concurring:
I join in the judgment of the Court reversing the judgment of the Circuit Court for Montgomery County which held that the Maryland DNA Collection Act is unconstitutional. I write separately because, in my view, the statute is constitutional on the narrow grounds that DNA sampling is an acceptable means of identifying prisoners, and on this basis, alone, is reasonable.1
*44I cannot agree with the majority that prisoners, or for that matter, all convicted felons, merely because they are incarcerated, lose the expectation of privacy for bodily fluids. Prisoners do not forfeit their general right to remain free from bodily invasions, even though they do have a greatly reduced expectation of privacy. That reduced expectation of privacy is limited generally to security concerns and prison administration, see Jones v. Murray, 962 F.2d 302, 311-12 (4th Cir.1992) (Murnaghan, J., concurring in part and dissenting in part), and bodily searches of inmates are to be considered in light of the balance between these interests and individual privacy rights. See Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 1885, 60 *45L.Ed.2d 447 (1979). Therefore, practical matters, generally related to the control of dangerous inmates, determine the acceptability of Fourth Amendment limitations. See Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984). These considerations attest to some privacy right among prisoners, even if that right may be limited to goals related to prison administration and security. As such, absent more specific justification, invasion of an inmate’s body cannot be supported by a lessened expectation of privacy alone.
I find the State’s analogy to the collection of fingerprints convincing and would uphold the statute on that basis alone. Although the DNA sample differs from a fingerprint in that far more personal information could be discovered and revealed,
“DNA type need be no more informative than an ordinary fingerprint. For example, the thirteen core STR loci used in current criminal offender databases are noncoding, nonregulatory loci that are not linked to any genes in a way that would permit one to discern any socially stigmatizing conditions. The ‘profile’ of an individual’s DNA molecule that is stored in a properly constructed DNA identification database (like the FBI’s Combined DNA Index System (CODIS)) is a series of numbers. The numbers have no meaning except as a representation of molecular sequences at DNA loci that are not indicative of an individual’s personal traits or propensities. In this sense, the CODIS 13-STR ‘profile’ is very much like a social security number' — though it is longer and is assigned by chance, not by the federal government. In itself, the series of numbers can tell nothing about a person. But because the sequence of numbers is so likely to be unique (with the exception of identical twins), it can be linked to identifiers such as name, date of birth, or social security number, and used to determine the source of DNA found in the course of criminal investigations or to identify human remains or persons who are lost or missing.”
*46D. Kaye & M. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wis. L. Rev. 413, 431-32 (2003) (footnotes omitted).
Under the Maryland DNA Collection Act, the use of the information acquired by the State is limited. Section 2-505 of the Public Safety Article states, in relevant part:
“(b) Limitations on DNA records. — (1) Only DNA records that directly relate to the identification of individuals shall be collected and stored.
(2) DNA records may not be used for any purposes other than those specified in this subtitle.”
Section 2-512 of the Public Safety Article states, in relevant part:
(a) Disclosure of DNA information to unauthorized persons prohibited — A person who, by virtue of employment or official position, has possession of or access to individually identifiable DNA information contained in the statewide DNA data base system or statewide DNA repository may not willfully disclose the information in any'manner to a person or agency not entitled to receive the information.
(b) Obtaining DNA information without authorization prohibited — A person may not, without authorization, willfully obtain individually identifiable DNA information from the statewide DNA data base system or statewide DNA repository.
The fact that more information may be gathered with DNA as opposed to fingerprinting should not preclude the State from acquiring the information under the statute.2
Reasonableness dictates whether searches are acceptable under the Fourth Amendment, and this is determined by balancing privacy interests of the individual with legitimate governmental interests. See Wyoming v. Houghton, 526 U.S. *47295, 299-800, 119 S.Ct. 1297, 1300, 143 L.Ed.2d 408 (1999). The Supreme Court has voiced a general preference for requiring either warrants or individualized suspicion to tip the balance in favor of allowing searches. See id. at 309, 119 S.Ct. at 1305, 143 L.Ed.2d 408 (Stevens, J., dissenting). In certain circumstances, the Supreme Court has relaxed or eliminated this preference. See e.g., United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, this is acceptable only where the balance of governmental and private interests makes such a standard reasonable. See Knights, 534 U.S. at 121, 122 S.Ct. at 592, 151 L.Ed.2d 497. Collection of DNA samples from certain incarcerated persons fits squarely within this acceptable category.
The collection of DNA information for identification purposes, particularly from a cheek swab, constitutes a minimal intrusion upon an individual’s Fourth Amendment interests.3 The technique is only slightly invasive and the data is used exclusively for the purpose of identification. While the collection of DNA samples through buccal swab testing is an invasion of the body subject to Fourth Amendment limitations,4 the procedure is limited to sampling from the mouth, *48and is neither long, nor painful. See D. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455, 477-78 (2001). This procedure subjects a prisoner to little more inconvenience than routine fingerprinting, and it is only because the sampling occurs inside the mouth, and not on the surface of the body, that the search method itself creates a greater constitutional question than that seen in fingerprinting.5
When a person has been convicted of certain crimes, the State has an interest in the accurate identification of that person. This proposition is supported by an extensive history, as law enforcement has long been involved in “the acquisition, collection, classification and preservation of identification records of those processed through the criminal tribunals.” United States v. Krapf, 285 F.2d 647, 650 (3rd Cir.1961). Fingerprinting has served as an acceptable means of reaching these goals for many years. See id. at 650-51. In one of the first cases dealing with fingerprinting in the prison system, Judge Augustus N. Hand justified that method of identification, stating:
“Any restraint of the person may be burdensome. But some burdens must be borne for the good of the community. The slight interference with the person involved in finger printing seems to us one which must be borne in the common interest.
