People v. Peppers, No. 1-03-2543.

• Court: United States Appellate Court of Illinois
• Citation: 352 Ill. App.3d 1002,288 Ill.Dec. 502,817 N.E.2d 1152
• Decision Date: 30 September 2004
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie PEPPERS, Defendant-Appellant.
• Docket Number: No. 1-03-2543.

817 N.E.2d 1152
352 Ill. App.3d 1002
288 Ill.Dec. 502

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Willie PEPPERS, Defendant-Appellant

No. 1-03-2543.

Appellate Court of Illinois, First District, Second Division.

September 30, 2004.

817 N.E.2d 1154

Michael J. Pelletier, Deputy Defender, and Maya Szilak, Assistant Appellate Defender, Chicago, for Appellant

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Margaret J. Campos, and Michelle L. Feola, of counsel), for Appellee.

Justice WOLFSON delivered the opinion of the court:

This garden variety drug case raises a Fourth Amendment question that has commanded the attention of federal and state courts across the nation. The same answer keeps coming up — the government can require a convicted felon to undergo a blood or saliva test for submission to state and national DNA databanks without individualized suspicion that the felon has committed some other crime. That is our answer in this case.

Following a bench trial, defendant Willie Peppers was convicted of possession of a stolen motor vehicle and possession of a controlled substance. The trial court sentenced defendant to five years' imprisonment for possession of a stolen vehicle and a concurrent two-year term for possession of a controlled substance. We affirm.

FACTS

At trial, Officer Jesse Farmer testified that at 11:30 p.m. on September 19, 2002, he and his partner responded to a call at 534 West Division Street in Chicago. As they were leaving, they observed a car entering the parking lot without its headlights lit. Officer Farmer checked the license plates of the car and learned it was stolen. When the officers approached the car, Farmer noticed defendant was the driver. He arrested defendant and performed a custodial search. Farmer found a clear plastic bag in defendant's front pocket containing 24 foil packets of white powder suspected to be heroin. Defendant told police he was renting the car from someone. Later, defendant said he believed "it was probably stolen."

Officer Farmer testified he maintained custody of the suspected narcotics until he inventoried them under number 10031590.

The parties stipulated to the following:

"* * * the 24 packets recovered from the defendant and inventoried under Inventory No. 10031590, that the chain of custody on that item was preserved at all times and it was properly sealed and inventoried; that it was sent to the Illinois State Police Crime Lab where it was received by Arthur Wethers.

It would be stipulated that Mr. Wethers if called to testify would be qualified by this Court as an expert in the forensic science of testing for the presence of

817 N.E.2d 1155

controlled substances. Mr. Wethers would tell your Honor that he received that inventoried item in a sealed condition; and that he opened it and found it to be 24 packets, that he opened and weighed and tested these packets; and that his conclusion was that the powdery substance was 1.06 grams of heroin."

When the trial judge asked, "That is within a reasonable degree of scientific certainty?", the parties stipulated it was. After the stipulation was entered, both parties rested.

The trial court convicted defendant on both counts, sentencing him to five years' imprisonment on possession of a stolen motor vehicle and a concurrent two-year term for possession of a controlled substance.

Defendant contends: (1) the trial court's order, pursuant to section 5-4-3 of the Unified Code of Corrections, compelling defendant to provide a blood sample for DNA identification databases, violated defendant's Fourth Amendment rights; (2) the State failed to prove him guilty beyond a reasonable doubt because the State failed to offer a proper foundation for the stipulated expert opinion that the seized items were heroin; and (3) the trial court erroneously determined defendant was ineligible for TASC (Treatment Alternatives for Safe Communities) probation based on his prior felony convictions.

DECISION

I. Constitutionality of Section 5-4-3 of the Unified Code of Corrections

In the last fifteen years, state governments began to enact DNA collection statutes. All fifty states and the federal government (see 42 U.S.C. § 14131-34) have some type of DNA collection statute that requires some or all convicted felons to submit a tissue sample — blood, saliva, or other — for DNA profile analysis and storage in the DNA databank. See Maryland v. Raines, 383 Md. 1, 857 A.2d 19, 23, 2004 Md. LEXIS 504, at * 9 (2004).

In this case, after defendant was convicted and sentenced to prison, the trial court, as it was required to do, ordered him to give a blood sample for the state and national DNA databases pursuant to section 5-4-3 of the Unified Code of Corrections (the Code) (730 ILCS 5/5-4-3 (West 2002)). Defendant contends the order is an unreasonable search and seizure under the Fourth Amendment of the United States Constitution (U.S. Const., amend.IV). Because the parties agree on the facts, we apply a de novo standard of review.

