dissenting in part, but concurring in the result as to the two juveniles.
¶ 56 The issue in this appeal is whether the State may seize a DNA sample from a juvenile arrested for an offense listed in A.R.S. § 8-238 as a condition of release without a search warrant, without a showing of probable cause to seize the sample, and before the juvenile has been convicted of any crime. The lead and concurring opinions (collectively, “majority”) hold the seizures are constitutional under the Fourth Amendment. They reason that because the juveniles have been arrested and there has been a judicial finding of probable cause to believe they committed a listed offense, the juveniles have a diminished expectation of privacy that must give way to the State’s interests in identifying them and ensuring the public’s safety.
¶ 57 With respect, I disagree with the majority’s conclusion these seizures pass constitutional muster under the Fourth Amendment.11 These seizures are not part and parcel of “routine” booking procedures, like fingerprinting, and, consequently, of little constitutional significance. Unlike fingerprinting, DNA sampling provides the State with a storehouse of information about an individual — information the State is not entitled to seize when, as here, the juveniles have not been convicted, are entitled to the presumption of innocence, and the State has failed to justify why it is entitled to invade the reasonable expectations of privacy the juveniles have in their DNA.
¶ 58 At the time of the juveniles’ advisory hearings, A.R.S. § 8-238 required a juvenile arrested for a violation of certain specified offenses to submit a “sufficient sample of buccal cells or other bodily substances” to the arresting agency for DNA testing and extraction. Although A.R.S. § 8-238 failed to identify what was to then happen to the DNA sample other than “testing and extraction,” the State asserts and the majority appears to agree the sample then became subject to A.R.S. § 13-610. Under that statute, DNA samples are to be sent to the Department of Public Safety for testing, analysis, and the preparation of a DNA “profile” which DPS is to enter into the “Arizona deoxyribonucleic acid system,” (“Arizona DNA Database”). See A.R.S. § 41-2418 (2011). In turn, the Arizona DNA database is linked to what is known as the “National DNA Index System,” a national database that contains DNA profiles contributed by federal, state, and local forensic laboratories (“NDIS”).12 If the juvenile failed to provide *223the DNA sample, A.R.S. § 8-238 required the juvenile court to revoke the juvenile’s release status, even if no other grounds for revocation of release existed. Thus, on its face, the statute entitled the State to obtain a DNA sample as a condition of pretrial release without either a warrant or any showing of probable cause to believe the DNA sample would lead to evidence of a crime. And, through the operation of the Arizona DNA Database and its link to the NDIS, the juvenile’s DNA profile, prepared from the DNA sample, would become part of a national DNA profile database accessible to local, state, and federal law enforcement agencies.
¶ 59 Under modern Fourth Amendment jurisprudence, whether a search has occurred depends on whether a person has a “reasonable” or “legitimate” expectation of privacy invaded by government action. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). This inquiry breaks down into two questions: first, whether the individual has ‘“exhibited an actual (subjective) expectation of privacy,’ ” that is, has sought to preserve something as private; and second, whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as reasonable,” that is, the individual’s expectation, viewed objectively, is justifiable under the circumstances. Id. (quoting Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967), and id. at 361, 88 S.Ct. at 516) (Harlan, J., concurring)).
¶ 60 The majority recognizes a buccal swab or blood draw to obtain a DNA sample constitutes a search under the Fourth Amendment. See supra ¶ 18 (lead opinion), ¶ 44 (concurring opinion). I agree. Indeed, under well established United States Supreme Court and Arizona case law, this is not open to question. See generally Schmerber v. California, 384 U.S. 757, 767-70, 86 S.Ct. 1826, 1834-35, 16 L.Ed.2d 908 (1966) (recognizing heightened privacy interests with respect to “intrusions beyond the body’s surface”); Maricopa Cnty. Juv. Action No. JV-512600 and JV-512797, 187 Ariz. 419, 423, 930 P.2d 496, 500 (1996) (upholding state statutes that required mandatory DNA testing of juveniles adjudicated of certain delinquent offenses).
