In a comprehensive opinion, the Vermont Supreme Court held Friday that pre-conviction DNA testing of arrestees after arraignment violates the search provision of the Vermont Constitution. It failed every point of analysis. State v. Medina, 2014 VT 69, 2014 Vt. LEXIS 71 (July 11, 2014):
¶ 57. Next, we turn to defining the privacy interest to be weighed in the balancing test. The privacy interest of the preconviction defendant is greater than the interest of one who has been convicted because a preconviction defendant has a presumption of innocence. 13 V.S.A. § 6502; see State v. Camley, 140 Vt. 483, 488, 438 A.2d 1131, 1133-34 (1981) (explaining operation of 13 V.S.A. § 6502 at trial); see also Coffin v. United States, 156 U.S. 432, 453 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”). Indeed, a substantial percentage of persons from whom DNA samples will be taken will never be convicted of a qualifying offense. The judicial finding of probable cause at arraignment is no substitute for a criminal conviction-the watershed moment that strips a defendant of the presumption of innocence and related privacy protections. In saying this, we do recognize that pretrial arraignees have a legitimate expectation of privacy that is less than the population as a whole. The lesser expectation may result in temporary incarceration or conditions of release that result in limitations on privacy.
¶ 58. The restrictions we place on the liberties of pretrial defendants, however-through pretrial detention, bail, or conditions of release-while at times substantial, are all tailored to ensure the State’s need for the defendant’s presence in court and the State’s need to reduce immediate risks to public safety. E.g., State v. Roessell, 132 Vt. 634, 636, 328 A.2d 118, 119 (1974) (per curiam) (“[W]here there is sufficient evidence to demonstrate a substantial risk that a defendant will not show up for trial, conditions, monetary or otherwise, to insure his return are indicated[] and … where there is a danger to the public, conditions for the protection of public safety are appropriate.”); see also State v. Webb, 132 Vt. 418, 422, 320 A.2d 626, 629 (1974) (“The imposition of physically restrictive conditions of release pending trial upon a defendant whose release has been determined to constitute a danger to the public weighs heavily against the presumption of innocence.”).
C.
¶ 59. This brings us to a balancing of the interests of the defendant and the State. In doing so, we start with the generalization, adopted by the U.S. Supreme Court in King and the dissent in this case, that the interests are the same for DNA collection as for fingerprinting and, if anything, the State’s interest in DNA is greater than for fingerprinting because of DNA’s greater utility. Putting aside that one involves a bodily invasion and the other does not, we do not now believe we can equate fingerprinting and DNA retrieval. Fingerprints can show only identification, and they have limited functionality in solving old cases. DNA samples provide a major new tool for investigation of open and future crime cases, as well as correcting wrongful convictions in closed cases. It is also important to note that the DNA samples being seized provide a massive amount of unique, private information about a person that goes beyond identification of that person. See Martin, 2008 VT 53, ¶ 24. Martin framed the DNA sampling scheme in terms of two searches: “[1] the initial taking of the DNA sample, and [2] the subsequent analysis, storage, and searching of the DNA profile.” Id. ¶ 14 (emphasis added). Martin is silent on the storage of the sample, which is retained by the State, apparently indefinitely. Even after the identification profile is created from the DNA sample and is made part of the national database, the State retains the DNA sample. Neither the statutory purposes, nor the State’s asserted justifications for the law, provide any rationale for retaining the DNA sample once the profile has been created. While current law limits use of the sample, that law can be amended to allow greater use; the retention of the DNA sample suggests that expanded use is possible in the future. We assume for purposes of this opinion that restrictions on use will be enforced, but the current restrictions are only a partial answer to the extent of the invasion of privacy as long as the State continues to hold the DNA samples. Contrary to the dissent, we read defendants’ arguments as raising this feature of the statute as a factor weighing in the balancing test.
¶ 60. The point of the comparison is that DNA collection and use under the statute is a significantly greater invasion of the defendant’s privacy than that involved in fingerprinting, even if the DNA samples were expunged in all circumstances after the DNA profile is taken. We do not accept the widespread use of pretrial fingerprinting of defendants as deciding this case.
¶ 61. From the foregoing analysis, the main weight of the State’s interest involves cases where the defendant is not convicted of a qualifying crime and the State never has the opportunity to gather a DNA sample. In these cases, however, the defendant’s privacy interest is the greatest. The Legislature recognized that interest by providing for expungement of DNA samples where the criminal case has ended without conviction for a qualifying crime. The State has an interest in identifying defendants in its custody, as King held, but that interest is of little weight here. Traditional methods have identified defendants in the cases involved here, and many are not incarcerated in any event.
¶ 62. Because of the limited weight of the State’s interest in the expansion of the DNA sampling requirement to defendants on arraignment for a qualifying crime, and the greater privacy interest of the defendant at that stage of the adjudication, we-like the Minnesota Court of Appeals in Welfare of C.T.L.-conclude that the balance tips to the defendant. We also concur in the analysis of the Arizona Supreme Court that “[h]aving a DNA profile before adjudication may conceivably speed … investigations [of other crimes]. … But one accused of a crime, although having diminished expectations of privacy in some respects, does not forfeit [constitutional] protections with respect to other offenses not charged absent either probable cause or reasonable suspicion.” Mario W., 281 P.3d at 483.
¶ 63. The marginal weight of the State’s interest in DNA collection at the point of arraignment, balanced against the weight of the privacy interest retained by arraignees prior to conviction, persuades us to hold that 20 V.S.A. § 1933(a)(2), and associated sections, which expand the DNA-sample requirement to defendants charged with qualifying crimes for which probable cause is found, violates Chapter I, Article 11 of the Vermont Constitution.
