{ "id": 3365123, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOB RAMOS, Defendant-Appellant", "name_abbreviation": "People v. Ramos", "decision_date": "2004-09-30", "docket_number": "No. 1\u201403\u20142963", "first_page": "133", "last_page": "162", "citations": [ { "type": "official", "cite": "353 Ill. App. 3d 133" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "352 Ill. App. 3d 537", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5458219 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/0537-01" ] }, { "cite": "272 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 680647 ], "year": 1994, "pin_cites": [ { "page": "14" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/264/0006-01" ] }, { "cite": "532 U.S. 67", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9300726 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "84" }, { "page": "220" }, { "page": "1292" } ], "opinion_index": 2, "case_paths": [ "/us/532/0067-01" ] }, { "cite": "531 U.S. 32", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9505377 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "37" }, { "page": "340-41" }, { "page": "451-52" } ], "opinion_index": 2, "case_paths": [ "/us/531/0032-01" ] } ], "analysis": { "cardinality": 2350, "char_count": 81083, "ocr_confidence": 0.751, "pagerank": { "raw": 2.166093754674909e-07, "percentile": 0.7704814064449317 }, "sha256": "863509a8ffaa0383339104b4ca2837cbae5bb44a0f7090ec02c9e6a2843d820d", "simhash": "1:682fb4906f825ce6", "word_count": 13284 }, "last_updated": "2023-07-14T16:37:49.624900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOB RAMOS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nAfter a bench trial, defendant Jacob Ramos was convicted of residential burglary and was sentenced to 16 years in prison. Defendant now appeals, arguing that his sentence was excessive, that he received a disproportionately long sentence as compared to a similarly situated codefendant, and that the compulsory extraction and perpetual storing of his DNA violated his fourth amendment right to be free from unreasonable searches and seizures. For the reasons that follow, we affirm the defendant\u2019s conviction and sentence as well as the constitutionality of section 5 \u2014 4\u20143(a)(3.5) of the Unified Code of Corrections (730 ILCS 5/5-^4 \u2014 3 (West 2002)).\nOn June 21, 2002, Chicago police officer Del Rivero and his partner, Officer Haran, were assigned to investigate numerous burglaries that had occurred near Damen Street and Wood Street in Chicago, Illinois. That day, Officer Del Rivero conducted surveillance on the street while Officer Haran was in an unmarked car a few blocks away. At approximately 2:50 p'.m., Officer Del Rivero noticed the defendant acting suspiciously in front of a residence at 902 Winchester Street. Apparently, the defendant was looking in all directions, up and down, when the codefendant walked out of a gangway between the buildings at 900 and 902 Winchester. Defendant and Gonzalez had a short conversation and then proceeded to ring the doorbells of the units in 902 and 904 Winchester.\nAt that point, Officer Del Rivero noticed the defendant and codefendant walk to the rear of 902 Winchester. Gonzalez then appeared in the gangway with a toolbox in his hand, and he placed it on its side below a windowsill of the 902 Winchester building. Using the toolbox as a stair, Gonzalez balanced himself on the windowsill, and defendant boosted Gonzalez up toward the windowsill. Gonzalez then forced the window open with his hands and entered the first-floor apartment.\nFrom nearly 60 feet away, Officer Del Rivero then watched the defendant walk to the front door of the first floor of 902 Winchester and proceed through the door, which Gonzalez had opened from the inside. After two to three minutes in the apartment, the defendant and Gonzalez exited the building and walked north on Winchester. Defendant was holding an Aldi shopping bag. At that point, Officer Del Rivero contacted another enforcement officer and gave him a description of the defendant and Gonzalez. After the enforcement officer and Officer Haran stopped and detained the defendant and Gonzalez, they searched the Aldi bag and retrieved several items, including two white vases.\nAfter the victim had returned home, he verified to police that his apartment was not in the same order as he had left it that morning. He also verified that several items were missing and was later able to confirm that the items recovered from the Aldi bag were taken from his apartment. Some of the items, however, were never recovered. The victim had never met the defendant or Gonzalez and did not grant them permission to enter his apartment.\nIn light of the evidence, the trial court found the defendant guilty of residential burglary and sentenced him to 16 years in prison. At the time of the sentencing, the State asked the court to order defendant to produce a blood sample for forensic DNA testing. Defendant did not object, and on May 20, 2003, the court granted the State\u2019s motion. The defendant now appeals his sentence and the order to produce.\nDefendant\u2019s first argument on appeal is that his sentence of 16 years for residential burglary is excessive in light of his personal history, the particular circumstances of the offense, and his strong rehabilitative potential. We note that Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) grants a reviewing court the authority to reduce a sentence imposed by the trial court if the reviewing court finds that the trial court abused its discretion in imposing the sentence. People v. Perruquet, 68 Ill. 2d 149, 154 (1977).\nThe defendant was sentenced as a Class X offender pursuant to section 5 \u2014 5\u20143(c)(8) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 2002)), which states, in pertinent part:\n\u201cWhen a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class 2 or greater Class felony and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender.\u201d 730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 2002).\nAny defendant convicted of a Class X felony faces a sentence of a minimum of 6 years\u2019 to a maximum of 30 years\u2019 imprisonment. 730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2002). Here, because the defendant had eight prior felony convictions, the trial court was required to sentence him as a Class X offender. Nevertheless, defendant argues that the trial court erred in failing to consider several factors in mitigation.\nFirst, defendant argues that because he neither caused nor contemplated that his action would cause bodily harm during the time of the offense, the trial court should have provided a reduced sentence. For this, he notes that the offense occurred at approximately three in the afternoon after he and his codefendant first rang the apartment\u2019s doorbell to ensure nobody was present. He also notes that when he was captured, neither he nor his codefendant was armed nor did they attempt to flee or resist arrest. In that vein, he also notes that none of his prior convictions were violent or drug-related.\nNext, he argues that the trial court failed to take into account his background. In support of that argument, defendant alleges that his extended imprisonment would entail a hardship on his dependents, since, prior to the arrest, he was earning $14.42 per hour plus commission as a salesman. In addition, he claims that he was soon to have been promoted to the position of warehouse manager by his employer, Mr. Cheeks, who would hire him upon release from prison. He also notes that his incarceration could endanger his medical condition, as he is HIV positive.