68 S. Ct. at 227-28. As in Ybarra, there
was no particularized suspicion that the defendant had been involved
in any crime. For that reason, Di Re is also distinguishable from the
instant case.
The special concurrence relies on People v. Lee, 214 Ill. 2d 476,
484 (2005), not cited in the parties= briefs. In Lee, no evidence of any
actual criminal activity existed at the time of the defendant=s arrest.
The police simply responded to a citizen=s complaint alleging that
three men were selling drugs on a corner located in an area
designated by the city to be A >high-drug= @ and A >high-gang.= @ Lee,
214 Ill. 2d at 478. The same citizen had previously made other
complaints, A[m]ost of them *** well-founded,@ according to the
police.
After parking two blocks away from the named intersection, the
police observed the defendant and two other men for three to five
minutes. During this time, a van drove up and parked, and the officers
saw the three men speak to the driver. Notably, no illegal acts were
observed, and the officers noticed nothing indicative of drug-related
activities, such as an exchange of money or packages, as required by
the statute. A preliminary pat-down search of the men failed to
provide any evidence of contraband. Despite the complete absence of
any evidence that the men were connected to any drug-related
activities, defendant and his companions were arrested. Lee, 214 Ill.
2d at 478-79. Only after being arrested was the defendant found to
have cocaine in his pants pocket. Lee, 214 Ill. 2d at 481.
Unlike Lee, defendant in this case was undeniably linked to a
crime that was readily observable by the officer on the scene. The
presence of the stolen license plate on the van established that a theft
had actually been committed. While at the gas station, Officer
Henninger verified that the plate was stolen, confirming the

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commission of a crime and corroborating Roth=s statements. He also
knew from speaking directly with the complainant at the scene that
defendant and the two other men had been in or around the van
bearing the stolen plate. In addition, the officer knew Roth had
personally followed the van and the car from the scene of the license-
plate theft to the gas station and had not reported anyone entering or
leaving the vehicles. The van had also been reported stolen. Officer
Henninger continued to investigate the crime when defendant and his
companion came out of the convenience store.
This court has stated that probable cause exists if the facts and
surrounding circumstances are sufficient to justify a reasonable belief
by the arresting officer that the defendant is or has been involved in a
crime. People v. Jones, 215 Ill. 2d 261, 277 (2005). AThe standard for
determining whether probable cause is present is probability of
criminal activity, rather than proof beyond a reasonable doubt.
[Citations.]@ Lee, 214 Ill. 2d at 485. If there are questions both of
whether a crime has even been committed as well as of whether a
particular individual committed the crime, additional evidence is
required to show probable cause. Lee, 214 Ill. 2d at 485.
In Lee, even the existence of a crime was in question, and the
defendant=s actions revealed no hint of illegality. With the enhanced
evidentiary burden imposed on the State in the absence of a definitive
crime, probable cause did not exist in Lee. Lee, 214 Ill. 2d at 485. In
contrast, here a crime had undeniably been committed, making the
enhanced burden placed on the State in Lee inapplicable. Moreover,
here an eyewitness had identified the van bearing the stolen license
plate and the white car accompanying it as the same two vehicles he
had followed, uninterrupted, from the scene of the theft to the gas
station, where the police observed them. The same eyewitness also
personally identified defendant as one of three men he had observed
in or around the van and the white car. Based on the limited
testimony adduced at the suppression hearing, defendant=s presence at
the time the license plate was stolen may be logically inferred, as
noted previously. In light of the totality of the facts and
circumstances, as viewed by an objectively reasonable officer, we
believe probable cause existed at the time of defendant=s arrest. See
Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed. 2d 769, 775, 124
S. Ct. 795, 800 (2003) (stating the relevant standard). Having made
this determination, we need not address defendant=s additional claim

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that the appellate court erred by finding the admission of his
postarrest statements during the stipulated bench trial to be harmless
error. Defendant=s arrest was proper; thus under the facts of this case,
the admission of his subsequent custodial statements was also proper.
Unlike the appellate court, we need not consider whether the
admission of those statements was harmless error because we hold
the trial court properly admitted them. The trial court properly denied
defendant=s motion to quash arrest and suppress evidence.

