(concurring) — While I concur in the judgment issued today, I write separately to express my understanding of the appropriate grounds for upholding nonconsensual DNA (deoxyribonucleic acid) testing under RCW 43.43.754 against Fourth Amendment challenge. In my view, the "special needs" analysis relied upon by the majority was not designed for application to searches and seizures in the context of ordinary law enforcement. Instead, the nonconsensual DNA testing scheme should be analyzed and upheld under traditional doctrines of criminal Fourth Amendment law.85
I
The fourth amendment to the United States Constitution guarantees that:
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.
U.S. Const. amend. 4. Not all searches and seizures are prohibited by the Fourth Amendment, only those which are "unreasonable". United States v. Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985). In general, the *100question of whether a particular search is "reasonable" is answered by determining whether the search was made pursuant to a warrant supported by probable cause. See United States v. Place, 462 U.S. 696, 701, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). "Except in certain well-defined circumstances, a search or seizure ... is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989) (citing Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980)).
Over the past few years, however, the United States Supreme Court has recognized the existence of " 'special needs, beyond the normal need for law enforcement, [which] make the warrant and probable-cause requirement impracticable.' " Griffin v. Wisconsin, 483 U.S. 868, 873, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985) (Blackmun, J., concurring)). When such "special needs" exist, a reviewing court must "balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context." Railway Labor Executives' Ass'n, 489 U.S. at 619.
Employing "special needs" analysis, the Court has upheld warrantless and even suspicionless administrative searches in a variety of contexts. See, e.g., New Jersey v. T.L.O., supra (upholding school principal's search of student's handbag without probable cause); Griffin v. Wisconsin, supra (upholding warrantless search of probationer's home by probation officer); O'Connor v. Ortega, 480 U.S. 709, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987) (upholding hospital's warrantless search of doctor's workspace).
The precise application of "special needs" balancing has still not been fully elaborated by the Supreme Court. It seems to be unclear, for example, whether courts employing "special needs" are to balance the government's need to conduct a given search against an individual's privacy interest, or instead to balance the government's need to conduct the *101search without a warrant against an individual's privacy interests.86
One facet of "special needs" balancing which is clear is that it is not intended to be applied where the government's interest is limited to the normal need for law enforcement. The "special needs" test, as originally formulated by Justice Blackmun in T.L.O., 469 U.S. at 351, and as applied by the Court's decisions, indicates that "special needs" balancing is only relevant where the government's needs are not those associated with the "normal need for law enforcement". See, e.g., Railway Labor Executives' Ass'n, 489 U.S. at 620-21 (drug testing upheld under "special needs" where purpose was not "the prosecution of employees, but rather 'to prevent accidents and casualties in railroad operations . . ..'") (quoting 49 C.F.R. § 219.1(a)); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 666, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989) ("special needs" applied to drug testing by customs service, in part because test results could not be employed in criminal prosecutions).
Because "special needs" is only relevant where the State's need is beyond that of ordinary law enforcement, it is not applicable to these cases. The State's interest in nonconsensual DNA testing of convicted sex and violent offenders is clearly related to the normal need for law enforcement. The purpose of the testing is to create a DNA databank, and the purpose of the databank is to assist in the investigation and prosecution of criminal offenses.
The legislature further finds that the accuracy of identification provided by this method is superior to that of any presently existing technique and recognizes the importance of this scientific breakthrough in providing a rehable and accurate tool for the investigation ... of sex offenses . . . and violent offenses ....
Laws of 1989, ch. 350, § 1, p. 1748. See also Laws of 1989, ch. 350, § 2, p. 1748 (DNA identification system established *102to "support criminal justice services") (codified at RCW 43.43.752). These purposes, the investigation of crimes and the support of criminal justice services, are the quintessence of law enforcement.
I recognize that a Federal District Court in Virginia has applied "special needs" balancing to uphold a DNA testing scheme similar to RCW 43.43.754. Jones v. Murray, 763 F. Supp. 842 (W.D. Va. 1991), aff'd in part, rev'd in part, 962 F.2d 302 (4th Cir:), cert. denied, _U.S._, 121 L. Ed. 2d 378, 113 S. Ct. 472 (1992).87 That court concluded that the establishment of a DNA databank was not a "normal" law enforcement need, but rather a "special" law enforcement need. 763 F. Supp. at 845. The court relied principally on Griffin v. Wisconsin, supra, where the Supreme Court employed "special needs" to uphold a warrantless search of the home of a probationer for evidence of probation violations. 763 F. Supp. at 845. In Griffin, however, the Court made clear that the key element of the probation program which triggered "special needs" balancing was not its tangential relationship to law enforcement. Instead, administering a probation program was roughly analogous to operating a prison or school, where the "special needs" of the government in effective administration have been well recognized. 483 U.S. at 873. Wisconsin's interest was not law enforcement per se, but rather ensuring that its probation system operated smoothly. Griffin therefore does not support the application of "special needs" where, as here, the State is pursuing the normal law enforcement need for discovering and prosecuting criminal activity.