\nThird, defendant claims that the trial court failed to consider his strong rehabilitative potential, in that he has earned his GED, completed 117 college credits at various junior colleges through the Department of Corrections, obtained a certificate of culinary arts, and is two credits short of earning an associate\u2019s degree in digital electronics. In addition to his education, the defendant states, he worked at El Meson, a rehabilitative facility for alcohol and drug abusers. There, defendant notes, he taught Bible study and was instrumental in saving a program that helps ex-offenders find jobs, secure housing, and get an education.\nLooking at the totality of this mitigating evidence, defendant then draws attention to this court\u2019s decision in People v. Center, 198 Ill. App. 3d 1025 (1990). There, the defendant was convicted of burglarizing a laundromat. At sentencing, the State presented the defendant\u2019s criminal record, which contained two prior Class 2 felony convictions, one for robbery and one for burglary. Center, 198 Ill. App. 3d at 1033. The trial court reviewed the defendant\u2019s personal history and found him eligible for a Class X sentence under the statute now codified as section 5 \u2014 5\u20143(c)(8) of the Unified Code of Corrections, and sentenced the defendant to 15 years. Center, 198 Ill. App. 3d at 1034. After reviewing the defendant\u2019s personal history, this court found no aggravating factors other than the two previous convictions and thus concluded that the defendant possessed the capability and potential for rehabilitation. Center, 198 Ill. App. 3d at 1035. Consequently, the court found the 15-year sentence to be excessive and reduced the sentence to 7 years. Center, 198 Ill. App. 3d at 1035.\nLikewise, in the present case, defendant argues that the only aggravating factor is his prior criminal history and that he possesses a \u201csubstantial amount of mitigating factors.\u201d Defendant concludes that where his prior adult record contains only nonviolent offenses and where he has taken affirmative steps with his education and his career and where he has served as a positive influence upon other ex-offenders and addicts, his 16-year sentence does not conform with the spirit or purpose of the law We disagree.\nIn determining a sentence, a trial court must analyze the acts constituting the crime and a defendant\u2019s credibility, demeanor, general moral character, mentality, social environments, habits, age, and potential for rehabilitation. People v. Steffens, 131 Ill. App. 3d 141, 152-53 (1985). However, because the trial court is in a better position to judge the credibility of the witnesses and the weight of the evidence at the sentencing hearing, its decision is entitled to great deference and will not be overturned even if we may have balanced the factors differently. People v. Jones, 168 Ill. 2d 367, 373 (1995); People v. Beals, 162 Ill. 2d 497, 511 (1994); People v. Cox, 82 Ill. 2d 268, 280 (1980). In other words, we will not find an abuse of the trial court\u2019s discretion unless its decision is fanciful, arbitrary, or unreasonable to the degree that no reasonable person would agree with it. People v. Ortega, 209 Ill. 2d 354, 359 (2004). In addition, whenever a sentence falls within the statutorily mandated guidelines, we presume it to be proper and will not overturn it unless there is an affirmative showing that the sentence varies greatly from the purpose and the spirit of the law, or is manifestly disproportionate to the nature of the offense. People v. Fern, 189 Ill. 2d 48, 54 (1999). Finally, it is well settled that a trial court is presumed to have considered all the mitigating factors in front of it. People v. Burnette, 325 Ill. App. 3d 792, 808 (2001).\nAs previously mentioned, the defendant here was required to be sentenced as a Class X offender because he was over 21 years old, the conviction in this case was a Class 1 felony, and the defendant had been convicted of at least two prior Class 2 felonies. 730 ILCS 5/5\u2014 5 \u2014 3(c)(8) (West 2002). We note that where the sentencing range for a Class X offender is between 6 and 30 years (730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2002)), defendant\u2019s sentence of 16 years was well within the statutory range.\nIn that regard, we find it irrelevant that the circumstances of this offense or any of his previous offenses were nonviolent and non-drug-related. Indeed, section 5 \u2014 5\u20143(a)(8) of the Unified Code of Corrections does not require that any offense be violent or drug-related in nature. 730 ILCS 5/5 \u2014 5\u20143(a)(8) (West 2002). In any event, we are to presume the trial court considered those details in making its final calculation of the defendant\u2019s sentence. Burnette, 325 Ill. App. 3d at 808. Accordingly, we think that the trial court acted well within its discretion in imposing a sentence in the middle of the statutory range, where the defendant not only met the prior felony requirements of section 5 \u2014 5\u20143(a)(8), but exceeded them by eight felony convictions.\nIn addressing whether the trial court erred in failing to consider the defendant\u2019s background in imposing his sentence, we note that it is well established that a trial court \u201cneed not articulate the process by which it determines the appropriateness of a given sentence.\u201d People v. Wright, 272 Ill. App. 3d 1033, 1045-46 (1995). Put another way, \u201c[t]he trial [court] is not required \u2018to detail for the record the process by which [it] concluded that the penalty [it] imposed was appropriate.\u2019 \u201d People v. Boclair, 225 Ill. App. 3d 331, 335 (1992), quoting People v. La Pointe, 88 Ill. 2d 482, 493 (1981). Thus, it is of no moment in the present case that the trial court failed to articulate its consideration of mitigating facts. See People v. Wright, 272 Ill. App. 3d 1033, 1046 (1995). And because we must presume that the trial court considered all the mitigating factors before it (Burnette, 325 Ill. App. 3d at 808), absent a contrary indication other than the sentence (People v. Cagle, 277 Ill. App. 3d 29, 32 (1996)), the defendant\u2019s argument must fail. In fact, we note that the record reveals that all of this information was, in fact, in the presentence report that was before the court for its consideration. It appears the trial court simply found that a lighter sentence was not warranted based on the recidivistic nature of the defendant\u2019s crimes. Therefore, because there is no evidence to suggest that the trial court ignored any one of defendant\u2019s mitigating factors \u2014 other than its failure to individually list all of them while imposing its sentence \u2014 we cannot find an abuse of discretion.\nAs to the trial court\u2019s alleged disregard for defendant\u2019s rehabilitative potential, we note that seven of the defendant\u2019s eight prior convictions involved a burglary, robbery, or a theft. As the State points out, in 1989 alone, the defendant was convicted of residential burglary three times. Clearly, where a defendant\u2019s potential for rehabilitation can be gleaned in part by his criminal history (People v. Coleman, 201 Ill. App. 3d 803, 809 (1990)), the defendant\u2019s repeated commission of these types of crimes suggests that he has almost no likelihood of ever rehabilitating himself. See People v. Knight, 139 Ill. App. 3d 188, 197 (1985) (held that the more extensive a defendant\u2019s criminal record, the lower the potential for rehabilitation). This conclusion is even more apparent when considering the amount of support the defendant received throughout his life, as indicated by the trial court. Where it is indisputable that the defendant repeatedly has chosen a life of crime over making good use of that overwhelming support, it certainly is reasonable to conclude that he would mimic such behavior in the future. Thus, defendant\u2019s argument fails in this regard as well.