detection or exclusion of individuals who are subjects of the investigation or prose- cution of violent crimes”—which, in their view, demonstrated that the primary pur- pose of the statute was merely “normal law enforcement” to which probable cause and warrant requirements should undoubt- edly apply.38


In a closely divided three to


two decision, the Court concluded that the state had proffered a valid special need, and, upon application of the balancing test, upheld the DNA sampling system as constitutional.39


As to the existence of law enforcement “special needs,” the Court wholly em- braced the rationale provided by the state and its four needs delineated above. Citing a litany of cases from the Supreme Court and the Second Circuit, the Court opted for a “more nuanced approach” to such ques- tions.40


Under this approach, using “DNA sampling and analysis to assist in identi- fying persons at future crime scenes is a special need beyond normal law enforce- ment.”41


Service of this “long-range special


need” falls outside of the ordinary needs of law enforcement, and thus falls within the exception.42


Further, the statute would


advance the goal of deterring criminal ac- tivity because, according to the Court, it is “plain that at least some deterrent effect will accrue if felons know that their DNA has been sampled and indexed and might someday be detected at a crime scene if they reoffend.”43


In other words, felons will


decline to commit new crimes when they know their DNA is on file.


On this basis, the Court’s analysis “assume[d]” that buccal swabs would be the preferred method of taking samples.45 In response, the defendants maintained


Having found the existence of “special needs” supporting the DNA sampling pro- cess, the Court turned to the balancing of these needs against the privacy interests of individuals subject to search. Any concern over the intrusion of privacy from the initial sampling was, according to the Court, miti- gated by the fact that the law mandated that the least intrusive available means be used to take the sample, typically a buccal swab.44


that the state encroaches on protected pri- vacy interests not only during the initial tak- ing of the DNA, but also upon the subse- quent searches once the sample is plugged into the database.46


According to the de-


fendants, the genetic profile yielded by this analysis results in a far greater intrusion than the initial swab. The defendants as- serted that their interests in “keeping pri- vate the ‘personal genetic traits’ revealed by DNA analysis” greatly outweighed the state’s interests.47 The Court rejected this argument for two primary reasons. First, the Court found that all of the alleged information stored in the DNA reveals very little about the individ-


20 THE VERMONT BAR JOURNAL • WINTER 2013


ual other than their identity.48


The Court


compared the taking of a DNA sample to fingerprinting, a practice the government commonly employs for identification pur- poses.49


The Court hewed closely to the


restrictions of the statute, which permits analysis of samples only for narrow pur- poses that “reveal nothing more than mere identity.”50


Any wrongful disclosure or dis-


criminatory misuse of DNA-based informa- tion would be contrary to the law as writ- ten, and the Court assumed “that the De- partment of Corrections w[ould] comply with the limitations in the regulation.”51 Stripped of any potential for abuse, the statute relates only to identification of con- victed felons, a matter amply allowed by constitutional considerations.52


Relatedly,


the Court also recognized that convicted felons, the only category of individuals to whom the 2005 amendment applied, have a lowered expectation of privacy than the general population.53


The Challenges in the Trial Courts


Having delved into the history of fed- eral and state legislation, as well as the court challenge to the previous version of the statute, let us refocus on the current case before the Vermont Supreme Court. Passed in the wake of the horrific murder of twelve year-old Brooke Bennett, amend- ments to the DNA sampling regime ap- proved in 2009 and in effect since July 1, 2011, now require all individuals charged with a felony to surrender a sample of their DNA to the government.54


Specifically, the


legislation calls for DNA sampling of “[a] person for whom the court has determined at arraignment there is probable cause that the person has committed a felony in this state on or after July 1, 2011.”55


Thereafter,


the sample is sent to the state and feder- al databases, but if the individual is acquit- ted or the charges are reduced to a misde- meanor (or dropped altogether), the DNA sample is expunged from the databases and destroyed, “unless the attorney for the state can show good cause why the sample should not be destroyed.”56 In constitutional challenges to the recent amendment, the arguments have been largely parroted those made in Martin. Unlike in Martin, however, the trial courts have each ruled the statute unconstitution- al.57


As such,


All the trial courts are in agreement that the initial taking and subsequent cat- aloguing of the DNA are, as the Vermont Supreme Court held in Martin, searches for the purposes of Article 11.58


the government must proffer a valid spe- cial need to avoid the warrant and prob- able cause requirements. In addition, the statute must satisfy the special needs bal- ancing test, such that the magnitude of the need for the search outweighs the ex-


www.vtbar.org


A Bridge Too Far: The Upcoming Mandatory DNA Sampling of Arrestees


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