B. DNA Sampling
Defendant next challenges the constitutionality of the mandate in
section 5B4B3 of the Unified Code of Corrections (730 ILCS 5/5B4B3
(West 2002)) that all felons submit a blood sample for DNA profiling
and entry into a computer database.
He bases his challenge on his fourth amendment right under the
federal constitution to be free from unreasonable searches (U.S.
Const., amends. IV, XIV), as well as its state counterpart (Ill. Const.
1970, art. I, '6). We note that defendant does not offer any arguments
specifically addressing the unique aspects of our state constitutional
privacy provisions, and therefore we do not consider those elements
in our analysis.
Our review begins with the presumption section 5B4B3 is
constitutional, and we are constrained to construe that section as
constitutional whenever reasonably possible. People v. Wilson, 214
Ill. 2d 394, 398-99 (2005). As the challenger in this case, defendant
bears the heavy burden of demonstrating a clear constitutional
violation. Wilson, 214 Ill. 2d at 399. Since the constitutionality of a
statute presents a question of law, we review this issue de novo. See
Wilson, 214 Ill. 2d at 399.
Defendant contends that section 5B4B3 is unconstitutional on its
face because it requires no showing of Aspecial need@ or other
justification for a suspicionless search. He also asserts the section is
unconstitutional as applied to him as a felon convicted of a nonsexual
offense due to the purportedly low chance that the DNA information
stored in the database will be useful in solving or prosecuting future
crimes.
To mount a successful facial challenge, defendant must fulfill the
difficult task of establishing the statute=s invalidity under any set of

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facts. People v. Greco, 204 Ill. 2d 400, 407 (2003). In contrast, an Aas
applied@ challenge requires defendant to show the statute violates the
constitution as it applies to him. See Greco, 204 Ill. 2d at 407. We
first consider defendant=s Aas applied@ challenge to the validity of
section 5B4B3.
Compelled blood extractions undeniably constitute searches
within the meaning of the fourth amendment of the federal
constitution (Skinner v. Railway Labor Executives Ass=n, 489 U.S.
602, 616, 103 L. Ed. 2d 639, 659, 109 S. Ct. 1402, 1412-13 (1989))
and, as such, generally require the issuance of warrants due to the
inherent interest individuals possess in their privacy and bodily
integrity (Schmerber v. California, 384 U.S. 757, 770, 16 L. Ed. 2d
908, 919, 86 S. Ct. 1826, 1835 (1966)). Similar constitutional
protection is provided by the search and seizure provision of the
Illinois Constitution. People v. Watson, 214 Ill. 2d 271, 280 (2005),
citing In re May 1991 Will County Grand Jury, 152 Ill. 2d 381
(1992). In evaluating the validity under the fourth amendment of this
warrantless search, the critical issue is whether the intrusion was
Areasonable,@ as that term has been judicially construed. See Watson,
214 Ill. 2d at 280. Thus, we must determine whether the warrantless
sampling and laboratory analysis of blood taken from all convicted
felons in this state as mandated by section 5B4B3 constitutes a
reasonable search.
To answer this question, the parties present two alternative
analytical possibilities: the special needs test and the pure balancing
test. Under the special needs test, nonconsensual warrantless searches
are permitted without particularized suspicion only if a Aspecial need@
exists apart from general law enforcement needs. Ferguson v. City of
Charleston, 532 U.S. 67, 79, 149 L. Ed. 2d 205, 217, 121 S. Ct. 1281,
1289 (2001). If a special need is found, then the court balances the
parties= disparate interests to determine whether the intrusion is
justified. If a special need is not found, the statute is deemed
constitutionally infirm. Ferguson, 532 U.S. at 78, 149 L. Ed. 2d at
216, 121 S. Ct. at 1288; see also People v. Lampitok, 207 Ill. 2d 231,
243-53 (2003) (applying the special needs test where, during a
warrantless search of the probationer=s motel room, police found
items the probationer was barred from possessing under the terms of
her probation order).

