AZ: DNA may not be taken from an arrestee without a judicial finding of probable cause

In a juvenile action over the taking of DNA on arrest, only those with a finding of probable cause by a judicial officer that an offense occurred may have DNA taken. Mario W. v. Kaipio, 265 P.3d 389 (Ariz. App. 2011):

P18 Using a buccal swab to procure a DNA sample, like blood drawn for the same purpose, constitutes a search under the Fourth Amendment. Maricopa County Juvenile Action Nos. JV-512600 and JV-512797, 187 Ariz. 419, 423, 930 P.2d 496, 500 (App. 1997) (recognizing that “a compelled intrusion[] into the body for blood” is deemed a Fourth Amendment search (quoting Schmerber v. State of California, 384 U.S. 757, 767-68, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)) ); see also State v. Garcia-Salgado, 170 Wn.2d 176, 240 P.3d 153, 157 (Wash. 2010) (finding that a cheek swab, taken for the purposes of collecting DNA, constitutes a search under the Fourth Amendment). In general, a search is considered unreasonable unless it is accompanied by a judicial warrant issued following a finding of probable cause. JV-512600 and JV-512797, 187 Ariz. at 423, 930 P.2d at 500.

P19 The totality of the circumstances test is used to balance the juveniles’s individual rights against the State’s interest in conducting the DNA search. See United States v. Mitchell, 652 F.3d 387, 390, 399, 403-04 (3d Cir. 2011) (applying the totality of the circumstances test to balance the government’s rights to conduct a DNA search of an arrestee and pretrial detainee under the federal DNA Act, 42 U.S.C. § 14135a(a) (2006)); United States v. Conley, 453 F.3d 674, 680 (6th Cir. 2006) (utilizing a totality of circumstances analysis and finding the taking of a DNA sample from a convicted felon to be constitutional due to the convicted felon’s “sharply reduced expectation of privacy, and the minimal intrusion required in taking a blood sample for DNA analysis for identification purposes only”); see also Samson v. California, 547 U.S. 843, 846, 848, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006) (applying the totality of circumstances test and finding a state law that required parolees to agree to be subject to a search or seizure by a parole officer at any time, with or without cause, to be constitutional); United States v. Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001) (finding a warrantless search of a probationer’s apartment to be constitutional under the Fourth Amendment after examining the totality of circumstances). My colleagues on this panel agree that the totality of the circumstances test is applicable.

P20 We analyze various factors to evaluate the balance of the juveniles’s rights against the governmental interest in this case. Such factors include: whether there was a judicial finding of probable cause that the juvenile committed the charged offense, the level of intrusion in relation to other pre-adjudicative procedures, the degree and nature of physical intrusion required by the test, statutes restricting use of test results, and any evidence in the record regarding improper uses of the results.

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P22 A judicial finding of probable cause serves as a “watershed event” that distinguishes such a defendant from the general public and permits application of the totality of circumstances exception to the warrant requirement of the Fourth Amendment. In this regard, I agree with the reasoning of the United States Magistrate Judge in United States v. Pool, 645 F. Supp. 2d 903 (E.D. Cal. 2009): …