On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-346-04.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Parker and Grall.
This appeal is from a final order in a declaratory judgment action concerning the constitutionality of the DNA Database and Databank Act of 1994 (the Act), N.J.S.A. 53:1-20.17 to -20.28, as amended by L. 2003, c. 183, § 1. The Act establishes a databank and database consisting of biological samples and DNA profiles of certain offenders. N.J.S.A. 53:1-20.20 g, h; N.J.S.A. 53:1-20.21. Its purpose is to provide "an important tool in criminal investigations and in deterring and detecting recidivist acts." N.J.S.A. 53:1-20.18.
Plaintiffs, A.A., by his parent and guardian B.A., and Jamaal W. Allah became subject to the Act when it was amended, effective September 22, 2003, to require any person serving a sentence of supervision as a consequence of conviction or adjudication of delinquency based on conduct classified as a crime to submit a biological sample. N.J.S.A. 53:1-20.20g, h; see L. 2003, c. 118.*fn1 On that date, Allah was serving a sentence of incarceration as a result of two convictions for possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5, one for a crime of the second degree and one for a crime of the third degree. N.J.S.A. 2C:35-5b (2)-(3). On the same date, A.A. was on probation as a result of an adjudication of delinquency based upon conduct that would have constituted aggravated assault contrary to N.J.S.A. 2C:12- 1b(5)(a) if A.A. had been eighteen rather than fourteen years of age at the time of the assault.
On January 22, 2004, plaintiffs filed a complaint for injunctive and declaratory relief. They named as defendants the Attorney General, who is responsible for administering the Act through the Division of State Police (division), as well as the Department of Corrections and the Mercer County Probation Services, two of the entities that collect biological samples from offenders.*fn2 Plaintiffs alleged that the Act exceeds constitutional limitations on searches and ex post facto laws and deprives them of due process of law. U.S. Const. art. I, § 10, cl. 1; U.S. Const. amends. IV, XIV; N.J. Const. art. I, ¶¶ 1, 7 and N.J. Const. art. IV, § 7, ¶ 3. The issues were decided on the basis of briefs and certifications, including documentary evidence.
For reasons stated in a thoughtful opinion, the trial judge held that the Act would deprive offenders of due process and permit unreasonable searches unless modified to include a right of expungement upon completion of sentence. As a corollary to that right, the judge further precluded the State defendants from sharing an offender profile with any agency that will not purge its database upon receipt of an expungement order.*fn3 The judge rejected plaintiffs' ex post facto claims.
The Attorney General and the Department of Corrections (collectively defendants) filed a notice of appeal; plaintiffs too filed a notice of appeal. The trial judge filed a supplemental opinion. We granted defendants' motion to consolidate and accelerate the appeals.
Defendants contend that neither the State nor Federal Constitutions require the expungement remedy the trial court fashioned. Plaintiffs contend that even with that remedy, the Act permits searches that are constitutionally unreasonable. Alternatively, they argue that without post-sentence expungement the Act would not only permit unreasonable searches but also deprive them of procedural and substantive due process and the fundamental fairness guaranteed by the State Constitution.*fn4
We discuss the Act and its implementation in Section II. We have the benefit of a full record describing the collection, testing and retesting, and dissemination of DNA profiles and identifying information.
In Section III we discuss the reasonableness of the searches authorized by the Act and hold that establishment of the system for identification of offenders required by this Act is a "special need, beyond the normal need for law enforcement," and that the searches and seizures authorized meet the reasonableness requirement of the Federal and State Constitutions, at least when applied to adults and juveniles over the age of fourteen at the time of the predicate act. See Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed. 2d 709, 717 (1987). This aspect of our decision is informed by State v. O'Hagen, 380 N.J. Super. 133 (App. Div.), certif. granted, 185 N.J. 391 (2005) and In re L.R., 382 N.J. Super. 605 (App. Div. 2006), which were decided after the trial judge's ruling and hold that the searches are reasonable. L.R., supra, 382 N.J. Super. at 619 (rejecting challenge by a juvenile over the age of fourteen); O'Hagen, supra, 380 N.J. Super. at 145-51 (rejecting adult offender's claims of unreasonable search and denial of equal protection).
The Act's requirement for promulgation of rules governing testing and access to DNA profiles is essential to our conclusion that the statutory scheme is reasonable and constitutional. In Section IV we hold that the division must adopt those rules in accordance with the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15.
Section V provides our reasons for concluding that neither the constitutional prohibition against unreasonable searches nor principles of due process or fundamental fairness permit or require a judicial expungement remedy.
New Jersey's Act is not unique. Each of the fifty states and Congress have adopted comparable statutes that provide a means for law enforcement agencies to maintain and share DNA profiles of offenders. See O'Hagen, supra, 380 N.J. Super. at 142-43.
The Legislature has provided a clear statement of its reasons for establishing this identification system:
The Legislature finds and declares that DNA databanks are an important tool in criminal investigations and in deterring and detecting recidivist acts. It is the policy of this State to assist federal, state and local criminal justice and law enforcement agencies in the identification and detection of individuals who are the subjects of criminal investigations. It is therefore in the best interest of the State of New Jersey to establish a DNA database and a DNA databank containing blood or other biological samples submitted by every person convicted or found not guilty by [specified offenders]. . . . [N.J.S.A. 53:1-20.18.]