¶ 61 As the majority also recognizes, a search conducted without a judicially approved warrant is normally considered per se unreasonable under the Fourth Amendment, subject to certain exceptions, such as the one at issue here, the “totality of the circumstances test.” Under that test, we must balance the degree the search intrudes upon an individual’s reasonable expectation of privacy against the degree the search is needed to promote legitimate government interests. See generally Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Although I agree with the majority we should analyze the seizures here under this test, the majority has misapplied the test by finding the juveniles have little if any expectation of privacy in their DNA because they have been arrested and a court has found probable cause to hold them for trial. See supra ¶¶ 28-30 (lead opinion), and ¶ 48 (concurring opinion).
¶ 62 The United States Supreme Court has held individuals may be searched as a condition of release under the totality test, but only after they have been convicted of a crime. Id. at 852, 126 S.Ct. at 2199 (upholding warrantless search of parolee); United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001) (upholding warrantless search of probationer). In so holding, the Court has explained it is the conviction that “informs both sides of [the totality test] balance.” Knights, 534 U.S. at 119, 122 S.Ct. at 591. Discussing probation, the Court has explained: “[Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.... Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled” Id. (internal citations and quotation marks omitted). See also United States v. Kincade, 379 F.3d 813, 834 (9th Cir.2004) (upholding mandatory DNA sampling under a federal statute that requires individuals who have been convicted of certain crimes and are incarcerated or on parole, probation, or supervised release):
[The] transformative changes wrought by a lawful conviction and accompanying term *224of conditional release are well-recognized by the Supreme Court, which often has noted that conditional releasees enjoy severely constricted expectations of privacy relative to the general citizenry — and that the government has a far more substantial interest in invading their privacy than it does in interfering with the liberty of law-abiding citizens.
(internal citations omitted).
¶ 63 Thus, under the totality test, it is a conviction that results in the lowered privacy interest. But here the juveniles have not been convicted of the charged offenses and have not lost the presumption of innocence or their right to demand the State prove the charges against them beyond a reasonable doubt.
¶ 64 The majority ignores the absence of any of the “transformative changes wrought by” a conviction and holds a judicial finding of probable cause that the juveniles committed the charged offenses will work in lieu of a conviction. As the lead opinion puts it, a judicial finding of probable cause is the “watershed event” that distinguishes the juveniles from mere arrestees and diminishes their reasonable expectations of privacy so that under the totality of the circumstances test the taking of the DNA samples is constitutionally permissible. See supra ¶ 22 (lead opinion). Thus, as the majority sees it, probable cause equals diminished privacy and the balance of interests tips in favor of the State. The lead opinion rests its conclusion that probable cause equals diminished privacy on the point that juveniles on release status are typically subjected to a number of routine restrictions and DNA sampling is no more intrusive than these restrictions, while the concurring opinion emphasizes that the taking of a DNA sample is analogous to fingerprinting and amounts to nothing more than another routine restriction on a juvenile as a condition of release. With respect, I disagree with each point. See supra ¶¶ 22-23 (lead opinion) and ¶¶ 51, 53-54 (concurring opinion).
¶ 65 Although a juvenile charged with an offense can properly be subjected to various routine restrictions that circumscribe or limit his or her freedom, the notion that DNA sampling is no more intrusive than these restrictions is flawed for two reasons. First, the routine restrictions identified by the lead opinion are wholly different in kind from a physical intrusion into a juvenile’s body to obtain a DNA sample. To suggest they are essentially the same flies in the face of common sense and controlling legal authority, including the United States Supreme Court’s decision in Schmerber.
¶ 66 There, police had probable cause to arrest the defendant and charge him with driving an automobile under the influence. But, those considerations by themselves did not permit the police to search him — through a blood draw — incident to his arrest. The Court stated that considerations that ordinarily permit a search of a defendant incident to an arrest
have little applicability with respect to searches and bodily intrusions beyond the body’s surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate seai’ch.
384 U.S. at 769-70, 86 S.Ct. at 1835. See also State v. Barnes, 215 Ariz. 279, 280-81, ¶ 7, 159 P.3d 589, 590-91 (App.2007) (citing Schmerber, defendant’s arrest does not obviate need for warrant to conduct search beyond the body’s surface).
