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A.A. v. Attorney General of New Jersey

January 24, 2007; as amended February 8, 2007

A.A., BY HIS PARENT AND GUARDIAN B.A., AND JAMAAL W. ALLAH, PLAINTIFFS-APPELLANTS,
v.
ATTORNEY GENERAL OF NEW JERSEY AND THE NEW JERSEY DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS, AND
MERCER COUNTY PROBATION SERVICES, DEFENDANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 384 N.J. Super. 67 (2006).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

(NOTE: This is a companion case to State of New Jersey v. John O'Hagen, also decided today)

The Court addresses the constitutionality of the New Jersey DNA Database and Databank Act of 1994 N.J.S.A. 53:1-20.17-20.28 (Act), as amended.

On May 29, 2001, Jamaal W. Allah pled guilty to second-degree possession of a controlled dangerous substance with intent to distribute and third-degree possession of a controlled dangerous substance with intent to distribute. On December 7, 2002, the trial court imposed a concurrent sentence of ten years with a five-year period of parole ineligibility.

On October 22, 2002, A.A., age fourteen, pled guilty to an act, which if committed by an adult, would have constituted aggravated assault. The trial court imposed an eighteen-month probationary term.

The September 2003 amendment to the Act required DNA sampling of convicted adults and delinquent juveniles whose crimes or delinquent acts preceded the enactment date if the person was currently then serving a sentence of imprisonment, detention, confinement, probation, parole, or other form of supervision. Allah and A.A. were two of the many individuals then serving a sentence who were required to submit to DNA testing.

In January 2004, A.A., through his parent and guardian, B.A., and Allah (collectively, plaintiffs) filed a complaint challenging the constitutionality of DNA collecting, testing, and databanking pursuant to the Act. Plaintiffs contended that the Act violated the Fourth and Fourteenth Amendments and the Ex Post Facto Clause of the United States Constitution, as well as Article I, Paragraphs 1 and 7 and the Ex Post Facto Clause of the New Jersey Constitution. Plaintiffs sought a preliminary injunction to bar the State from obtaining a biological sample from them pending the outcome of the litigation.

The State opposed the motion and filed a cross-motion to dismiss plaintiffs' complaint. The trial court applied the totality of the circumstances analysis in concluding that both the Federal and New Jersey Constitutions permit the State to conduct a suspicionless search through the DNA testing program. The court held, however, that absent informed consent, the State may not retain plaintiffs' DNA samples or profiles indefinitely, and that convicted persons have a right of expungement when their periods of supervision end. The trial court also prohibited the State from sharing plaintiffs' DNA with any other government database that does not provide a comparable right to expungement, including the FBI's controlled national Combined DNA Index System (CODIS).

On appeal, the Appellate Division upheld the constitutionality of the Act, but applied a special needs analysis rather than a totality of the circumstances test. The panel concluded that the State's special needs beyond ordinary crime detection substantially outweighed the intrusions on the plaintiffs' reasonable expectations of privacy. The panel rejected the need to graft an expungement remedy onto the Act, finding that the government's interest in maintaining the identifying information for use in solving and deterring crimes continued to outweigh plaintiffs' countervailing interest in avoiding detection on the basis of the identifying information after expiration of the sentence. The panel further held that pursuant to the Act, the State Police must adopt rules governing the procedures to be used in the submission, identification, storage and analysis of the DNA samples, as well as rules governing the methods of obtaining information from the State database and CODIS and procedures for verifying the identity and authority of the individual requesting the information.

The Supreme Court granted certification.

HELD: DNA test results lawfully obtained pursuant to the New Jersey DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17-20.28, as amended, may be used to solve crimes committed prior to the taking of the DNA test.

1. In State of New Jersey v. O'Hagen, also decided today, the Court upheld the constitutionality of the Act. This case differs slightly from O'Hagen in that it concerns a juvenile as well as an adult. That difference arises because the emphasis in the Juvenile Code is on rehabilitation, expressly stating that its purpose is "to remove from children committing delinquent acts certain statutory consequences of criminal behavior, and to substitute therefore an adequate program of supervision, care and rehabilitation, and a range of sanctions designed to promote accountability and protect the public." (Pp. 8-11)

2. In certain contexts, the Court has required different treatment for juveniles. In contrast to the Megan's Law requirements, which treats juveniles under fourteen differently than juveniles fourteen and older, DNA testing is a one-time procedure that applies equally to juveniles found delinquent and adults found guilty of a crime. Further, unlike Megan's Law, DNA testing has no requirement that the juvenile perform any act in the future. The DNA test results act as an identification device, much like a fingerprint, and are stored in a secure local and national database. As such, there is no justification to carve out a special exception for juveniles whether younger than fourteen or older. (Pp. 11-12)

3. The Court need not engraft a right to expunge the DNA identifier from the database after a convicted adult or juvenile has served his or her sentence. The practical result of the DNA testing procedure is the same as for fingerprints or photographs. The expectation of privacy in the DNA sample of an adult criminal or a juvenile defendant is so minimal as compared to the government's substantial interest that there is no need to give it any greater protection than what is allowed for fingerprinting or photographs. (Pp. 12-14)

4. Once a search and seizure is completed, the subsequent use of the evidence does not constitute an independent search because there is no additional invasion of the owner's privacy interest. If the initial search is lawful, the subsequent use of the evidence seized is not a search that implicates the Fourth Amendment. The taking of a saliva sample or a blood test is a search that is completed upon the taking of the sample. As long as the taking of the DNA test is pursuant to the Act, it is a valid search. The subsequent retrieval of that information is not a new intrusion of defendant's privacy interest and, therefore, not a search for Fourth Amendment purposes. (Pp. 14-16)

5. DNA tests are like fingerprints and photographs in that the results reveal identifying information that can be stored for further use. There is no constitutional bar to using a photograph or fingerprint in helping to solve a crime, regardless of when the crime was committed. There is no sufficient reason to treat DNA test results any differently. Therefore, DNA test results lawfully obtained pursuant to the Act may be used to solve crimes committed prior to the taking of the DNA test. (P. 16)

Judgment of the Appellate Division is AFFIRMED.

The opinion of the court was delivered by: ...


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