\nDefendant\u2019s reliance on Center fares no better. The comparative sentence approach has been denounced roundly as fundamentally flawed in People v. Fern, 189 Ill. 2d 48, 55 (1999), and People v. Bien, 277 Ill. App. 3d 744, 753 (1996). This court reasoned that the comparative sentence approach \u201calso frustrates the purposes of individually tailored sentences as it fails to consider the nuances unique to each case.\u201d Bien, 277 Ill. App. 3d at 754. Indeed, as the State notes, the supreme court has found the comparisons between two defendants to be proper only when their circumstances are substantially identical. People v. Leger, 149 Ill. 2d 355, 411 (1992).\nIn this case, the only similarity between the defendant and the defendant in Center is the nonviolent nature of their crimes. In Center, the defendant was 23 years old, he burglarized a closed laundromat, he acted only as lookout, there were no proceeds, and he had only two prior convictions. Here, the defendant was 42 years old, he burglarized a home rather than a business, he actively entered the home while committing the crime, and he had eight prior felony convictions as opposed to two. Thus, as the circumstances surrounding the defendant in Center and the defendant in the present case are actually very dissimilar, defendant\u2019s reliance upon the comparative sentence approach (by way of Center) also fails.\nDefendant next argues that his 16-year sentence should be reduced because it is unsuitably disparate compared to the 7-year sentence received by his codefendant, Gonzalez. Fundamental fairness and respect for the law require that defendants who are similarly situated should not receive grossly disparate sentences. Fern, 189 Ill. 2d at 58; People v. Thornton, 286 Ill. App. 3d 624, 636 (1997). Moreover, improper sentence disparity occurs when equally culpable defendants with similar backgrounds are given substantially different sentences or when equally culpable defendants with different backgrounds, ages, and criminal propensities are given the same sentence. People v. Smith, 214 Ill. App. 3d 327, 342 (1991). Accordingly, to prevail on a claim of disparate sentencing, a defendant must demonstrate that he and his codefendant were similarly situated with respect to background, prior criminal history, and potential for rehabilitation. People v. Curry, 296 Ill. App. 3d 559, 569 (1998), citing People v. Cooper, 239 Ill. App. 3d 336, 363 (1992). In the present case, defendant argues that none of these factors warrant the trial court sentencing the defendant to more than twice as many years in prison than Gonzalez.\nFor example, defendant notes that both he and Gonzalez have extensive criminal backgrounds. Gonzalez\u2019s prior adult convictions include robbery, aggravated battery, and possession of a controlled substance. These offenses were committed in 2001, for which he received 30 months\u2019 probation. In 1998, Gonzalez was convicted of domestic battery, and the one-year conditional discharge he received for that offense was revoked. Further, in 1994, Gonzalez was convicted of another charge of possession of a controlled substance and received probation. He later violated that probation and was sentenced to 42 days\u2019 imprisonment.\nDefendant acknowledges that he also has several prior convictions: a 1979 burglary conviction, a 1979 robbery conviction, a 1985 residential burglary conviction, three 1989 burglary convictions, a 1996 retail theft conviction, and a 1996 possession-of-a-controlled-substance-with-intent-to-deliver conviction. However, while he concedes that his criminal history is more extensive than Gonzalez\u2019s, he notes that he was never convicted of a violent offense, such as domestic battery. Accordingly, he concludes that even if his criminal history justifies a longer sentence, it cannot account for the gross disparity between the sentences.\nDefendant also argues that he has demonstrated a much stronger potential for rehabilitation than Gonzalez. For example, where defendant has shown that he has taken affirmative steps with his education and his career (such as the 117 college credits at various colleges, that he is 2 credits away from receiving an associate\u2019s degree in digital electronics, and that he has secured a job at Mr. Cheeks\u2019s warehouse upon release) and has served as a positive influence upon other ex-offenders and addicts (such as teaching Bible study and saving a program that helps ex-offenders find jobs), the only mitigating evidence that Gonzalez provided was that he was a drug addict. In fact, defendant notes, Gonzalez, a high school graduate, provided no evidence that he had made any contribution to society or has secured any definite employment upon release from prison.\nFinally, defendant argues that there was no evidence that he was the principal offender or played a greater role in the offense than Gonzalez to justify a disparate sentence. Rather, defendant notes that the evidence presented at trial shows that both defendants participated equally in the offense, as both helped each other enter the building and participated in the burglary. And because, defendant asserts, both offenders were equally culpable, a disparate sentence was not warranted.\nAs noted above, a trial court\u2019s judgment as to an appropriate offense is entitled to great deference and will not be altered on review absent a showing that the punishment imposed constitutes a clear abuse of discretion. Beals, 162 Ill. 2d at 512. Accordingly, we may not change the trial court\u2019s decision unless we determine that no reasonable finder of fact would agree, with it. Ortega, 209 Ill. 2d at 359.\nIn reviewing the respective defendant\u2019s criminal background, the only similarity we discern is that both individuals had prior convictions. However, it is undisputed that the defendant\u2019s record includes convictions for.eight prior felonies and four misdemeanors, whereas the codefendant\u2019s includes four felony convictions and one misdemeanor. And while it is true that the defendant was involved in activities which might normally be considered to be indicative of rehabilitative potential, the fact that he constantly eschewed those activities and support for criminal activity indicates that defendant had little potential for rehabilitation \u2014 much like the codefendant. Accordingly, we find it entirely reasonable for the trial court to have judged the circumstances surrounding each individual to be entirely dissimilar. Quite simply, the raw numbers reveal that the defendant was convicted of 12 crimes, where the codefendant was convicted of 5. Accordingly, in light of the fact that there is ample evidence to suggest that the codefendants are not similarly situated, we find that defendant has failed to satisfy a necessary requirement to reduce a disparate sentence under Cooper. Given the great deference with which we are to review the trial court\u2019s decision, we affirm the trial court\u2019s imposition of defendant\u2019s 16-year sentence.