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 Defendant advocates the use of this approach here, asserting that
the United States Supreme Court has applied it in the context of other
warrantless searches. See Ferguson, 532 U.S. 67, 149 L. Ed. 2d 205,
121 S. Ct. 1281; City of Indianapolis v. Edmond, 531 U.S. 32, 42,
148 L. Ed. 2d 333, 344, 123 S. Ct. 447, 454 (2000). Consequently, he
claims the appellate court erred by forgoing the special needs test in
favor of the less rigorous pure balancing test. In that test, courts
perform only the balancing portion of the special needs test without
requiring the showing of a special need apart from general law
enforcement.
This balancing-only test has been relied on by many other
jurisdictions confronted with fourth amendment challenges to DNA
statutes similar to the one at issue here. Velasquez v. Woods, 329 F.3d
420 (5th Cir. 2003); Schlicher v. (NFN) Peters, I&I, 103 F.3d 940
(10th Cir. 1996); Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995); Jones
v. Murray, 962 F.2d 302 (4th Cir. 1992); D.B. v. State, 861 So. 2d 4
(Ala. Crim. App. 2003); In re Maricopa County Juvenile Action Nos.
JV-512600 & JV-512797, 187 Ariz. 419, 930 P.2d 496 (App. 1996);
L.S. v. State, 805 So. 2d 1004 (Fla. App. 2001); Patterson v. State,
742 N.E.2d 4 (Ind. App. 2000); State v. Maass, 275 Kan. 328, 64
P.3d 382 (2003); Landry v. Attorney General, 429 Mass. 336, 709
N.E.2d 1085 (1999); Cooper v. Gammon, 943 S.W.2d 699 (Mo. App.
1997); Gaines v. State, 116 Nev. 359, 998 P.2d 166 (2000); State ex
rel. Juvenile Department v. Orozco, 129 Or. App. 148, 878 P.2d 432
(1994); Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769
(2000); Doles v. State, 994 P.2d 315 (Wyo. 1999).
We note that the United States Supreme Court has not expressly
addressed the propriety of either test in evaluating the
constitutionality of DNA collection and analysis statutes. We need
not venture a guess here as to that court=s ultimate decision on the
issue because the outcome in this case is the same under either test.
The primary purpose of section 5B4B3 is the creation of a criminal
DNA database. Defendant asserts that this is not a special need apart
from general law enforcement because the information in the
database ultimately may be used to further future criminal
investigations. We believe defendant=s expansive reading of the case
law concerning the boundary between a special need and general law
enforcement is flawed. Under defendant=s interpretation, any search

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that could potentially advance a criminal investigation either
immediately or at some unknown point in the future would constitute
general law enforcement and, thus, would be unconstitutional in the
absence of a warrant. The language and circumstances in Edmond
and Ferguson do not support such a broad approach.
In Edmond, the Court emphasized the importance of examining
the primary purpose of the search. In that case, Indiana=s primary
purpose in establishing roadside checkpoints was to uncover ordinary
criminal conduct involving illegal narcotics that was occurring at the
time of the checkpoint stop. Edmond, 531 U.S. at 40-41, 148 L. Ed.
2d at 343, 123 S. Ct. at 453-54. In Ferguson, the Court examined a
state hospital program that tested pregnant women=s blood for drug
usage without their consent. The Court concluded the program=s
primary purpose was to obtain evidence of tested patients= criminal
conduct to force them into treatment by threat of arrest and
prosecution and noted the extensive police involvement throughout
the development of the program. That primary purpose did not fall
within the category of a special need. Ferguson, 532 U.S. at 84, 149
L. Ed. 2d at 220, 121 S. Ct. at 1291-92.
The purpose of creating a DNA profile database is distinct from
the purposes found to exist in Edmond and Ferguson. In those cases,
the search conducted uncovered only evidence of the tested
individual=s past and present wrongdoings, without any benefit to
future criminal investigations. Thus, evidence from a dragnet-style
search was used as a springboard to uncover otherwise unknown
criminal activity.
Here, the statute figuratively puts the cart before the horse. The
primary goal is not to uncover previously unknown crimes but to aid
in the resolution of crimes after they have been committed. The
database established by section 5B4B3 has little use unless crimes
leaving behind a DNA trail are committed. If DNA from those crimes
can be collected, the database may be useful in delineating the
relevant pool of suspects by either identifying a particular individual
or, equally important, excluding a potential suspect from
consideration. This purpose is in stark contrast to those found to be
invalid in Edmond and Ferguson.
While the blanket searches in Edmond and Ferguson did not
serve a special need outside that of general law enforcement, the