¶ 67 Schmerber and cases like it stand for a critical point: probable cause to arrest a person for a crime by itself does not diminish a person’s reasonable expectation of privacy. And similarly, a judicial finding of probable cause to hold a juvenile to answer for a criminal offense does not do so either. As explained by the court in In the Matter of the Welfare of C.T.L., 722 N.W.2d 484, 490-91 (Minn.Ct.App.2006):
But, just as in Schmerber, where the existence of probable cause to arrest the defendant was not sufficient to permit an *225intrusion into his body without a warrant, a determination of probable cause to support a criminal charge, even if it is made by a judge, is not sufficient to permit a biological specimen to be taken from the person charged without a warrant. The fact that a judge has determined that the evidence in a ease brings a charge against the defendant within reasonable probability does not mean that the judge has also determined that there is a fair probability that contraband or evidence of a crime will be found in a biological specimen taken from the defendant.
¶ 68 Further, the routine restrictions identified by the lead opinion are wholly different in scope to the additional invasion of privacy that happens after the DNA sample is tested and analyzed and a profile is extracted for inclusion and use in the Arizona DNA Database and in the NDIS.
The search in question, however, constitutes far more of an intrusion than the mere insertion of a needle into an individual’s body and the consequent extraction of the blood sample. In prior eases dealing with the level of intrusion authorized by the taking of blood samples, courts did not confront a regime in which the samples were turned into profiles capable of being searched time and time again throughout the course of an individual’s life____ The startling advance of technology has magnified the power of the initial search ... such that the invasion of privacy is vastly more significant tha[n] we might have previously assumed.
Kincade, 379 F.3d at 867 (Reinhardt, J., dissenting). See also United States v. Mitchell, 652 F.3d 387, 407 (3d Cir.2011) (collection of DNA is first search; second search is processing of the DNA sample and creation of DNA profile for inclusion in national database); United States v. Amerson, 483 F.3d 73, 85 (2d Cir.2007) (“second and potentially much more serious invasion of privacy” caused by analysis and maintenance of profile information in federal DNA database); People v. Buza, 129 Cal.Rptr.3d 753, 760 (Cal.Ct.App.2011) (collection of DNA sample is only the first part of the search; second part occurs when the DNA sample is analyzed and profile created for use in state and federal DNA databases).
¶ 69 DNA sampling is also not analogous to fingerprinting and DNA sampling presents a level of intrusiveness not presented by fingerprinting.
¶ 70 A fingerprint is an impression “left by the depositing of oil upon contact between a surface and the fission ridges of fingers.” United States v. Mitchell, 365 F.3d 215, 221 (3d Cir.2004). A fingerprint only identifies the person who left it. United States v. Mitchell, 681 F.Supp.2d 597, 608 (W.D.Pa. 2009), rev’d 652 F.3d 387 (3d Cir.2011). Although DNA, like fingerprinting, can be used to identify a person, that is where the comparison ends. A DNA sample contains personal information that goes far beyond a fingerprint. Unlike a fingerprint, “DNA stores and reveals massive amounts of personal, private data about that individual” and “unlike DNA, a fingerprint says nothing about the person’s health, propensity for particular disease, race and gender characteristics, and perhaps even propensity for certain conduct.” Kincade, 379 F.3d at 842 n. 3 (Gould, J., concurring).
¶ 71 Fingerprinting as a routine booking practice came before modern Fourth Amendment “reasonable expectation of privacy” jurisprudence. Police fingerprinted and obtained other identifying information, such as mug shots, from arrestees free from Fourth Amendment concerns because law enforcement needed to confirm the “true identity” of the individual. David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455, 485-88 (2001). See generally United States v. Kelly, 55 F.2d 67, 69 (2d Cir.1932):
Finger printing seems to be no more than an extension of methods of identification long used in dealing with persons under arrest---- and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.
¶ 72 That today we accept fingerprinting as a routine practice without Fourth Amendment implications does not mean we must *226accept DNA sampling as being the same. Practices from the 20th Century should not govern privacy expectations in the 21st Century. As noted by one court, “the fact that fingerprinting became routine without being subjected to analysis under the Fourth Amendment is no reason to use it as the basis of a conclusion that DNA testing survives that analysis.” Buza, 129 Cal.Rptr.3d at 770.