\nDefendant\u2019s last argument challenges the trial court\u2019s grant of the State\u2019s motion to produce a DNA sample. Specifically, In asserts that section 5 \u2014 4\u20143 of the Code of Corrections (730 ILCS 5/5 \u2014 4\u20143 (West 2002)) is unconstitutional for violating his fourth amendment right to be free from unreasonable sear Ates and seizures. In pertinent part, section 5 \u2014 4\u20143(a) (3.5) mandates:\n\u201cAny person *** convicted or found guilty of any offense classified as a felony under Illinois law *** shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section, provided such person is:\n* * *\n(3.5) [Clonvicted or found guilty of any offense classified as a felony under Illinois law or found guilty or given supervision for such an offense under the Juvenile Court Act of 1987 on or after [August 22, 2002.]\u201d 730 ILCS 5/5 \u2014 4\u20143(a)(3.5) (West 2002).\nThe fourth amendment provides, \u201cThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.\u201d U.S. Const., amend. IV As the defendant notes, the United States Supreme Court has held repeatedly that blood extractions are searches for the purposes of the fourth amendment and, therefore, are subject to the normal fourth amendment requirements. See Skinner v. Ry. Labor Executives\u2019Ass\u2019n, 489 U.S. 602, 616, 103 L. Ed. 2d 639, 659, 109 S. Ct. 1402, 1412-13 (1989).\nDefendant correctly notes that because a constitutional challenge to a criminal statute may be raised at any time, he has not waived review of this issue despite his raising it for the first time on appeal. People v. Bryant, 128 Ill. 2d 448, 454 (1989). Whether a statute is constitutional is a question of law subject to de novo review. People v. Fisher, 184 Ill. 2d 441, 448 (1998).\nDefendant\u2019s challenge to section 5 \u2014 4\u20143(a)(3.5)\u2019s constitutionality is twofold. Initially, he notes that the United States Supreme Court has clarified that the fourth amendment prohibits nonconsensual, warrantless and suspicionless searches into a person\u2019s body or home unless the purpose of the search serves a \u201cspecial need\u201d beyond general law enforcement. See City of Indianapolis v. Edmond, 531 U.S. 32, 41, 148 L. Ed. 2d 333, 343, 121 S. Ct. 447, 454 (2000); Ferguson v. City of Charleston, 532 U.S. 67, 84, 149 L. Ed. 2d 205, 220, 121 S. Ct. 1281, 1292 (2001). In particular, defendant notes, the Court has recognized this \u201cspecial need\u201d exception to suspicionless searches only in limited circumstances, such as sobriety checkpoints that serve the \u201cspecial need\u201d of removing drunk drivers from the road. See New York v. Burger, 482 U.S. 691, 702, 96 L. Ed. 2d 601, 614, 107 S. Ct. 2636, 2644 (1987) (warrantless administrative inspection allowed because the search was appropriately limited); Michigan Department of State Police v. Sitz, 496 U.S. 444, 450, 110 L. Ed. 2d 412, 420, 110 S. Ct. 2481, 2485 (1990) (sobriety checkpoints aimed at removing drunk drivers from the road were held permitted).\nFor example, defendant notes that in Edmond, in examining the constitutionality of a practice of the Indianapolis State Police to stop a predetermined number of vehicles at checkpoints, the Court emphasized that in \u201cnone of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.\u201d Edmond, 531 U.S. at 38, 148 L. Ed. 2d at 341, 121 S. Ct. at 452. In Edmond, the Court ultimately found that because the primary purpose of the Indianapolis checkpoint program was to uncover evidence of ordinary criminal wrongdoing, it violated the fourth amendment. Edmond, 531 U.S. at 48, 148 L. Ed. 2d at 347-48, 121 S. Ct. at 458. In other words, where there is a law enforcement purpose for a search that does not extend beyond the ordinary enterprise of investigating crimes, the Court ruled that it would not suspend the usual requirement of individualized suspicion. Edmond, 531 U.S. at 44, 148 L. Ed. 2d at 345, 121 S. Ct. at 455.\nIn light of these decisions, defendant asserts, the mandatory extraction of his blood, without individualized suspicion, violates the fourth amendment because the purpose of taking his blood was not for any \u201cspecial need\u201d beyond general law enforcement.\nAlternatively, defendant argues that even if we reject the \u201cspecial needs\u201d approach in favor of balancing the degree to which the search intrudes on an individual\u2019s privacy interests against the degree to which the search is needed to promote legitimate government interests, the search here was not reasonable. By way of contrast, defendant notes the Second District\u2019s decision in People v. Wealer, 264 Ill. App. 3d 6, 16 (1994). Originally, the statute at issue in the present case applied only to sex offenders (see 730 ILCS 5/5 \u2014 4\u20143 (West 1992)) and was only recently amended to encompass all felony offenders. The Wealer court, in addressing a challenge to the sex-offender version of the statute, utilized the balancing test and found that the State had a legitimate interest in deterring and prosecuting acts committed by sex offenders and that interest was \u201cespecially compelling when we consider that sex offenders frequently target children as their victims.\u201d Wealer, 264 Ill. App. 3d at 16. In addition, the Wealer court found that the State had a substantial interest in using DNA evidence to solve future sexual offenses and to establish the identity of convicted sex offenders and repeat offenders who attempt to conceal or alter their identity. Wealer, 264 Ill. App. 3d at 16.\nHowever, defendant notes, in Wealer, the court emphasized that there was no risk that the DNA statute would be applied in an arbitrary or oppressive fashion because its application was uniformly applied to sex offenders. Wealer, 264 Ill. App. 3d at 15. Under the statute at issue here, however, defendant argues that DNA extraction is not applied to a narrow class of individuals. Rather, the DNA statute \u201cmay\u201d be applied to any person convicted or found guilty of any offense classified as a felony under Illinois law. Consequently, because the trial court has the discretion to order any person convicted of a felony to submit to DNA testing pursuant to section 5 \u2014 4\u20143(a)(3.5), defendant argues that such discretion leads to the inherent risk of a trial court applying the DNA statute in an arbitrary or oppressive manner. And it is the very \u201carbitrary\u201d or \u201cbroad\u201d nature of the DNA statute which, defendant argues, should militate against finding it reasonable.\nFurthermore, in analyzing the degree to which section 5 \u2014 4\u2014 3(a)(3.5) advances the State\u2019s interests by taking blood samples of nonviolent property offenders \u2014 such as the defendant \u2014 without their consent, the defendant asserts that the interests asserted in Wealer do not apply because the defendant here is not a sex offender. In short, defendant claims, the State has no compelling interests regarding nonviolent nonsexual offenders (like himself) because our society does not consider those offenders to be as heinous as sex offenders. Moreover, in the context of sexual and violent crimes, he argues that a perpetrator is likely to leave DNA evidence on the scene or on the victim because those crimes involve bodily fluids such as semen or blood. Therefore, in those instances, there is a reasonable likelihood that a convicted sex offender\u2019s DNA sample may be used to solve future sex crimes. However, in the context of a nonviolent property offense, such as in the case at bar, defendant asserts that \u201cthere is virtually no chance that DNA evidence would be involved in the investigation or prosecution of similar cases in the future.