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statutory searches here are Anot designed to discover and produce
evidence of a specific individual=s criminal wrongdoings. [Citations.]
Rather, they essentially prove nothing. [Citations.] That is, a DNA
sample is evidence only of an individual=s genetic code, which does
not, on its own, show the commission of a crime. [Citations.] >It is
this distinction that removes the collection and cataloguing of DNA
information from the normal need for law enforcement.= [Citations.]@
People v. Hall, 352 Ill. App. 3d 537, 549 (2004). See also United
States v. Kimler, 335 F.3d 1132, 1146 (10th Cir. 2003) (noting that
building a genetic database is beyond general law enforcement
needs). While under a broad definition, the collection, analysis, and
storage of DNA is ultimately related to solving crime, it remains only
potentially useful for that purpose until a crime presenting an
opportunity to compare DNA samples is committed. See Nicholas v.
Goord, No. 01 CIV 7891 (S.D.N.Y. February 6, 2003) (explaining
the primary purpose of the New York DNA indexing statute was not
an ordinary purpose of law enforcement by stating: AObviously,
obtaining a DNA sample for a databank is within the scope of law
enforcement, broadly defined, and certainly has a relationship to the
solving of crimes. But the primary purpose of collecting samples for
the databank is not for the State to determine that a particular
individual has engaged in some specific wrongdoing. Unlike a blood
or urine sample that may contain traces of drugs, the samples of
blood for the DNA databank prove nothing by themselves regarding
whether the donor has committed a crime. *** They merely offer the
potential that some very small percentage may be relevant to solving
a crime that in all likelihood has not even been committed at the time
of the search@).
Moreover, our appellate court as well as courts in other
jurisdictions have variously found that the main purpose of DNA
sampling is to absolve innocents, identify the guilty, deter recidivism
by identifying those at a high risk of reoffending, or bring closure to
victims. People v. Butler, 354 Ill. App. 3d 57, 66-67 (2004) (finding
the database may A >absolve the innocent= @ and give crime victims
closure by taking the perpetrators off the street), quoting Kincade,
379 F.3d at 839; United States v. Kincade, 379 F.3d 813, 838-39 (9th
Cir. 2004) (finding that deterring recidivists and obtaining closure for
victims Aundeniably compelling@ and Amonumental@ interests); In re
Leopoldo L., 209 Ariz. 249, 254-55, 99 P.3d 578, 583-84 (1st Div.

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2004) (noting the purposes of exonerating the innocent, identifying
the guilty, and deterring recidivists); People v. Shreck, 107 P.3d
1048, 1053 (Colo. App. 2004) (listing Aexonerating the innocent,
solving past as well as future crimes, and deterring recidivism@); State
v. Steele, 155 Ohio App. 3d 659, 671, 802 N.E.2d 1127, 1136 (2003)
(acknowledging the purposes of creating a more accurate criminal
justice system allowing for the exoneration of the innocent and the
identification of the guilty in future crimes). We agree that all of
these goals are distinct from traditional law enforcement practices
designed to gather evidence in a particular case to solve a specific
crime that has already been committed. Taken together, these
purposes demonstrate a special need beyond ordinary law
enforcement.
Finally, defendant contends that even if the special needs prong is
met, the appellate court misapplied the balancing test, finding that his
privacy interests were outweighed by the State=s interest in Adeterring
and prosecuting recidivist criminal acts@ (349 Ill. App. 3d at 856).
The strength of the State=s interest is self-evident. Promoting an
effective and accurate criminal justice system and increasing public
safety through either deterrence or removal of criminal offenders
from the streets is a fundamental concern of the State and law
enforcement.
Defendant argues, however, that on the other side of the
balancing equation we must consider his privacy interest in his
personal genetic information despite his status as a convicted felon.
While we agree that a felony conviction does not obliterate all
preexisting privacy rights, we recognize that those rights are
significantly diminished. See United States v. Knights, 534 U.S. 112,
119-20, 151 L. Ed. 2d 497, 505, 122 S. Ct. 587, 591-92 (2001);
Sandin v. Conner, 515 U.S. 472, 485, 132 L. Ed. 2d 418, 431, 115 S.
Ct. 2293, 2301 (1995) (quoting earlier case law stating that
A > A[l]awful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system@ = @); Bell v. Wolfish, 441
U.S. 520, 558, 60 L. Ed. 2d 447, 481, 99 S. Ct. 1861, 1884 (1979);
Lampitok, 207 Ill. 2d at 250-51. Also, the intrusion created by taking
the blood sample authorized by the statute has been found to be
insignificant. In Skinner v. Railway Labor Executives= Ass=n, 489 U.S.
602, 625, 103 L. Ed. 2d 639, 665, 109 S. Ct. 1402, 1417 (1989), the