II
Since "special needs" should not apply, the DNA testing scheme adopted by the State must be analyzed under traditional principles of Fourth Amendment law. Under these prin*103tiples, nonconsensual blood extraction under RCW 43.43.754 may be constitutional even though conducted without probable cause or a warrant. Even in what might be otherwise denominated "pure" law enforcement cases, the United States Supreme Court has crafted a number of narrow exceptions to the general warrant and probable cause requirements of the Fourth Amendment, one of which, the minimally intrusive search exception, applies here. Under the narrow balancing test associated with this exception, the nonconsensual extraction of blood from convicted sex and violent offenders passes constitutional scrutiny under the Fourth Amendment.
A
The State concedes, as it must, that nonconsensual blood extraction under RCW 43.43.754 constitutes a search for Fourth Amendment purposes. As the Supreme Court held in Railway Labor Executives' Assn, "it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable." 489 U.S. at 616. Appellants claim that, unless "special needs" applies, the existence of a search means that there is no further issue in these cases other than whether the extraction of their blood is supported by a warrant, probable cause, or individualized suspicion. Majority, at 84 (citing Brief of Appellants, at 9-11).
The United States Supreme Court has recognized a number of limited and carefully crafted exceptions to the general requirement of a warrant issued upon probable cause, exceptions which clearly apply to the criminal context. Such exceptions include searches incident to arrest, Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969), exigent circumstances (like the imminent destruction of evidence), Cupp v. Murphy, 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000 (1973), and fixed-point police stops of motorists on public highways, Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990).
An exception to the warrant and probable cause requirements also exists for searches and seizures which involve only a minimal intrusion. The Court has applied this type of *104exception to uphold "stop and frisk" searches, Terry v. Ohio, 392 U.S. 1, 19-20, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and brief border searches, United States v. Martinez-Fuerte, 428 U.S. 543, 557-60, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976), and to strike down warrantless interrogations during full-scale detention, Dunaway v. New York, 442 U.S. 200, 209-10, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979). See also Sitz, 496 U.S. at 457 (Brennan, J., dissenting). When the intrusion incurred by a given search or seizure is minimal, a reviewing court may balance the government's interest in conducting the search, the degree to which the search actually advances that interest, and the gravity of the intrusion upon personal privacy to determine whether the search is reasonable. Brown v. Texas, 443 U.S. 47, 50-51, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979).
The minimally intrusive quality of blood extraction has repeatedly been noted. See, e.g., Railway Labor Executives' Ass'n, 489 U.S. at 625; Winston v. Lee, 470 U.S. 753, 762, 84 L. Ed. 2d 662, 105 S. Ct. 1611 (1985) ("blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity"). Since extraction under RCW 43.43.754 qualifies as minimally intrusive, it is appropriate for this court to analyze the constitutionality of the statute by examining the government's need for a DNA bank, the degree to which nonconsensual blood testing serves that need, and the burden which the testing imposes on individual privacy.
It might appear that since a form of balancing occurs both under the minimally intrusive search exception and under "special needs", it is a matter of judicial indifference which analysis applies. The choice of balancing tests, however, is critical. Because "special needs" is not limited to minimally intrusive searches or seizures, an extension of that analysis into the arena of criminal law enforcement could ultimately render the warrant requirement itself illusory. In order to prevent the extension of broad-gauged balancing tests into all corners of the Fourth Amendment, it is absolutely neces*105sary that we reject "special needs" analysis in the context of ordinary law enforcement.88
B
I have concurred in the judgment of the majority in these cases because I am convinced that this balancing favors the constitutionality of RCW 43.43.754. The State's interest in developing a reservoir of information useful to prosecuting recidivists is worthy of judicial cognizance. The State also has a powerful interest in developing scientific techniques like DNA typing which have the capacity to exculpate criminal defendants as well as inculpate them.89
The nonconsensual extraction of blood and subsequent DNA testing for purposes of developing a DNA databank directly farthers these purposes. This court has affirmed the basic principle that such evidence may be admissible under certain circumstances to inculpate defendants. State v. Cauthron, 120 Wn.2d 879, 899, 846 P.2d 502 (1993).90 DNA typing may also be useful in exculpating criminal defend*106ants. Moreover, even if existing methods of DNA typing are of questionable value, the possibility exists that more precise methods will be developed in the near future. Nonconsensual blood extraction and testing is therefore closely related to the State's interest in prosecuting recidivists and exculpating innocent defendants.