\u201d Accordingly, because the likelihood of law enforcement using that person\u2019s DNA to solve future nonviolent property cases is extremely remote, defendant claims that the forced extraction of his DNA fails to reasonably advance the State\u2019s interests.\nFinally, defendant argues that the degree of the intrusion of a DNA extraction upon his privacy rights is great, where it has been held that blood extraction for DNA genetic pattern analysis fundamentally differs from less intrusive searches as fingerprinting and therefore commands more constitutional protection. Blood extraction, defendant argues, requires penetrating a person\u2019s skin and withdrawing bodily fluid, while fingerprinting merely records physical attributes that are generally exposed to public view and \u201crepresents a much less serious intrusion upon personal security than other types of searches and detentions.\u201d Hayes v. Florida, 470 U.S. 811, 814, 84 L. Ed. 2d 705, 709, 105 S. Ct. 1643, 1646 (1985). And because such uniquely private genetic facts about an individual go well beyond the identifying mark of a fingerprint, he asserts, all individuals \u201cclearly have an interest in avoiding disclosure of such personal information.\u201d\nThe defendant concedes that his status as a prisoner may \u201cslightly\u201d reduce his expectation of privacy, but he argues that convicted prisoners do not forfeit their constitutional protections by reason of their conviction. Bell v. Wolfish, 441 U.S. 520, 545, 60 L. Ed. 2d 447, 472-73, 99 S. Ct. 1861, 1877 (1979); Wealer, 264 Ill. App. 3d at 17. In other words, defendant asserts that his status as a prisoner cannot justify the State\u2019s abandonment of the constitutional requirements for an intrusion into his bodily integrity. Ultimately, defendant concludes that where he has demonstrated that no legitimate needs are served by the forced extraction of blood from individuals such himself, and where he has a great privacy interest in the genetic information to be obtained from that blood, the constitutional balancing test also requires this court to strike down section 5 \u2014 4\u20143(a)(3.5) as unconstitutional.\nThe Second District has already entertained and rejected the very same claims made by the defendant in People v. Garvin, 349 Ill. App. 3d 845 (2004). In reaching its decision, the Garvin court noted that all 50 states and the District of Columbia have enacted genetic marker testing statutes. See Garvin, 349 Ill. App. 3d at 853-54. It also noted that these statutes have been challenged in courts of numerous jurisdictions, and all, to date, have been held to be constitutional. Garvin, 349 Ill. App. 3d at 854. See also United States v. Kincade, No. 02 \u2014 50380 (9th Cir. August 18, 2004) (finding the extraction of a federal criminal\u2019s DNA, pursuant to the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. \u00a7\u00a7 14135a(c)(l) through (c)(2) (2000)), to be constitutional).\nIn making those determinations, the Garvin court observed, the foregoing courts have indeed taken two approaches in their fourth amendment analyses, those being the balancing test and the special needs test. Garvin, 349 Ill. App. 3d at 855. However, Garvin found that the Second District previously rejected the special needs approach in favor of the balancing approach (Wealer, 264 Ill. App. 3d at 12), and consequently followed the reasoning of the balancing approach in that case. Garvin, 349 Ill. App. 3d at 855. In that regard, in measuring the State\u2019s interest, the Garvin court found:\n\u201c[I]t is beyond dispute that the State has a strong interest in deterring and prosecuting recidivist criminal acts. In re Robert K., 336 Ill. App. 3d 867, 871 (2003); Wealer, 264 Ill. App. 3d at 17. Section 5 \u2014 4\u20143 of the Code of Corrections is closely related to this interest. Mandatory DNA testing of convicted felons is a precise technological method of identifying and eliminating potential suspects. Robert K., 336 Ill. App. 3d at 871; Wealer, 264 Ill. App. 3d at 17. DNA identification has been likened to a fingerprint. See Landry v. Attorney General, 429 Mass. [336,] 346-47, 709 N.E.2d [1085,] 1092 [(1999)]. While some differences exist, they are both identity markers. DNA is more conclusive and \u2018can practically guarantee a 100% certain identity.\u2019 Miller v. United States Parole Comm\u2019n, 259 E Supp. 2d 1166, 1177-78 (D. Kan. 2003).\u201d Garvin, 349 Ill. App. 3d at 855.\nThereafter, in analyzing the defendant\u2019s expectation of privacy, the Garvin court noted the oft-repeated principle that convicted persons, including those people on probation, lose some rights to personal privacy that would otherwise be protected under the fourth amendment. Garvin, 349 Ill. App. 3d at 855, citing Griffin v. Wisconsin, 483 U.S. 868, 880, 97 L. Ed. 2d 709, 722, 107 S. Ct. 3164, 3172 (1987); Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 405, 104 S. Ct. 3194, 3202 (1984). Garvin also goes so far as to note that once a person becomes convicted of one of the felonies enumerated in a genetic marker testing statute, \u201chis or her identity has become a matter of state interest and he or she has lost any legitimate expectation of privacy in the identifying information derived from the bodily sampling. [Citations.]\u201d Garvin, 349 Ill. App. 3d at 855. Apparently, therefore, the Garvin court is of the opinion that the defendant in that case \u2014 and any other defendant who falls under section 5 \u2014 4\u20143\u2019s requirements \u2014 retained no interest whatsoever in keeping such genetic information private.\nFinally, the Garvin court also analyzed the relative intrusiveness of a blood extraction and noted that other courts considering fourth amendment challenges have \u201cuniversally determined that a blood draw from a convicted person to gather genetic information for identification involves only a minimal intrusion. [Citation.]\u201d Garvin, 349 Ill. App. 3d at 856. In fact, Garvin noted, the United States Supreme Court has found that a blood draw is not an \u201c \u2018unduly extensive imposition\u2019 (Winston v. Lee, 470 U.S. 753, 762, 84 L. Ed. 2d 662, 670, 105 S. Ct. 1611, 1617 (1985)) and \u2018would not be considered offensive by even the most delicate\u2019 (Breithaupt v. Abram, 352 U.S. 432, 436, 1 L. Ed. 2d 448, 451, 77 S. Ct. 408, 410 (1957)).\u201d Garvin, 349 Ill. App. 3d at 856. Indeed, Garvin concludes, this court has previously determined that the physical intrusion imposed by the DNA testing mandated by section 5 \u2014 4\u20143 \u201c \u2018is relatively slight and poses no threat to the health or safety of the individual tested.\u2019 Wealer, 264 Ill. App. 3d at 16, citing People v. Adams, 149 Ill. 2d 331, 346 (1992).\u201d Garvin, 349 Ill. App. 3d at 856.\nIn sum, therefore, the Garvin court found section 5 \u2014 4\u20143 was not unconstitutional because: (1) the public has a significant interest in preventing recidivism and accurately determining guilt or innocence in such cases, where the identity of the person previously convicted of a crime is a state interest; (2) upon conviction of a felony, a defendant loses any realistic expectation of privacy in identifying information, such as DNA extraction, even if that information is used only for law enforcement and deterrent purposes (thereby nullifying the \u201cspecial needs\u201d test); and (3) the physical intrusion caused by such DNA tests is slight and nearly risk-free. Put another way, the court found simply that the State\u2019s interest in deterring and prosecuting recidivist criminal acts far outweighs a convict\u2019s diminished right to privacy and the minimal intrusion caused by the extraction.