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Court found that the safety and virtual absence of discomfort
involved in modern blood tests makes them a minimal intrusion on
individual=s privacy and bodily integrity. In considering the
constitutionality of other DNA sampling statutes, many other courts
have also relied on this finding. See, e.g., Roe v. Marcotte, 193 F.3d
72, 79 (2d Cir. 1999); Jones v. Murray, 962 F.2d 302, 307 (4th Cir.
1992); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996); In re
D.L.C., 124 S.W.3d 354, 373 (Tex. Ct. App. 2003).
As for defendant=s assertion that his privacy interests remain high
even in light of his felony conviction, we find the decision in United
States v. Knights, 534 U.S. 112, 114-15, 151 L. Ed. 2d 497, 502-03,
122 S. Ct. 587, 589 (2001), instructive. In that case, a condition of the
defendant=s probation was his submission to warrantless searches of
his home. During one of these searches, the police found evidence
that he was involved in an arson conspiracy. The defendant argued
the search violated his fourth amendment rights, and the Supreme
Court noted that probationers= privacy rights are greatly reduced.
Knights, 534 U.S. at 119-20, 151 L. Ed. 2d at 505, 122 S. Ct. at 591-
92. Similarly, the reasonable expectation of privacy of the defendant
in this case is also substantially reduced due to his status as a
convicted felon. See also Griffin v. Wisconsin, 483 U.S. 868, 875, 97
L. Ed. 2d 709, 718, 107 S. Ct. 3164, 3169 (1987) (recognizing that
the general public possesses greater liberty rights than probationers).
Moreover, the statute limits access to the information stored in the
database to Apeace officers@ (730 ILCS 5/5B4B3(f) (West 2002)),
helping to ensure the information is used only for relevant, official
purposes.
Defendant next claims the link between the statute=s purpose in
deterring and solving recidivist crime and its means as enacted in
section 5B4B3 is weak because defendant is a nonsexual offender and
thus unlikely to leave behind DNA evidence. In a related argument,
he asserts that the State=s reliance on some of its out-of-state cases is
inapposite because the statutes in those cases applied only to specific
categories of felons.
While DNA evidence is often left behind during the commission
of sex offenses, myriad examples involving other felonies can also be
imagined. For instance, hair or skin cells from an intruder could be
found in a victim=s home or on clothing. Alternatively, a felon could

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suffer an injury during the commission of a crime, leaving behind
DNA evidence in blood or tissue. As techniques in DNA retrieval and
analysis develop, the likely scenarios will undoubtedly multiply.
Thus, defendant=s status as a nonsexual offender does not so attenuate
the vital linkage between his reduced privacy interests and the State=s
strong interest in deterring and solving crime, as well as providing
closure for crime victims, as to tip the scales of the balancing test in
his favor. We hold that the State=s interest in effective crime
investigations and prevention, as advanced by section 5B4B3,
outweighs defendant=s privacy interest as a convicted felon.
Defendant=s constitutional challenge to section 5B4B3 as it applies to
him is rejected.
Having held that section 5B4B3 is constitutional as applied to
defendant, his fourth amendment facial challenge to that section
necessarily fails because under at least one set of facts the statute is
constitutionally valid and our overbreadth doctrine has not been used
outside the context of first amendment challenges. See People v.
Greco, 204 Ill. 2d 400, 407 (2003).

III. CONCLUSION
For the reasons stated, we hold that there was sufficient probable
cause to deny defendant=s motion to quash arrest and suppress the
evidence, rejecting the appellate court=s contrary analysis. We also
hold that the DNA sampling and database mandated by section 5B4B3
is constitutional both as applied in defendant=s case and on its face.
Accordingly, while we reject in part the appellate court=s rationale,
we affirm its ultimate judgment.

Appellate court judgment affirmed.

JUSTICE McMORROW, specially concurring:
In deciding defendant=s claim that his postarrest statements should
have been suppressed, the majority concludes that the police had
probable cause to arrest defendant and it was therefore proper for the
trial court to admit defendant=s custodial statements. This conclusion
differs from that of the appellate court below, which held that the

