People v. Wealer, 2-93-0034

• Decision Date: 29 June 1994
• Docket Number: No. 2-93-0034,2-93-0034
• Parties: , 201 Ill.Dec. 697, 63 USLW 2118 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence WEALER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1129

636 N.E.2d 1129 264 Ill.App.3d 6, 201 Ill.Dec. 697,
63 USLW 2118 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Clarence WEALER, Defendant-Appellant. No. 2-93-0034. Appellate Court of Illinois,
Second District. June 29, 1994.

Page 1130

[264 Ill.App.3d 7] [201 Ill.Dec. 698] G. Joseph Weller, Deputy Defender, Office of the State Appellate Defender, Elgin, Thomas A. Lilien, Asst. Defender, Office of State Appellate Defender, Elgin, for Clarence Wealer.

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, State's Atty. Appellate Prosecutor, Mary Beth Burns (argued), State's Atty. Appellate Prosecutor, Elgin, for People.

Justice DOYLE delivered the opinion of the court:

Defendant, Clarence Wealer, entered a negotiated plea of guilty to the charge of aggravated criminal sexual abuse (Ill.Rev.Stat.1991, ch. 38, par. 12-16(c)(1)(i) (now 720 ILCS 5/12-16(c)(1)(i) (West 1992))) in the circuit court of Lake County and was sentenced to 8 1/2 years' imprisonment. Following sentencing, the State moved for an order to obtain blood and saliva samples from defendant pursuant to section 5-4-3(c) of the Unified Code of Corrections (Ill.Rev.Stat.1991, ch. 38, par. 1005-4-3 (now codified, as amended, at 730 ILCS 5/5-4-3 (West 1992))). Defendant objected, contending that section 5-4-3 mandated the taking of blood and saliva samples in contravention of his right to be free from unreasonable searches and seizures under the fourth amendment to the United States Constitution and article I, section 6, of the 1970 Illinois Constitution. (U.S. Const. amend. IV; Ill. Const.1970, art. I, § 6.) The trial court granted the State's motion, denied defendant's motion to reconsider, and granted defendant a temporary stay of enforcement pending his application to this court for a stay pending appeal. Defendant filed a timely notice of appeal, and this court granted defendant's motion to stay the order for blood and saliva samples pending the outcome of his appeal.

In this case of first impression, we are asked to consider whether section 5-4-3 of the Unified Code of Corrections, which requires persons convicted of certain enumerated sex offenses to submit blood and saliva specimens to the Illinois Department of State Police for analysis and categorization into genetic marker groupings (commonly known as DNA testing), mandates State conduct violative of defendant's Federal and State constitutional rights to be free from unreasonable searches and seizures.

With recent advances in biotechnology, public officials have recognized with increasing

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[201 Ill.Dec. 699] frequency the value and potential of DNA testing in the context of criminal law enforcement. As a result, the Illinois legislature in 1989 amended the Uniform Code of Corrections to mandate that persons convicted of certain sex offenses submit [264 Ill.App.3d 8] blood and saliva specimens to the Illinois Department of State Police for analysis and categorization into genetic marker groupings. (See Ill.Rev.Stat.1991, ch. 38, par. 1005-4-3 (now codified, as amended, at 730 ILCS 5/5-4-3 (West 1992)).) Section 5-4-3 provides, in relevant part:

" § 5-4-3. (a) Any person convicted of, or who received a disposition of court supervision for, a sexual offense or attempt of a sexual offense * * * shall, regardless of the sentence imposed, be required to submit specimens of blood and saliva to the Illinois Department of State Police * * *.

* * * * * *

(d) The * * * State Police shall provide all equipment and instructions necessary for the collection of blood and saliva samples. * * * The samples shall * * * be forwarded to the * * * Division of Forensic Services and Identification[ ] for analysis and categorizing into genetic marker groupings.

* * * * * *

(g) * * * '[S]exual offense' means any violation of Sections 11-11, 12-13, 12-14, 12-15 or 12-16 of the Criminal Code of 1961 * * *." (Ill.Rev.Stat.1991, ch. 38, par. 1005-4-3 (now 730 ILCS 5/5-4-3 (West 1992)).)

The sexual offenses enumerated in section 5-4-3 are sexual relations within families (section 11-11); criminal sexual assault (section 12-13); aggravated criminal sexual assault (section 12-14); criminal sexual abuse (section 12-15); and aggravated criminal sexual abuse (section 12-16).

The statute provides further that blood samples may be taken only by a physician authorized to practice medicine, a registered nurse, or other person qualified by the Department of Public Health. (Ill.Rev.Stat.1991, ch. 38, par. 1005-4-3(d) (now 730 ILCS 5/5-4-3(d) (West 1992)).) Additionally, the genetic marker grouping analysis information is strictly confidential and generally can be released only to law enforcement and prosecutorial agencies. Ill.Rev.Stat.1991, ch. 38, par. 1005-4-3(f) (now 730 ILCS 5/5-4-3(f) (West 1992)).

We note that several other States have enacted similar statutes. (See Ariz.Rev.Stat.Ann. § 13-4438 (1993); Cal.Penal Code § 290.2 (West 1993); Colo.Rev.Stat.Ann. § 17-2-201 (West 1993); Ga.Code Ann. § 24-4-60 (1994); Mo.Ann.Stat. § 650.055 (Vernon 1992); Nev.Rev.Stat. § 176.111 (1993); N.C.Gen.Stat. § 15A-266.4 (Supp.1993); Okla.Stat.Ann. tit. 57, § 584 (West Supp.1993); S.D.Codified Laws Ann. § 23-5-14 (1994); Va.Code Ann. § 19.2-310.2 (Michie 1990); Wash.Rev.Code Ann. § 43.43.754 (West 1994).) As discussed [264 Ill.App.3d 9] below, two of those statutes have been unsuccessfully challenged on grounds similar to those urged before this court. See Jones v. Murray (4th Cir.1992), 962 F.2d 302 (Virginia); State v. Olivas (1993), 122 Wash.2d 73, 856 P.2d 1076.

Defendant contends that section 5-4-3 violates the fourth amendment to the United States Constitution because the blood and saliva sampling it mandates involves an unreasonable search and seizure. Relying primarily on Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (warrantless nonconsensual extraction of blood supported by probable cause that individual was intoxicated held to be lawful search incident to arrest), defendant maintains that section 5-4-3 allows the State to conduct a search and seizure on the "mere chance" that he might commit a crime in the future and that the stored data might provide evidence which might identify him. Accordingly, because probable cause or individualized suspicion would be lacking relative to some future offense, the statute violates defendant's right to be free from unreasonable searches and seizures.

The fourth amendment to the United States Constitution guarantees that "[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

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[201 Ill.Dec. 700] place to be searched, and the persons or things to be seized." (U.S. Const., amend. IV.) Its salutary purpose is to ensure "privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction." Skinner v. Ry. Labor Executives' Association (1989), 489 U.S. 602, 613-14, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639, 657.

As a threshold matter, we note that neither party disputes that the collection and testing of a blood sample from an individual pursuant to the statute at issue implicates the fourth amendment. (See Skinner, 489 U.S. at 616, 109 S.Ct. at 1413, 103 L.Ed.2d at 659 ("obvious that * * * physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable"); Schmerber, 384 U.S. at 767, 86 S.Ct. at 1834, 16 L.Ed.2d at 918 (administration of blood tests constitutes a search of the person and depends antecedently upon seizures of persons within the meaning of the fourth amendment).) Nor do the parties dispute that the taking of saliva samples implicates fourth amendment concerns, although it seems that the level of intrusion necessary to obtain a saliva sample would on its face appear lower than...