\nInitially, we note that in determining whether to use the \u201cspecial needs\u201d test or the balancing test, the Garvin court simply deferred to its previous decision in Wealer and applied the balancing test without any further elaboration. Therefore, to better understand why the balancing test is the preferred approach in Illinois when considering the constitutionality of the genetic marker testing statute, we feel it necessary to examine the reasoning in Wealer.\nAt the outset, the Wealer court described the \u201cspecial needs\u201d test as an exception to the general rule that a search or seizure be conducted under the authority of a warrant. Wealer, 264 Ill. App. 3d at 11. The \u201cspecial needs\u201d exception \u201crecognizes that the warrant and probable cause requirements are not always necessary to sustain the validity of a governmental intrusion challenged on fourth amendment grounds. [Citations.]\u201d Wealer, 264 Ill. App. 3d at 11. As Wealer quoted the United States Supreme Court:\n\u201c \u2018[W]here a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual\u2019s privacy expectations against the Government\u2019s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.\u2019 (Emphasis added.) National Treasury Employees Union v. Von Raab (1989), 489 U.S. 656, 665-66, 103 L. Ed. 2d 685, 702, 109 S. Ct. 1384, 1390-91.\u201d Wealer, 264 Ill. App. 3d at 11.\nHowever, the Wealer court recognized that the overriding number of cases which employed the \u201cspecial needs\u201d test involved instances in which the court was able to identify an administrative justification independent of a law enforcement purpose. Wealer, 264 Ill. App. 3d at 12 (and cases cited therein). The Wealer court reasoned this was because the \u201cspecial needs\u201d test was rooted in the administrative search doctrine. Wealer, 264 Ill. App. 3d at 12.\nConversely, the Wealer court noted that the balancing test exception also \u201crelies primarily on the perceived willingness of the United States Supreme Court, under certain circumstances, to relax or eliminate any requirement of probable cause or individualized suspicion where the nature of the intrusion occasioned by a particular search or seizure is minimal and the government\u2019s interest significant. [Citations.]\u201d Wealer, 264 Ill. App. 3d at 14. Under that approach, Wealer noted, the courts are to balance the government\u2019s interest in carrying out the search, the extent to which the search promotes that interest, and the measure of intrusion upon a person\u2019s privacy to determine whether the search is reasonable. Wealer, 264 Ill. App. 3d at 14. In such instances, however, a court of review need not find a \u201cspecial\u201d need \u201cbeyond the normal needs of law enforcement.\u201d\nIn the end, the Wealer court opted for the balancing test, reasoning:\n\u201c[I]n the absence of a clearly articulated administrative justification independent of a law enforcement purpose, we are reluctant to extend the special needs line of cases to the present statute, which has an ostensible law enforcement purpose. Furthermore, it does not require us to identify some \u2018special\u2019 or extranormal law enforcement need \u2018beyond the normal needs of law enforcement.\u2019 \u201d Wealer, 264 Ill. App. 3d at 14.\nIn other words, the Wealer court recognized the possibility that, in some instances, the absence of a definitively defined justification for a search should not automatically render the search constitutionally invalid, such as where there exists a valid law enforcement purpose, the search somehow aids that purpose, and the search was not a size-able imposition upon the privacy rights of the individual searched. In finding those three circumstances to exist in the facts before it, the Wealer court then applied the balancing test and found that the \u201cnon-consensual extraction of blood and saliva from persons convicted of the sex offenses enumerated in section 5 \u2014 4\u20143 of the Unified Code of Corrections does not offend traditional fourth amendment principles.\u201d Wealer, 264 Ill. App. 3d at 15.\nIn oral arguments in the case at bar, defense counsel argued that Garvin\u2019s utilization of the reasoning in Wealer, in effect, contravened the intent of the United States Supreme Court in Edmond and Ferguson, where the Court utilized the \u201cspecial needs\u201d test. However, we note that nowhere in Edmond or Ferguson does the Supreme Court state that the \u201cspecial needs\u201d test should be employed to the express exclusion of the balancing test favored by both Garvin and Wealer. Moreover, we note that neither Edmond nor Ferguson condemns the suspicionless extraction of DNA of convicted felons in the absence of a \u201cspecial need\u201d separate from law enforcement concerns; Edmond dealt with random vehicle checkpoints in an effort to confiscate illegal drugs, and Ferguson dealt with whether hospitals could share pregnant women\u2019s positive drug tests with police to quell the incidence of drug-addicted newborns.\nMore recently, the Supreme Court released a related decision in United States v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497, 122 S. Ct. 587 (2001). There, the trial court sentenced the defendant to probation for a drug offense, but required the defendant to submit to a search at any time, with or without a search or arrest warrant or probable cause by any probation or law enforcement officer, as a condition of that probation. Knights, 534 U.S. at 114, 151 L. Ed. 2d at 502, 122 S. Ct. at 589. Thereafter, the police searched the defendant\u2019s apartment and found evidence, inter alia, that the defendant was engaged in a conspiracy to commit arson. Knights, 534 U.S. at 115, 151 L. Ed. 2d at 502-03, 122 S. Ct. at 589. On appeal to the Supreme Court, he argued that the police\u2019s search of his apartment violated his fourth amendment rights, where the search did not satisfy a particular \u201cspecial need\u201d of the State. Knights, 534 U.S. at 117, 151 L. Ed. 2d at 504, 122 S. Ct. at 590. In other words, defendant argued that because the search pursuant to his probation condition was not carried out pursuant to some \u201cprobationary\u201d purpose, it was carried out unconstitutionally.\nIn assessing the constitutionality of that search, the Supreme Court noted that \u201c[ijnherent in the very nature of probation is that probationers \u2018do not enjoy \u201cthe absolute liberty to which every citizen is entitled.\u201d \u2019 [Griffin v. Wisconsin, 483 U.S. 868, 874, 97 L. Ed. 2d 709, 718, 107 S. Ct. 3164, 3169 (1987)] (quoting Morrisey v. Brewer, 408 U.S. 471, 480[, 33 L. Ed. 2d 484, 494, 92 S. Ct. 2593, 2600 (1972)]).\u201d Knights, 534 U.S. at 119, 151 L. Ed. 2d at 505, 122 S. Ct. at 591. To that end, the Court also found that the search condition of the defendant\u2019s probation \u201csignificantly diminished [his] reasonable expectation of privacy.\u201d Knights, 534 U.S. at 120, 151 L. Ed. 2d at 505, 122 S. Ct. at 592. Accordingly, the Court opted not to employ the \u201cspecial needs\u201d test but, rather, sought to determine the \u201creasonableness\u201d of the search \u201c \u2018by assessing, on the one hand, the degree to which it intrude[d] upon an individual\u2019s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.\u2019 Wyoming v. Houghton, 526 U.S. 295, 300[, 143 L. Ed. 2d 408, 414, 119 S. Ct. 1297, 1300] (1999).\u201d Knights, 534 U.S. at 118-19, 151 L. Ed. 2d at 505, 122 S. Ct. at 591.\nThe Knights Court reasoned that the \u201cspecial needs\u201d test need not be used in instances where a court\u2019s holding \u201crests on ordinary Fourth Amendment analysis that considers all the circumstances of a search.