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police lacked probable cause to arrest defendant but the admission of
defendant=s postarrest statements was harmless error. 349 Ill. App. 3d
845, 851. I disagree with the majority=s conclusion. In my view, the
appellate court=s disposition regarding this issue was correct.
In order to effect a valid, warrantless arrest, a police officer must
have probable cause to arrest. People v. Sims, 192 Ill. 2d 592, 614
(2000). AProbable cause exists when the totality of the facts and
circumstances known to the officers is such that a reasonably prudent
person would believe that the suspect is committing or has committed
a crime.@ People v. Montgomery, 112 Ill. 2d 517, 525 (1986), citing
Dunaway v. New York, 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 833
n.9, 99 S. Ct. 2248, 2254 n.9 (1979); Beck v. Ohio, 379 U.S. 89, 91,
13 L. Ed. 2d 142, 145, 85 S. Ct. 223, 225 (1964); People v. Tisler,
103 Ill. 2d 226, 237 (1984). AWhere the standard is probable cause, a
search or seizure of a person must be supported by probable cause
particularized with respect to that person.@ Ybarra v. Illinois, 444
U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 342 (1979).
Moreover, the determination as to whether there was probable cause
to arrest is based on facts known to the police at the time the arrest
was made. People v. Lee, 214 Ill. 2d 476, 484 (2005), citing People v.
Chapman, 194 Ill. 2d 186, 217 (2000). AA warrantless arrest cannot
be justified by what is found during a subsequent search incident to
the arrest.@ Lee, 214 Ill. 2d at 484. AMere suspicion is inadequate to
establish probable cause to arrest, but the evidence relied upon by the
arresting officers does not have to be sufficient to prove guilt beyond
a reasonable doubt.@ Sims, 192 Ill. 2d at 614-15.
In the case at bar, the events leading up to defendant=s arrest were
as follows. Officer Henninger of the Franklin Park police department,
the sole witness at the hearing on defendant=s motion to suppress his
custodial statements, testified that he received a call from dispatch
sometime prior to 4:45 a.m. on December 29, 2001. The call
indicated that Gerhardt Roth, who was at an Amoco gas station,
reported that there was a van at the gas station with license plates that
had been stolen from one of his company=s vans. When Officer
Henninger arrived at the gas station, he noticed a white van with a
CompUSA logo on the side, and a white passenger vehicle parked
near the van. One of defendant=s codefendants, Lewis Taylor, was in
the passenger vehicle, and defendant and the other codefendant,
Michael Bennett, were in the gas station=s minimart. Officer

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Henninger was approached by Roth, whose company was T&T
Express, a shipping concern in the area. Roth told Officer Henninger
that he had seen the CompUSA van and the white vehicle at his
company earlier that morning, and he noticed that the license plate on
the van had been stolen from one of his company=s vehicles. When
the CompUSA van and the white vehicle left T&T Express, Roth said
he followed them. Both the van and the white vehicle pulled into the
Amoco gas station, as did Roth before he called the police. At the gas
station, Roth told Officer Henninger that he saw three individuals
(identified in court by Officer Henninger as defendant and his two
codefendants) either Ain or around@ the van. Officer Henninger
testified that he could not recall whether Roth knew exactly which of
the individuals had been inside the van.
A computer check on the van=s license plates indicated that they
were stolen. Officer Henninger also ran a computer check on the
van=s vehicle identification number and discovered that the van was
stolen, as well. According to the testimony at the hearing, the two
individuals who were in the minimart (defendant and Bennett)
emerged at some point and approached Officer Henninger. While he
was speaking to the two men, Officer Henninger received a radio
message that police in Bensenville, about two miles away, were
looking for a white CompUSA van and a white vehicle that may have
been involved in a theft from Emery Worldwide. Officer Henninger
also did a computer check on the three codefendants and discovered
that Taylor was wanted on an outstanding warrant for driving with a
suspended license. Officer Henninger arrested Taylor. According to
Officer Henninger=s testimony, he also arrested defendant.
At the time of defendant=s arrest, the police were aware that: (1)
the license plates on the white CompUSA van were stolen, (2) the
van itself was stolen, and (3) police in Bensenville were looking for a
white CompUSA van and a white vehicle (possibly the vehicle that
was parked near the CompUSA van at the gas station) in connection
with a possible theft from Emery Worldwide. In addition, police were
told by Roth at the gas station that he saw defendant and two other
individuals Ain or around@ the CompUSA van. Police also knew, prior
to defendant=s arrest, that Taylor, one of the codefendants, was
wanted on an outstanding warrant for an unrelated offense.

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 While the facts and circumstances known to the police at the time
of defendant=s arrest were such that a reasonably prudent person
would believe that a crime or crimes had been or were being
committed, there was nothing to support a reasonable belief that
defendant committed these or any other crimes. The only evidence
linking defendant to a crime was Roth=s statement that he had seen
defendant and two other individuals Ain or around@ the CompUSA
van. As the appellate court below asserted:
AThis sole fact did not warrant the defendant=s arrest. The
defendant could have been in or around the van for any
number of lawful reasons.@ 349 Ill. App. 3d at 851.
The appellate court explained:
AThe fact that the defendant was in or around the van
warranted reasonable suspicion, a standard less than probable
cause, which would have entitled the police to question the
defendant and investigate the situation further. Instead of
doing so, however, the police simply arrested the defendant.@
349 Ill. App. 3d at 851.
In the appellate court=s view, the police lacked probable cause to
arrest defendant. Accordingly, Athe trial court should have suppressed
any harmful statements made by the defendant subsequent to his
arrest.@ 349 Ill. App. 3d at 851. I agree with the appellate court=s
reasoning, which finds support in a recent decision of this court.
In People v. Lee, 214 Ill. 2d 476 (2005), the defendant was one of
three men arrested for violating Joliet=s drug-loitering ordinance.
Police officers were dispatched to an intersection in an area that the
city had designated Ahigh-drug@ and Ahigh-gang.@ The officers were
sent to investigate a citizen complaint of three men selling drugs on
the corner. The officers arrived at the intersection and saw the
defendant and two other men standing on the corner. One of the
officers knew that the defendant had previously been arrested for
drug possession, and that one of the other two men was a member of
a street gang. Lee, 214 Ill. 2d at 478-79. The officers parked about
two blocks away and observed the men for about three to five
minutes. The officers saw a van pull up to the curb and park, saw the
three men speak to the driver, and saw the van drive away. The
officers did not see an exchange of money or drugs. However, they
believed that a drug transaction had taken place or was about to take