“Finger printing seems to be no more than an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal *49laws. It is known to be a very certain means devised by modern science to reach the desired end ...”
United States v. Kelly, 55 F.2d 67, 68-69 (2nd Cir.1932) (citations omitted). This same reasoning applies equally to the use of DNA collection today; identifying prisoners through buccal swab testing falls within the category of a “slight interference” necessary for the “common interest.”
The collection of DNA is a more precise method of identification than fingerprinting, and thus better serves the State interest in accurately identifying prisoners. No two individuals, excluding identical twins, share the same genetic makeup, and because an individual’s DNA is the same in every nucleated cell in the body, and remains so for life, DNA analysis makes it possible to identify a person to the practical exclusion of all others. See T. Fleming, Annotation, Admissibility of DNA Identification Evidence, 84 A.L.R.4th 313, 319-20 (1991). This level of accuracy has allowed DNA analysis to not only help identify thousands of criminal suspects, but also aid in the exoneration of many wrongfully accused prisoners.
The balance between prisoner privacy rights and governmental interests in identifying prisoners clearly weighs in favor of allowing collection of DNA samples for the purposes of identification. It is clear that the State’s interest in identifying prisoners is significant, and as seen in the Maryland DNA Collection Act, the privacy rights violated by buccal swab DNA collection are minimal. Therefore, just as suspicionless fingerprinting of prisoners is reasonable under the Fourth Amendment, suspicionless collection of DNA samples from prisoners is also reasonable.
. The State argues that the Maryland DNA Collection Act is constitutional based on the “special needs” doctrine, as the collection of DNA from convicted offenders serves a special need of the government. Some courts have held prisoner DNA databases to be acceptable on that basis. See e.g., Green v. Berge, 354 F.3d 675, 679 (7th Cir.2004); United States v. Kinder, 335 F.3d 1132, 1146 (10th Cir.2003). I do not believe that "special needs” justifies suspicionless collection of DNA from prison inmates.
I agree with Judge Wilner, that the purpose of the DNA collection act is to further normal law enforcement needs. See Wilner, J., concurring. Therefore, the "special needs” doctrine cannot support the constitutionality of the Maryland DNA Collection Act under the Fourth Amendment.
Justice Blackmun introduced the term “special needs” in the context of Fourth Amendment law. See New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 747, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring). *44As explained in Ferguson v. Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001):
"Justice Blackmun agreed with the Court that there are limited exceptions to the probable-cause requirement, in which reasonableness is determined by ‘a careful balancing of governmental and private interests,’ but concluded that such a test should only be applied 'in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable
Id. at 74 n. 7, 121 S.Ct. at 1286 n. 7, 149 L.Ed.2d 205 (emphasis added) (citations omitted). While accepting this interpretation of search and seizure law, the Supreme Court has prohibited "special needs” analysis in the context of ordinary law enforcement activities. See id. at 84, 121 S.Ct. at 1291-92, 149 L.Ed.2d 205.
I agree with the special needs analysis set out by Justice Robert Utter, in State v. Olivas, 122 Wash.2d 73, 856 P.2d 1076 (1993) (concurring):
"[T]he ‘special needs’ analysis ... was not designed for application to searches and seizures in the context of ordinary law enforcement. Instead, the non-consensual DNA testing scheme should be analyzed and upheld under traditional doctrines of criminal Fourth Amendment law.”
Id. Noting that the rationale of the "special needs" doctrine has not been fully elaborated by the Supreme Court, Justice Utter opined that it is unclear whether courts are to balance the government's need' to conduct a search against an individual’s privacy interest, or to balance the government’s need to conduct the search without a watrant against an individual’s privacy interest. See id at 1090. If "special needs” justifies a search under the former, the Fourth Amendment and the warrant requirement will be swallowed by the exception to the rule. See id. at 1092 (noting that if "special needs” analysis were to be extended to the arena of criminal law enforcement, the warrant requirement of the Fourth Amendment could ultimately be rendered illusory).
. Additional or subsequent use of the DNA sample by law enforcement is a legitimate concern, and one the Maryland Legislature has addressed in the statute. See Section 2-512 of the Public Safety Article. Nonetheless, the possibility of additional use, either lawful or unlawful, does not make an initial lawful seizure unlawful.
. While buccal swab testing is minimally invasive, even less intrusive methods of collecting DNA samples have been developed. It is now possible to “extract DNA by applying a sticky patch to the skin on an individual's forearm for a moment to acquire epidermal cells without puncturing the skin surface." B. Quarmby, The Case for National DNA Identification Cards, 2003 Duke L. & Tech. Rev. 2, 20 (2003). Using such a technique would further limit the intrusive nature of DNA collection, primarily because there would be no intrusion into the human body.
. The Supreme Court has long recognized that compelled intrusion into the human body constitutes a search as recognized in the Fourth Amendment. See e.g., Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989); Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 *48(1985); Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966).
. The Supreme Court has repeatedly noted, "our society's concern for the security of one's person,” Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989), and in Winston v. Lee, the Court noted that Fourth Amendment analysis, "required a discerning inquiry into the facts and circumstances to determine whether intrusion [into the human body is] justifiable.” 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985).