¶ 73 Finally, the view that the DNA sampling required by A.R.S. § 8-248 is analogous to fingerprinting because it is just another, more accurate way to ascertain a juvenile’s identity ignores what is really going on here. The real purpose of collecting arrestee DNA and generating a DNA profile is not to identify the arrestee in the sense of confirming his or her identity. Rather, the real purpose is to use the DNA sample and the resulting profile in the investigation of other offenses — past and future. The statutory scheme implemented by AR.S. § 13-610 — which the majority apparently believes applied to the juveniles’ DNA samples — reflects this. A juvenile can request expungement of his or her DNA sample from the Arizona DNA Database if criminal charges are not filed within the required statutory period, if the charges are dismissed, or if the juvenile is acquitted at trial. See A.R.S. § 13-610(M). If the pui’pose of DNA sampling was to establish identity, there would be no need to expunge those records. After all, according to the majority, an arrestee has next to no privacy interest in his or her identity. Further, as a practical matter, DNA sampling upon arrest is not a very efficient way to establish identity. The DNA must be analyzed and a profile must be created. Yet, in fiscal year 2010, only 71% of Arizona’s arrestee DNA samples were profiled. See 2010-2012 Arizona Department of Public Safety Strategic Plan at 24 (available at www.azdps.gov/abouV reports/does/strategic_plan_2010_2012.pdf) (last visited Oct. 24, 2011).13
¶ 74 Accordingly, I disagree with the majority’s conclusion the juveniles have a diminished expectation of privacy in their DNA merely because they were arrested and the juvenile court found probable cause to hold them for trial.14
¶ 75 That then brings me to the State’s interests in obtaining the DNA samples. According to the State, its interests outweigh the privacy rights of the juveniles because it can use the DNA samples to access databases that, in turn, would help it determine, first, the juveniles’ identities, and second, their involvement in past and future criminal activities.
¶ 76 As to the first point, the State has raised no issue about the identity of the juveniles, and more telling, has presented no facts it has experienced significant difficulties — or indeed any difficulties — in determining the identity of arrested juveniles without resort to these databases. Further, the State’s assertion a DNA sample taken on arrest can be used to ascertain the identity of the arrestee — a point the majority accepts— is not even necessarily true, as discussed above. See supra ¶ 73. Further, by itself, DNA provides no identifying information; a DNA sample is only useful when it can be compared to a prior DNA sample obtained from the same person. If the arrestee’s DNA is not in a DNA database, there can be no comparison and thus no verification of identity.
¶77 And, as to the second point, the State’s interest in investigating criminal offenses rests on “the assumption [that a person arrested and accused of a crime is] more likely to commit crimes than other members of the public, without an individualized determination to that effect.” United States v. *227Scott, 450 F.3d 863, 874 (9th Cir.2006). That assumption
is eonti’adieted by the presumption of innocence: That an individual is charged with a crime cannot, as a constitutional matter, give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody. [Such a person] is, after all, constitutionally presumed to be innocent pending trial, and innocence can only raise an inference of innocence, not of guilt.
Id.
¶ 78 To be sure, I recognize there may well be situations when the State’s interests will outweigh an arrestee’s privacy interests to his or her DNA. Cf. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1984) (visual inspection of body cavities for contraband without warrant reasonable under Fourth Amendment; “detention facility is a unique place fraught with serious security danger”). But, the State has failed to make that showing here.
¶ 79 In arguing its interests outweigh the interests of the juveniles in their own DNA, the State argues, and the majority agrees, DNA sampling either through a buccal swab or blood draw is a minimally invasive procedure. But, the hard Fourth Amendment issue here is not how the State obtains the DNA sample but whether the State is entitled to have the magnitude of the personal information it reveals without a warrant.
¶ 80 Now, to be fair, several of the cases relied on by the majority point out that although DNA samples contain a vast array of personal information, the resulting DNA profiles are created from what is essentially a subset of the sample known as “non-coding” or “junk DNA” which is not generally recognized as being responsible for trait coding. See, e.g., Kincade, 379 F.3d at 818.15 According to these and other eases, because only “junk DNA” is used to create the DNA profile, no meaningful personal genetic information ends up in a DNA database, and thus, the severity of the intrusion into the privacy of the person giving the sample is minimal. Id. at 838 (“As currently structured and implemented ... the [federal DNA testing statute requiring] compulsory profiling of qualified federal offenders can only be described as minimally invasive — both in terms of the bodily intrusion it occasions, and the information it lawfully produces.”). This reasoning, however, ignores the extent of the search that has taken place:
[T]he Government has taken, searched, and retained rich, privacy-laden DNA in the sample. The majority’s focus on the Government’s use of that DNA as the controlling privacy consideration is simply misguided. It is akin to saying that if the Government seizes personal medical information about you but can only use a subset of that information that serves to identify you, your privacy interest in the information taken is confined to a mere interest in your identity. Nothing could be further from the truth, and the majority engages in sleight of hand by suggesting otherwise.