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place. When the van drove away, the officers approached the three
men. A protective pat-down search disclosed no weapons or
contraband. Nevertheless, the officers arrested defendant and the
other two men for violating Joliet=s drug-loitering ordinance. A
search incident to the arrest revealed cocaine in the defendant=s
pocket. The defendant was charged with and convicted of drug
possession offenses. Lee, 214 Ill. 2d at 478-81.
This court held that the officers lacked probable cause to arrest
the defendant for violating the drug-loitering ordinance.
Consequently, this court reversed the defendant=s drug-possession
convictions. The defendant stood on a corner with two other men. He
did not make any hand gestures or place anything in his mouth or
pockets. The officers observed a van pull to the curb where the
defendant and the other two men were standing, but none of the three
men had summoned the van. AFor all the officers knew, the driver of
the van might have stopped and asked for directions, or to greet one
or more acquaintances.@ Lee, 214 Ill. 2d at 486. The van then drove
away. The officers did not see a drug transaction. This court
concluded: A[T]he fact, by itself, that the officers found defendant in a
certain area, without any overt act by defendant, does not establish
probable cause for a warrantless arrest.@ Lee, 214 Ill. 2d at 486. In
this court=s view, the facts available to the officers supported a
reasonable suspicion that warranted further investigation. However,
the officers did not conduct any further investigation to raise their
reasonable suspicion to the level of probable cause for a warrantless
arrest. Instead, the police arrested the defendant, and this court
reversed his convictions, concluding that the arrest was improper.
Lee, 214 Ill. 2d at 487-89.
In the case at bar, the police knew that a crime had been
committed. However, the question was whether defendant, in
particular, had committed or was committing a crime. The police had
enough information to justify a reasonable suspicion, but did not have
enough information to support probable cause to arrest. As in Lee, the
police could have questioned defendant and investigated the situation
further. However, the police instead arrested defendant prematurely,
without probable cause.
My colleagues in the majority assert that Athere was far more
evidence@ linking defendant to the stolen license plates than Roth=s

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isolated statement that he had observed defendant in or around a van
bearing those plates. Slip op. at 5. However, the evidence recounted
by the majority is essentially the same as the evidence that was
recounted by the appellate court below. And, as the appellate court
concluded, there is nothing in this evidence, other than the statement
that defendant was seen Ain or around@ the van, that would suggest a
possible link between defendant and the commission of a crime.
Notwithstanding the foregoing, the majority infers that defendant
and his codefendants Awere connected with one another@ and, based
in part on this inference of a connection, the majority concludes that
defendant was involved in the theft of the license plate. The majority
reasons as follows:
A[L]ogic dictates that at least two persons had to have
been involved in the theft at Roth=s company to have been
able to drive both the van and the white car that followed it.
There was no evidence the van or the car stopped anywhere to
drop off any passengers or to pick up additional ones between
leaving Roth=s company property and parking at the gas
station. Thus, logically, the same individuals were in the van
and the car when the vehicles left Roth=s company property
and when they parked at the gas station. Moreover, Officer
Henninger did not recall seeing any other customers at the gas
station.
One man was observed in the white car parked near the
van at the gas station. Defendant was one of two other men
who together came out of the convenience store and
approached Officer Henninger. Roth identified defendant as
one of the men he had previously seen in or around the van.
Based on these facts, it was reasonable to infer that the three
men were connected with one another and had been
personally observed by the eyewitness and identified as the
same men who had been in or around the van bearing the
stolen license plate. Based on this connection, the brief time
that had passed since the theft of the license plate, and the
implausibility that anyone had left or entered the vehicles
between their departure from Roth=s property and their arrival
at the gas station, it was reasonable to conclude defendant
was involved in that crime.@ Slip op. at 5-6.