The Act requires any person convicted, adjudicated delinquent or found not guilty by reason of insanity on the basis of conduct defined as a crime to "have a blood sample drawn or other biological samples collected for purposes of DNA [deoxyribonucleic acid] testing." N.J.S.A. 53:1-20.20g-h; N.J.S.A. 53:1-20.19. A crime is any offense subject to a term of imprisonment in excess of six months. N.J.S.A. 2C:1-4a. For ease of reference, we employ the term "offenders" to denote collectively persons convicted and adjudicated delinquent on the basis of conduct defined as a crime.*fn5
The collection is performed by trained personnel. N.J.S.A. 53:1-20.22. It is done once; an offender who previously has submitted an adequate biological sample following a prior adjudication or conviction is exempt from a second collection. Ibid. In most cases, samples are acquired with a "buccal swab," a foam receptor that the offender rubs between his or her teeth and cheek and holds under the tongue. The swab is rolled on a card that changes color upon successful transfer.*fn6 That card is the biological sample that is retained in the databank.
The biological samples are sent to the division and logged by bar code. Each sample is "securely stored" in the "State DNA databank" maintained by the division. N.J.S.A. 53:1-20.21; N.J.S.A. 53:1-20.23.
Each biological sample must be tested "in order to analyze and type the genetic markers." N.J.S.A. 53:1-20.21. The division must employ an "identification system . . . compatible with that utilized by the FBI." N.J.S.A. 53:1-20.23. The resulting DNA profiles must be "securely stored in the State database," which is administered by the division, and "forwarded to the FBI for inclusion in" the FBI's national DNA identification index system.*fn7 N.J.S.A. 53:1-20.19; N.J.S.A. 53:1-20.21; N.J.S.A. 53:1-20.23.
The "analysis" and "typing of genetic markers" conducted pursuant to this Act were explained by Linda B. Jankowski, M.S., the biologist responsible for oversight of the State Police DNA Laboratory and the Combined DNA Index System (CODIS) Unit. Thomas F. Callaghan, Ph.D., Custodian for the National DNA Index System (NDIS) and Chairman of its Procedures Board, described the testing and procedures for inter-state exchange of profiles and information identifying the donor of a profile.
A sample is tested by measuring "tetra-nucleotide repeats, also [known] as short tandem repeats ('STR's'), at each of thirteen specific regions on the human genome." According to defendants' experts, the "test cannot be used to determine any personal information, individual characteristics, or presenting or latent health defects . . . ." The "thirteen loci are the international standard in DNA testing." Because the "regions are highly variable between individuals, . . . this test is . . . considered one of the most reliable tests for identification known in forensic science today." The resulting profile is a series of numbers.*fn8
As defendants' experts explained, offender profiles in the DNA State or National database do not include any information identifying the person by name. The offender's "biographical data" (e.g., name, date of birth) is kept in a separate system that is linked to the profile only by a "bar code." The numeric DNA profiles, without identifying information, are the data that comprise the Convicted Offender Index. Agencies also maintain a separate Forensic Index that includes DNA developed from samples collected at crime scenes.
The Act requires the division to adopt "rules governing the procedures to be used in the submission, identification, analysis and storage of DNA samples and typing results of DNA samples submitted . . . ." N.J.S.A. 53:1-20.23.*fn9
Access to DNA profiles of offenders is statutorily limited. "All DNA profiles and samples . . . shall be treated as confidential except as provided in [N.J.S.A. 53:1-20.24]."
N.J.S.A. 53:1-20.27. The authorizing statute permits access in two circumstances: upon request from a law enforcement agency "in furtherance of an official investigation of a criminal offense" and when authorized by court order.*fn10 N.J.S.A. 53:1-20.24a. Access is further circumscribed by subsection b of N.J.S.A. 53:1-20.24, which requires the division to "adopt rules governing the methods of obtaining information from the State database and CODIS and procedures for verification of the identity and authority of the requestor."*fn11
By virtue of N.J.S.A. 53:1-20.24, a court order is needed before the division may give any person, other than a law enforcement agent in connection with an official criminal investigation, access to DNA profiles in the database. Thus, other uses of "test results" authorized by N.J.S.A. 53:1-20.21 -- "research"; "judicial proceedings"; "criminal defense purposes"; "identification of human remains from mass disasters" and "other purposes as may be required under federal law as a condition for obtaining federal funding" -- all require a court order. Unauthorized disclosure or dissemination of information included in the database is punishable as a disorderly persons offense. N.J.S.A. 53:1-20.26.
The Act does not limit the time during which an offender's profile and sample may be retained. It provides a right of expungement limited to an offender whose underlying charge is dismissed after reversal of his or her conviction or adjudication. N.J.S.A. 53:1-20.25.*fn12
The extension of this Act to include all persons convicted or adjudicated delinquent on the basis of conduct defined as a crime led to this litigation. The legislative history includes an explanation for the expansion of the Act. The sponsor of the bill explained that the goal was to "enhance the ability of law enforcement to solve crimes." Statement of the Senate Budget and Appropriations Committee to Assembly Bill No. 2617 (2003). He noted that "[o]ther states which collect DNA samples for a wider range of crimes have experienced a large increase in database 'hits,' particularly with respect to property crimes, such as burglary and robbery." Ibid.
As defendants' experts explained, the STR technology now employed in DNA profiling permits development of a profile from very small biological samples, "10,000 nanograms or less." As a result, forensic profiles can be developed from "chewing gum, cigarette butts, drinking cups and bottles, clothing, eyeglasses, or just about any item that comes ...