Defendant is faced with a tidal wave of authority against his position. Every court of review that has decided the issue has upheld the DNA testing statute.¹ There has been a plethora of reported decisions, as cited in Green v. Berge, 354 F.3d 675, 679 (7th Cir.2004), and People v. Garvin, 349 Ill.App.3d 845, 854, 285 Ill.Dec. 953, 812 N.E.2d 773 (2004).

While reviewing courts agree on the result, they do not agree on how to get there. There are two essential routes, each tested by the proposition that convicted felons, whether incarcerated, on parole, or on probation, have at least some expectation of privacy, albeit diminished. See United States v. Knights, 534 U.S. 112, 119-20, 122 S.Ct. 587, 592, 151 L.Ed.2d 497, 505 (2001); People v. Lampitok, 207 Ill.2d 231, 250-51, 278 Ill.Dec. 244, 798 N.E.2d 91 (2003).

817 N.E.2d 1156

Thus far, neither the United States Supreme Court nor the supreme court of this state has flatly decided whether being on probation completely eliminates a convicted felon's reasonable expectation of privacy. In Knights, the Supreme Court expressly declined to decide the issue. Knights, 534 U.S. at 118, 122 S.Ct. at 591, 151 L.Ed.2d at 505. In Lampitok, our supreme court said, in dicta, "[W]e conclude that this comparison [with Knights] lends support to the assertion that a probation search of [the probationer] upon no individualized suspicion would be constitutionally unreasonable." Lampitok, 207 Ill.2d at 252, 278 Ill.Dec. 244, 798 N.E.2d 91

What, if anything, these decisions portend for the validity of mandatory DNA testing statutes is unclear.

A further consideration is the well-established principle that the taking of blood by the state is an invasion of constitutionally protected privacy rights. Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908, 918 (1966). If the seizure is to withstand constitutional scrutiny, there must be a sufficient state interest that outweighs the convicted felon's expectation of privacy. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979).

There are two basic approaches — "special needs" and a balancing of state interest against any expectation of privacy.

The "special needs" test, relied on by the defendant, is derived from two decisions of the United States Supreme Court. In City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), the Supreme Court struck down an Indianapolis vehicle checkpoint policy on Fourth Amendment grounds. The Court said, "We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes." Edmond, 531 U.S. at 44, 121 S.Ct. at 455, 148 L.Ed.2d at 345. Later, in Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004), the Supreme Court recognized the constitutional validity of a checkpoint program whose primary law enforcement purpose was not to unearth incriminating evidence from those who were stopped, but to ask assistance from the public to solve a specific crime.

The second decision relied on by the defendant is Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), where the Supreme Court overturned non-consensual urine drug tests performed by hospitals on pregnant women who met certain criteria. The immediate purpose of the testing was to arrest and prosecute tested women for narcotics violations. The Court held the testing did not fit any "special need" of law enforcement personnel. Ferguson, 532 U.S. at 82-83, 121 S.Ct. at 1291, 149 L.Ed.2d at 219-20. The Court observed these women did not have the diminished expectation of privacy held by probationers or people in jail. Ferguson, 532 U.S. at 79 n. 15, 121 S.Ct. at 1290 n. 15, 149 L.Ed.2d at 218 n. 15. Because of the lack of a special need, no balancing of the competing interests at stake was required.

In Garvin, 349 Ill.App.3d 845, 285 Ill.Dec. 953, 812 N.E.2d 773, the Second District of our appellate court joined those reviewing courts that have adopted the balancing test. Upholding the validity of the statute we examine in this case, Garvin rejected the special needs approach in favor of the balancing test. That is, the court weighed the State's interest in the search and seizure against the individual's reduced expectation of privacy and the

817 N.E.2d 1157

non-intrusive nature of the search. Blood testing is a relatively slight intrusion, said the court, while "it is beyond dispute that the State has a strong interest in deterring and prosecuting recidivist criminal acts." Garvin, 349 Ill.App.3d at 855, 285 Ill.Dec. 953, 812 N.E.2d 773

A court in this district has agreed with Garvin, holding the balancing test was the better way to uphold section 5-4-3. People v. Hall, 352 Ill.App.3d 537 7, 545-46, 287 Ill.Dec. 736, 816 N.E.2d 703 (2004). Ha...