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 I note, initially, that, while it might be logical to infer that at least
two persons were involved in the theft of the license plate, it does not
necessarily follow that more than two were involved. There was
nothing in the evidence available to the police at the time of
defendant=s arrest to indicate that it was defendant and a codefendant,
rather than the other two codefendants, who were involved in the
theft. More important, even if it is assumed, arguendo, that there
were grounds to infer a connection between the three defendants,
such an inference is insufficient to support probable cause. The
requirement that probable cause must be particularized with respect
to the person arrested cannot be undercut or avoided by simply
pointing to the fact that coincidentally there exists probable cause to
arrest another individual who is in the company of that person.
Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct.
338, 342 (1979); Lee, 214 Ill. 2d at 486; see also United States v. Di
Re, 332 U.S. 581, 592-94, 92 L. Ed. 210, 219-20, 68 S. Ct. 222, 227-
28 (1948) (holding that the presence of the defendant in an
automobile with a suspected criminal and a government informant
did not supply a law enforcement officer with probable cause to arrest
the defendant on a conspiracy theory). In the case at bar, an inference
of a connection between defendant and the other two codefendants
might have supported a reasonable suspicion, but it was insufficient
to furnish probable cause for a warrantless arrest. Accordingly, the
police lacked probable cause to arrest defendant, and the trial court
should have granted defendant=s motion to suppress his postarrest
inculpatory statements.
While I would hold that defendant=s custodial statements should
have been suppressed, I would also hold, as did the appellate court,
that the admission of these statements was harmless beyond a
reasonable doubt. A >[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.= @ Harrington v. California, 395
U.S. 250, 251, 23 L. Ed. 2d 284, 286, 89 S. Ct. 1726, 1727 (1969),
quoting Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705,
710-11, 87 S. Ct. 824, 828 (1967). In determining whether a
constitutional error is harmless, the test to be applied is whether it
appears beyond a reasonable doubt that the error at issue did not
contribute to the verdict obtained. Sullivan v. Louisiana, 508 U.S.
275, 279, 124 L. Ed. 2d 182, 189, 113 S. Ct. 2078, 2081 (1993).

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 After reviewing the record in the case at bar, the appellate court
concluded that defendant=s postarrest statementsBhis request that his
wallet be retrieved from the van and his admission that he was in the
area of Emery Worldwide on the morning in questionBwere not
material to the trial court=s guilty finding. 349 Ill. App. 3d at 852. The
appellate court pointed to the following evidence, which the court
held was admissible and Awould not have been subject to exclusion as
fruit of the poisonous tree.@ 349 Ill. App. 3d at 852. In the early
morning of December 29, 2001, an employee of Emery Worldwide in
Bensenville observed a white CompUSA van and a white passenger
vehicle near Emery Worldwide=s loading dock. Computer equipment
was being stored in that area in a tractor trailer. Subsequently, police
found a white CompUSA van and a white passenger vehicle in a gas
station parking lot in nearby Franklin Park. Police determined that the
van was stolen. Defendant and his two codefendants were seen in the
vicinity of the stolen van. Police inventoried the contents of the van
and found $40,000 worth of computer equipment belonging to Emery
Worldwide. Also found in the van were a wallet stipulated by
defendant to be his, an article of clothing belonging to one of the
codefendants, and hand-held, two-way radios. Police found a
matching hand-held radio in the white passenger vehicle.
With regard to the wallet found in the van, the record contains the
following stipulated fact: Franklin Park police Afound in the white
COMP U.S.A. van the Defendant=s wallet.@ This fact is independent
of defendant=s custodial request that his wallet be retrieved from the
van.
In view of the evidence recounted by the appellate court, which
excludes defendant=s postarrest inculpatory statements, I agree with
the appellate court that the improper admission of these custodial
statements did not contribute to defendant=s conviction. The appellate
court correctly concluded that the admission of defendant=s postarrest
statements was harmless beyond a reasonable doubt.
Accordingly, I concur in the majority=s affirmance of the
appellate court=s judgment. However, I disagree with the reasoning
employed by the majority in reaching this decision.
I also concur in the majority=s decision upholding the
constitutionality of section 5B4B3 of the Unified Code of Corrections
(730 ILCS 5/5B4B3 (West 2002)). The majority applies both the

-23-
special needs test and the balancing test, and demonstrates correctly
that section 5B4B3 is constitutional under either analysis.

JUSTICE FREEMAN joins in this special concurrence.

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