Mitchell, 652 F.3d at 424 (Rendell, J., dissenting).16
¶ 81 Finally, in my view, the majority’s approach to the Fourth Amendment will “contribute to the downward ratchet of privacy expectations” and lead to the erosion of Fourth Amendment protections. Scott, 450 F.3d at 867. As Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals has written:
Not only do [Fourth Amendment opinions] reflect today’s values by giving effect to *228people’s reasonable expectations of privacy, they also shape future values by changing our experience and altering what we come to expect from our government. A highly expansive opinion [authorizing a warrantless search], one that draws no hard lines and revels in the boon that new technology will provide to law enforcement, is an engraved invitation to future expansion. And when that inevitable expansion comes, we will look to the regime we approved today as the new baseline and say, this too must be OK because it’s just one small step beyond the last thing we approved.
Kincade, 379 F.3d at 873 (dissenting opinion).
¶ 82 For the foregoing reasons, I therefore disagree with both the lead and concurring opinions that the State’s seizure of the DNA samples from the five juveniles is constitutional under the Fourth Amendment and would grant the relief they have requested. I concur in the result but not the analysis of the lead opinion as to the two juveniles and join the lead opinion in setting aside the juvenile court orders requiring them to submit DNA samples under AR.S. § 8-238.
. The Fourth Amendment states:
[t]he 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.
Similarly, the Arizona Constitution, Article 2, Section 8, states "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” These constitutional provisions are central to our freedoms. Both serve the same fundamental purpose: to safeguard the privacy and security of individuals against arbitrary invasion by governmental officials. See generally Camara v. Mun. Court of City and Cnty. of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967) (basic purpose of Fourth Amendment is "to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials”); State v. Baldwin, 184 Ariz. 267, 273, 908 P.2d 483, 489 (App.1995) ("Article II, § 8 not only establishes a constraint on intrusive governmental action; it also declares an element of personal freedom and autonomy that the state may legislate to protect.” (citation omitted)). Or, as the United States Supreme Court has also put it: the "Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).
. See Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, www.fbi.gov/about-us/tab/codis/codis- and-ndis-fact-sheet (last visited Oct. 24, 2011). The national database is called "CODIS,” which is an acronym for "Combined DNA Index System” and is the generic term used by the Federal Bureau of Investigation to describe its program for supporting DNA databases and the software for running the databases.
. In comparison, the Arizona Automated Fingerprint Identification System "enables a fingerprint to be compared with millions of file prints within a matter of seconds.” See Automated Fingerprint Identification System — AFIS and Site Overview, www.azafis.gov/about (last visited Oct. 24, 2011).
. The majority relies on cases from other jurisdictions that have upheld mandatory DNA sampling from people who have been merely arrested and bound over for trial. See supra V 22 (lead opinion). Those cases reach this result by comparing fingerprinting to DNA sampling and finding no meaningful distinction. As discussed above, I disagree.
. Not everyone agrees junk DNA is, in fact, junk. See, e.g., Simon A. Cole, Is the “Junk" DNA Designation Bunk?, 102 Nw. U.L. Rev. Colloquy 54 (2007); but see David H. Kaye, Please, Let’s Bury the Junk: The Codis Loci and the Revelation of Private Information, 102 Nw. U.L. Rev. Colloquy 70 (2007).
. The majority notes the statutory scheme set out in A.R.S. § 13-610 also imposes various restrictions that would prevent the misuse of the DNA samples. The existence of these limitations does not solve the Fourth Amendment violation presented by the DNA sampling of the juveniles’ DNA. "[Wjhere in our jurisprudence have we held that post-collection safeguards on the use of seized material can immunize an otherwise impermissible search? ... The majority’s emphasis on use to define — in fact, to cabin — the nature of the interest is not supportable in law or logic.” Mitchell, 652 F.3d at 424 (Rendell, J., dissenting).