\u201d Knights, 534 U.S. at 122, 151 L. Ed. 2d at 507, 122 S. Ct. at 593. The Court even went so far as to say \u201c[w]ith the limited exception of some special needs and administrative search cases, see Indianapolis v. Edmond, 531 U.S. 32, 45[, 148 L. Ed. 2d 333, 346, 121 S. Ct. 447, 456] (2000), \u2018we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.\u2019 Whren v. United States, 517 U.S. 806, 813[, 135 L. Ed. 2d 89, 98, 116 S. Ct. 1769, 1774] (1996).\u201d Knights, 534 U.S. at 122, 151 L. Ed. 2d at 507, 122 S. Ct. at 593. However, the Knights Court concluded that because the defendant\u2019s status as a probationer weighed against him in both sides of the balancing test, and because the police had some reasonable suspicion that the defendant had committed a crime, the police\u2019s warrantless search of his apartment was reasonable and, thus, constitutional. Knights, 534 U.S. at 122, 151 L. Ed. 2d at 507, 122 S. Ct. at 593. In that regard, the Court made careful note:\n\u201cWe do not decide whether the probation condition so diminished, or completely eliminated, Knights\u2019s reasonable expectation of privacy *** that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion.\u201d Knights, 534 U.S. at 120 n.6, 151 L. Ed. 2d at 505 n.6, 122 S. Ct. at 592 n.6.\nIn other words, the Knights Court was unwilling to find that the very fact that an individual was a probationer would allow the State to perform a suspicionless search without any individualized suspicion and, in turn, allow for a judicial assessment of the reasonableness of a probationer\u2019s search without employing \u201cspecial needs\u201d analysis.\nMore recently, in People v. Lampitok, 207 Ill. 2d 231 (2003), the Illinois Supreme Court confronted the issue of whether the suspicion-less search of the motel room of probationer Kitty Bircher, whose probation was also conditioned upon a search condition, violated her fourth amendment rights. Lampitok, 207 Ill. 2d at 239. Discussing footnote 6 of Knights, the Lampitok court remarked that \u201c[t]he [Knights] Court recognized a correlation between the terms of the probation search condition and the degree of the probationer\u2019s expectation of privacy, which in turn influences the level of individualized suspicion required to justify a search.\u201d Lampitok, 207 Ill. 2d at 251. In that regard, the court noted that because Bircher had agreed to a \u201cmore limited\u201d probation search condition than Knights, \u201cher expectation of privacy was not as diminished, and more individualized suspicion was required by the fourth amendment than would have been required for Knights.\u201d Lampitok, 207 Ill. 2d at 251. Noting that the Knights court never decided the minimum level of individualized suspicion necessary under the fourth amendment to perform a suspicionless search on Knights, it concluded that its comparison of Knights\u2019s expectations of privacy relative to Bircher\u2019s \u201clends support to the assertion that a probation search of Bircher upon no individualized suspicion would be constitutionally unreasonable.\u201d Lampitok, 207 Ill. 2d at 252.\nIn other words, the Illinois Supreme Court viewed Bircher\u2019s relative expectation of privacy as a determining factor for whether the police\u2019s search of her motel room needed to be performed attendant to some individualized suspicion to meet the requirements of the fourth amendment. Based on that analysis, we conclude, under Lampitok, that if a probationer has a relatively low expectation of privacy \u2014 say, as compared to the defendant in Knights \u2014 it is still entirely reasonable within the ambit of the fourth amendment for a search to be performed on that person without any individualized suspicion. But cf. Lampitok, 207 Ill. 2d at 253 (\u201c[e]ven though the Supreme Court has not yet directly addressed [the issue of the minimum level of individualized suspicion that would satisfy the fourth amendment], we note that the clear majority of federal courts of appeals also require reasonable suspicion to support a probation search\u201d).\nIn the present case, therefore, we must assess the defendant\u2019s expectation of privacy in the retention of his DNA to determine, under Lampitok, whether any modicum of individualized suspicion is necessary to extract his DNA. Making a similar determination, the Wealer court drew upon a decision of the Federal Court of Appeals for the Fourth Circuit, which likened DNA extraction to the taking of fingerprints:\n\u201c \u2018[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes. This becomes readily apparent when we consider the universal approbation of \u201cbooking\u201d procedures that are followed for every suspect arrested for a felony, whether or not the proof of a particular suspect\u2019s crime will involve the use of fingerprint identification. *** While we do not accept even this small level of intrusion for free persons without Fourth Amendment constraint [citation], the same protections do not hold true for those lawfully confined to the custody of the state.\u2019 \u201d Wealer, 264 Ill. App. 3d at 17, quoting Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992).\nThis is even made more clear by the Lampitok court\u2019s implication that federal courts of appeals have found only warrantless suspicionless searches of a person\u2019s body to be constitutionally reasonable, as opposed to searches of a person\u2019s home, where \u201ca search of a person\u2019s home, whether consisting of one room or an entire house, cannot be characterized as a minor invasion of privacy. Chimel v. California, 395 U.S. 752, 766 & n.12, 23 L. Ed. 2d 685, 695-96 & n.12, 89 S. Ct. 2034, 2041-42 & n.12 (1969).\u201d Lampitok, 207 Ill. 2d at 254.\nLike the court in Wealer and Murray, we also think that the defendant here, as a detainee of the State, has virtually no privacy interest in the retention of his DNA. Accordingly, we conclude that the extraction of his DNA, without any individualized suspicion, could still be constitutionally reasonable under Lampitok, without having to engage in a \u201cspecial needs\u201d analysis.\nMost recently, in United States v. Kincade, 379 F.3d 813 (9th Cir. 2004), the Ninth Circuit Federal Court of Appeals also discussed the potential impact of footnote 6 in Knights:\n\u201cThe only rational interpretation of Knights\u2019s express reservation is that \u2014 without regard to the Court\u2019s prior decisions in Edmond and Ferguson \u2014 it remains entirely an open question whether suspicionless searches of conditional releasees pass constitutional muster when such searches are conducted for law enforcement purposes.\u201d (Emphasis in original.) Kincade, 379 F.3d at 830.\nThereafter, the Kincade court noted that while other circuits and states were divided on the issue of whether to employ a \u201cspecial needs\u201d analysis (Kincade, 379 F.3d at 830-31), its own 1995 decision in Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), upheld the constitutionality of a state DNA collection statute by applying a pure totality of the circumstances analysis. Kincade, 379 F.3d at 831-32. Accordingly, the court followed its own precedent in Rise and held that Rise\u2019s reliance upon a totality of the circumstances test \u201cboth comports with the Supreme Court\u2019s recent precedents and resolves this appeal in concert with the requirements of the Fourth Amendment.\u201d Kincade, 379 F.3d at 832.