specially concurring.
I completely concur with the decision reached in this opinion. I write separately because I agree with the Fourth Circuit of the United States Court of Appeals that neither the “special needs” exception to suspicionless searches nor the “balancing test” applies to convicted felons who are compelled by court order at sentencing to provide a sample of their blood, saliva or tissue for DNA analysis. See Jones v. Murray, 962 F.2d 302, 307 n.2 (4th Cir. 1992).
In the instant case, defendant was ordered at the time of sentencing to supply a specimen of blood for analysis and categorizing into genetic marker groupings pursuant to section 5 — 4—3, “Persons convicted of, or found delinquent for, certain offenses or institutionalized as sexually dangerous; specimens; genetic marker groups.” (Emphasis added.) 730 ILCS 5/5 — 4—3 (West 2002). In pertinent part, section 5 — 4—3(a)(3.5) provides:
“Any person *** convicted or found guilty of any offense classified as a felony under Illinois law *** shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section, provided such person is:
(3.5) convicted or found guilty of any offense classified as a felony under Illinois law *** on or after the effective date of this amendatory Act of the 92nd General Assembly [August 22, 2002.]” 730 ILCS 5/5 — 4—3(a)(3.5) (West 2002).
“730 ILCS” is the Unified Code of Corrections. Chapter 5 of the Unified Code of Corrections is entitled “SENTENCING.” Article 4 of chapter 5 is also entitled “SENTENCING.” Clearly then, at least under Illinois’ statutory scheme, court orders entered pursuant to section 5 — 4—3(a)(3.5) are entered as a part of a convicted felon’s sentence. Consequently, a court order entered pursuant to section 5 — 4—3(a)(3.5) may only be entered after the defendant has been found guilty of a felony beyond a reasonable doubt. These requirements (a felony conviction and a court order) provide substantially more protection to defendants than do the requirements of a search warrant, or the requirements of any “special needs” exception (see City of Indianapolis v. Edmond, 531 U.S. 32, 37, 148 L. Ed. 2d 333, 340-41, 121 S. Ct. 447, 451-52 (2000); Ferguson v. City of Charleston, 532 U.S. 67, 84, 149 L. Ed. 2d 205, 220, 121 S. Ct. 1281, 1292 (2001); Green v. Berge, 354 F.3d 675, 677-78 (7th Cir. 2004)), balancing test (see People v. Wealer, 264 Ill. App. 3d 6, 14, 636 N.E.2d 1129 (1994); People v. Garvin, 349 Ill. App. 3d 845, 855, 812 N.E.2d 773, 782 (2004)), or consideration of the “totality of the circumstances” (see People v. Lampitok, 207 Ill. 2d 231, 249, 798 N.E.2d 91 (2003)).
In Lampitok, our supreme court reviewed the holdings in United States v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497, 122 S. Ct. 587 (2001), and Griffin v. Wisconsin, 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987), and applied the totality of the circumstances test to determine whether a search of a probationer’s motel room was reasonable at its inception and in its scope under the fourth amendment. Lampitok, 207 Ill. 2d at 249. The supreme court concluded that under the facts of that case, “a probation search of [the probationer] upon no individualized suspicion would be constitutionally unreasonable.” Lampitok, 207 Ill. 2d at 252.
Griffin, Knights and Lampitok all involved searches of probationers’ residences long after the individual probationer was placed on probation. Similarly, the court in United States v. Kincade, 379 F.3d 813, 839-40 (9th Cir. 2004) (en banc), found constitutional the DNA Analysis Backlog Act of 2000’s (42 U.S.C. § 14135a(c)(l) through (c)(2) (2000)) requirement that certain federal offenders who were on parole, probation or supervised release submit to compulsory DNA profiling even though the offenders may have been sentenced years previously. In the instant case, the court order directing defendant to supply a blood sample was entered at the time of sentencing and it was contemplated that this would be a one-time occurrence which would be carried out immediately. This order is much less onerous than the court orders at issue in Griffin, Knights, and Lampitok, all of which ostensibly deprived the probationers of any right to complain of any search that could take place anywhere or at any time, subject only to the whim or suspicion of a probation officer. Also, the instant order was entered at the time of sentencing, unlike the federal statute’s compulsory DNA profiling which was imposed on defendants years after their sentences were imposed.
In Hudson v. Palmer, 468 U.S. 517, 524, 82 L. Ed. 2d 393, 402, 104 S. Ct. 3194, 3199 (1984), the Supreme Court considered “whether the Fourth Amendment applies within a prison cell.” The Hudson Court first held: “The applicability of the Fourth Amendment turns on whether ‘the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action.’ ” Hudson, 468 U.S. at 525, 82 L. Ed. 2d at 402, 104 S. Ct. at 3199, quoting Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 226, 99 S. Ct. 2577, 2580 (1979).
Applying this standard to the issue before it, the Supreme Court held:
“Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.” Hudson, 468 U.S. at 525-26, 82 L. Ed. 2d at 402-03, 104 S. Ct. at 3200.
The Court explained that, in addition to the “institutional needs and objectives” of prison facilities, chief among which is internal security, the restrictions and retraction of rights from prisoners “also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.” Hudson, 468 U.S. at 524, 82 L. Ed. 2d at 401-02, 104 S. Ct. at 3199.
I believe that the analysis employed in Hudson is more appropriately applicable to the instant case than any of the other Supreme Court cases cited by either the State or defendant. A convicted felon cannot claim a “justifiable,” “reasonable” or “legitimate” expectation of privacy in his blood, saliva or tissue when, at sentencing, the circuit court orders that the convicted person submit a sample of the same for purposes of DNA profiling. This is because (1) section 5 — 4—3(a)(3.5) provides more than adequate protection to the rights of convicted felons; (2) the taking of blood, saliva or tissue samples pursuant to section 5 — 4—3(a) (3.5) is comparable to fingerprinting; and (3) the taking of such samples strongly serves the recognized purpose of deterrence. Consequently, I agree with Justices Greiman and Theis and I would also affirm the constitutionality of section 5 — 4—3(a)(3.5).
As to defendant’s expressed concern that the information gathered from defendant’s DNA could be misused, subsection 5 — 4—3(f) provides that the genetic marker grouping analysis information obtained from the samples submitted by convicted individuals shall be confidential and may only be released to peace officers and prosecutorial agencies. 730 ILCS 5/5 — 4—3(f) (West 2002). Subsection (f) provides that the information attained from the samples shall be maintained in a single State databank, which may be uploaded into a national databank. These databanks serve the same purpose as does the National Crime Information Center’s (NCIC) fingerprint databank, but with significantly more protection for the individuals who must submit samples for DNA profiling. The NCIC fingerprint databank contains millions of sets of fingerprints which are taken from arrestees. In addition to verifying the identification of the arrestee, the fingerprint databank allows the police to quickly compare the fingerprints of arrestees with fingerprints recovered in connection with unsolved criminal cases. Section 5 — 4—3(a) (3.5) does not apply to mere arrestees. Rather, it applies only to convicted felons who are ordered at sentencing to submit samples for DNA profiling.
For the above-stated reasons I strongly concur.