The final, and in my view, determinative consideration in conducting a minimally intrusive search balancing test is the privacy interests upon which the search in question intrudes.91 In these cases, the privacy interest is that of a convicted sex or violent offender in his or her identity. Under any form of analysis, this interest is minimal. It has been recognized that convicted persons, particularly those who are ultimately incarcerated, have a significantly diminished privacy interest. Bell v. Wolfish, 441 U.S. 520, 559-60, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984).
Furthermore, such individuals have a particularly limited privacy interest in the mere fact of their identity. The analogy to fingerprinting is extremely persuasive, in that both DNA typing and fingerprinting impinge on similar privacy interests. While the Fourth Amendment does impose certain constraints upon the fingerprinting of free persons, Davis v. Mississippi, 394 U.S. 721, 727-28, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969), the constitutionality of fingerprinting convicted persons, even accused persons, is unquestioned. See Jones v. Murray, 962 F.2d 302, 306-07 (4th Cir.), cert. denied, _U.S. _, 121 L. Ed. 2d 378, 113 S. Ct. 472 (1992). Since DNA typing is functionally equivalent to fingerprinting, noncon*107sensual blood extraction for DNA typing therefore intrudes upon a necessarily diminished privacy interest.
Importantly, nonconsensual blood extraction and testing under RCW 43.43.754 does not conflict with the purposes of the warrant requirement of the Fourth Amendment. "A warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope." Railway Labor Executives' Ass'n, 489 U.S. at 622. "[It] also provides the detached scrutiny of a neutral magistrate, and thus ensures an objective determination whether an intrusion is justified in any given case." Railway Labor Executives' Ass'n, 489 U.S. at 622. Here, the structure of the DNA typing scheme essentially fulfills these functions. Since the use of blood samples obtained under RCW 43.43.754 is limited exclusively to DNA typing, the burden upon privacy interests is narrowly cabined. Also, since the DNA typing scheme uniformly applies to a designated category of individuals, there is no room for the imposition of the testing in an arbitrary and oppressive fashion. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 672 n.2, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989) (Fourth Amendment prevents " 'arbitrary and oppressive interference with the privacy and personal security of individuals") (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976)).
In sum, I believe the limited balancing mandated by the "minimally intrusive search" exception to the general warrant and probable cause requirements of the Fourth Amendment favors the constitutionality of nonconsensual blood extraction under RCW 43.43.754.
It is worth pointing out reasons I believe this approach, based on traditional Fourth Amendment principles, is superior to the "special needs" analysis adopted by the majority. First, the approach I have described here makes the constitutionality of RCW 43.43.754 clearly dependent upon the class of persons upon which it was designed to operate, convicted sex and violent offenders. We would be appalled, I hope, if the State mandated nonconsensual blood tests of the public at large for pur*108poses of developing a comprehensive Washington DNA databank. The Fourth Amendment guaranty against unreasonable searches and seizures would mean little indeed if it did not protect citizens from such oppressive government behavior. Under this analysis, such a testing program would clearly be unconstitutional.
Second, this approach rests heavily on the close fit between the purposes of establishing the DNA database and the process by which the testing takes place. It would, therefore, not support the testing of the blood samples obtained for purposes other than establishing the DNA databank. As the Supreme Court has recognized, the testing of blood following extraction may constitute an independent search for purposes of the Fourth Amendment. See Railway Labor Executives' Ass’n, 489 U.S. at 616 ("ensuing chemical analysis of the sample ... is a further invasion"); see also National Treasury Employees Union, 489 U.S. at 679. Were the blood samples extracted under RCW 43.43.754 to be tested for purposes other than the limited statutory purpose of DNA typing, this additional testing would be subject to further Fourth Amendment scrutiny.
