ME: Reduced privacy interest of a parolee justified taking DNA after conviction, adopting totality test rather than special needs

Maine departs from the majority on DNA testing of convicts and adopts the totality of the circumstances standard rather than special needs exception. The case involved a cold case hit off DNA taken from a parolee after a prior conviction. State v. Hutchinson, 2009 ME 44, 969 A.2d 923 (2009):

[*P25] The extent of the physical intrusion on individual privacy authorized by the DNA Data Act is minor. Obtaining a DNA sample through a cheek swab is no more intrusive than taking a fingerprint. Moreover, the impairment of privacy rights by the State’s use of the analysis of the DNA sample is mitigated by safeguards, contained in the DNA Data Act, that minimize the risk that personally identifiable information can be inappropriately mined or released. In addition, the DNA Data Act protects against the State’s retention of the DNA profiles of persons who are ultimately determined to have been wrongfully convicted.

[*P26] In sum, at the time the State conducted its suspicionless and warrantless search of Hutchinson in 2003, his privacy interests were at their nadir. There is little if anything to suggest that society would expect that Hutchinson should have been afforded privacy protections upon his conviction and incarceration against physically unobtrusive searches of his body for personally identifying characteristics such as his fingerprints and DNA. See Martin, 955 A.2d at 1157 (“The data retained in the [DNA] data base serve only to prove identity, like a fingerprint. The information in the data base, then, is not information defendants can reasonably expect to keep private as convicted felons.” (citation omitted))

. . .

[*P28] There is a strong correlation between offenders who are convicted of serious crimes and the cohort of persons who are most likely to commit new crimes. This is certainly true with respect to offenders who, like Hutchinson, are placed on probation and reportedly have a felony recidivism rate in excess of 40%. See Knights, 534 U.S. at 120 (noting a U.S. government report found “that 43% of 79,000 felons placed on probation in 17 States were rearrested for a felony within three years while still on probation”). Further, “it must be remembered that the very assumption of the institution of probation is that the probationer is more likely than the ordinary citizen to violate the law.” Id. (quotation marks omitted).