Lastly, a minimally intrusive search approach avoids the conceptual difficulty of applying a form of analysis which was developed in the context of administrative searches to the field of normal law enforcement. If we extend the broad scope of "special needs" balancing to the context of law enforcement, even the traditional requirement of a warrant issued upon probable cause may be subject to being balanced away when governmental needs appear strong enough. In upholding the DNA typing scheme established by the Legislature, we should emphatically reject the applicability of "special needs" analysis.
Ill
When determining the constitutionality of novel and potentially intrusive new forms of law enforcement such as nonconsensual blood testing for DNA typing, courts must exercise the greatest care not to inadvertently erode the precious guaranties of personal liberty embodied in the Fourth Amendment.
*109The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.
Almeida-Sanchez v. United States, 413 U.S. 266, 273, 37 L. Ed. 2d 596, 93 S. Ct. 2535 (1973). In my view, upholding RCW 43.43.754 requires only that we apply the traditional principles of Fourth Amendment law; it does not require us to dilute that law either by applying broad-gauged "special needs" balancing to law enforcement searches or by endorsing a rationale which would extend beyond the identification of convicted sex and violent offenders. In this fashion, we may permit the State to develop new and innovative techniques of law enforcement without sacrificing our "resolute loyalty to constitutional safeguards."
Johnson, J., concurs with Utter, J.
In addition to their Fourth Amendment argument, appellants have also raised an argument under article 1, section 7 of the Washington State Constitution. The majority has correctly determined that appellants’ claims under article 1, section 7 need not be addressed for failure to meet the requirements of State v. Gunwall, 106 Wn.2d 54, 58-63, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Majority, at 81-82.1 therefore do not discuss the relationship of the decision in these cases to my concurring opinion in State v. Curran, 116 Wn.2d 174, 189, 804 P.2d 558 (1991) (Utter, J., concurring).
The government's interest in searching without a warrant is necessarily much narrower than its need to engage in the search itself. The difference between these two interests was dramatically displayed in this court's split decision in In re A,B,C,D,E, 121 Wn.2d 80, 847 P.2d 455 (1993).
The chief difference between the Virginia testing scheme and RCW 43.43-.754 is that Virginia extended testing to all convicted felons, not merely those convicted of violent crimes or sex offenses. 763 F. Supp. at 843 (citing Va. Code Ann. § 19.2-310.2).
Scholars have commented on the capacity of "special needs" balancing to expand in scope and vitiate Fourth Amendment guaranties. See, e.g., Nuger, The Special Needs Rationale: Creating a Chasm in Fourth Amendment Analysis, 32 Santa Clara L. Rev. 89, 98, 129-31 (1992); Note, Skinner v. Railway Labor Executives' Association and the Fourth Amendment Warrant-Probable Cause Requirement: Special Needs Exception Creating a Shakedown Inspection?, 40 Cath. U.L. Rev. 117, 150 (1990-1991). One, for example, notes that balancing tests without carefully prescribed limits can be inherently dangerous because "when an individual's suspected harmful conduct is balanced against societal interests, individual privacy losses will appear negligible in relation to government's efforts to protect society." Nuger, 32 Santa Clara L. Rev. at 95. The minimally intrusive search exception minimizes this problem by limiting its applicability to a relatively narrow category of searches.
DNA typing may be employed to exculpate innocent criminal defendants. State v. Cauthron, 120 Wn.2d 879, 900, 846 P.2d 502 (1993) ("DNA typing yields evidence which has the potential to exculpate innocent people").
Chief Justice Dore dissented in Cauthron, arguing that DNA typing is still insufficiently developed to constitute an acceptable means of identification under the test elaborated in Frye v. United States, 293 F. 1013, 1014, 34 A.L.R. 145 (D.C. Cir. 1923). 120 Wn.2d at 911. I signed Justice Dore's dissent, but recognize that the court has rejected this position. I continue to adhere to the position expressed in my concurring opinion in State v. Kalakosky, 121 Wn.2d *106525, 551, 852 P.2d 1064 (1993) (Utter, J., concurring), that if DNA typing evidence is to be admitted in a criminal proceeding, it should be in association only with the most conservative estimates of its reliability.
This part of the balancing test does not simply restate the threshold inquiry as to whether the given search or seizure was minimally intrusive. While similar considerations may bear on whether a search was minimally intrusive and the character of the privacy interests intruded upon, the two need not be the same. For example, a search may be minimally intrusive (e.g., blood extraction), yet bear heavily on privacy interests (e.g., testing the extracted blood for the HIV virus).