\nIn so holding, the Kincade court reaffirmed its decision in Rise by distinguishing both Edmond and Ferguson:\n\u201cAs we have stressed, neither Edmond nor Ferguson condemns suspicionless searches of conditional releasees in the absence of a demonstrable \u2018special need\u2019 apart from law enforcement. Indeed, Ferguson explicitly distinguished itself from cases addressing the constitutionality of parole and probation searches \u2014 thus recognizing a constitutionally significant distinction between searches of conditional releasees and searches of the general public, and laying the framework for a jurisprudentially sound analytic division between these two classes of suspicionless searches. See Ferguson, 532 U.S. at 79 n.15, 121 S. Ct. 1281 (\u2018[W]e agree with petitioners that Griffin is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large.\u2019) (citing Griffin, 483 U.S. at 874-75, 107 S. Ct. 3164). And Knights, of course, affirmed the post -Edmond, post -Ferguson possibility that conditional releasees\u2019 diminished expectations of privacy may be sufficient to justify the judicial assessment of a parole or probation search\u2019s reasonableness outside the strictures of special needs analysis. Knights, 534 U.S. 117-18, 119-20 & n.6, 122 S. Ct. 587.\u201d Kincade, 379 F.3d at 832.\nIn the present case, we note that two districts of this court have already upheld the constitutionality of the predecessor sex offender' statute by using a pure totality of the circumstances test. See Wealer, 264 Ill. App. 3d 6 (2nd Dist. 1994); People v. Calahan, 272 Ill. App. 3d 293 (1st Dist. 1995). Like the Kincade court, we agree that where neither Ferguson nor Edmond has spoken to the issue of whether the State needs to demonstrate a special need to perform suspicionless searches on convicted felons, and where Knights \u201centirely\u201d leaves that question unanswered, we too follow our own existing precedent in Wealer and Calahan and employ the totality of the circumstances test.\nTurning to the actual analysis, we note that the physical intrusion imposed by the testing mandated under section 5 \u2014 4\u20143 previously has been found to be insubstantial and to pose no threat to the health or safety of the individual tested. Wealer, 264 Ill. App. 3d at 16, citing People v. Adams, 149 Ill. 2d 331, 346 (1992) (statute mandating that persons convicted of certain offenses undergo blood testing for presence of HIV). Indeed, the Garvin court pointed out the Supreme Court\u2019s recognition that a blood draw is not an \u201c \u2018unduly extensive imposition\u2019 [citation]\u201d and \u201c \u2018would not be considered offensive by even the most delicate\u2019 [citation].\u201d Garvin, 349 Ill. App. 3d at 856. Therefore, the use of oral or nasal swabs to obtain similar DNA would have even less of an intrusive effect.\nThereafter, it becomes necessary to balance the government\u2019s interest in collecting DNA samples from potential recidivists, the degree to which section 5 \u2014 4\u20143(a)(3.5) furthers that interest, and the extent to which that search intrudes on a criminal\u2019s privacy rights.\nWe agree with the State that it has a legitimate interest in deterring and prosecuting criminals, as well as in establishing the identity of felony offenders where traditional methods of identification might prove otherwise inadequate or inconclusive. Moreover, in addition to solving future crimes, the DNA testing scheme is related to the State\u2019s interest in deterring and prosecuting recidivist acts because it provides an improved technological method for identifying and eliminating potential suspects. See Garvin, 349 Ill. App. 3d at 855, citing Wealer, 264 Ill. App. 3d at 17. While defendant asserts that the nexus is too tentative, as nonsexual offenders rarely leave behind traces of DNA evidence at the crime scene, we think that defendant\u2019s approach ignores the many possibilities which do in fact exist: the burglar who sneezes, cuts his finger when breaking into a home, or sips from a homeowner\u2019s prized bottle of 1990 Dom Perignon; the mugger who gets some of his blood on his victims\u2019 shirts; the crack dealer who hides his wares in his mouth, etc. Invariably, therefore, there are instances \u2014 quite possibly many instances \u2014 in which a nonsexual offender may leave remnants of his genetic makeup. Because section 5 \u2014 4\u20143(a) (3.5) would ultimately serve to identify the culprits of such offenses, we find the State\u2019s interest in obtaining these samples to be incontrovertible.\nRecently, a First District decision affirmed the constitutionality of the drawing of blood pursuant to the statute and applied the balancing test as its standard. People v. Hall, 352 Ill. App. 3d 537 (2004).\nFinally, we also agree with Garvin that the privacy interest that a felony offender has in his or her identity is minimal or, at the very least, reduced. Garvin, 349 Ill. App. 3d at 855, citing Griffin, 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164; Hudson, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (held that convicted persons lose some rights to personal privacy). And as noted above, we agree with Weal-er\u2019s adoption of Murray\u2019s determination that extracting DNA from criminals is tantamount to the taking of their fingerprints. Wealer, 264 Ill. App. 3d at 17, quoting Murray, 962 F.2d at 306.\nIn the end, because we, like the courts in Wealer, Garvin, and Hall think that the extraction of a convicted felon\u2019s DNA under section 5 \u2014 4\u20143(a) (3.5) is the functional equivalent to fingerprinting \u2014 which is another minimal intrusion upon a diminished privacy interest \u2014 we hold that a warrantless and suspicionless blood extraction of Illinois felony offenders, as described in section 5 \u2014 4\u20143(a)(3.5), does not violate the fourth amendment prohibition against unreasonable searches and seizures.\nFor the foregoing reasons, we affirm the defendant\u2019s conviction and sentence.\nAffirmed.\nIn his appellate brief, defendant challenges the constitutionality of subsection (a \u2014 5) of section 5 \u2014 4\u20143. In fact, the order in which the trial court requested a sample of the defendant\u2019s blood for DNA analysis was entered simply pursuant to section 5 \u2014 4\u20143, but did not list any specific subsection therein. However, we find the language in subsection (a)(3.5) controls the facts at issue here, where subsection (a)(3.5) mandatorily charges the trial court with the duty to order all convicted felons to provide a blood sample for DNA testing. Conversely, subsection (a \u2014 5) only permissively grants discretion to the trial court to determine whether to order a defendant to provide such a sample. Accordingly, subsection (a \u2014 5) could only be utilized \u2014 if at all \u2014 to the total exclusion of every other mandatory subsection listed under section 5 \u2014 4\u2014 3(a), including section 5 \u2014 4\u20143(a)(3.5). 730 ILCS 5/5 \u2014 4\u20143(a)(a\u20145), (a)(3.5) (West 2002). Therefore, because the defendant in the case at bar is a convicted felon, and because the trial court was required to order the defendant to provide a blood sample under subsection (a)(3.5), we limit our review today to the constitutionality of section 5 \u2014 4\u20143(a)(3.5). 730 ILCS 5/5 \u2014 4\u20143(a)(3.5) (West 2002).\nGarvin, we note, couched its holding in terms of finding all of section 5 \u2014 4\u20143 to be constitutional, and did not focus upon or specify any particular subsection therein. We, however, wish to emphasize that our holding today does not cover any other section than section 5 \u2014 4\u20143(a)(3.5).", "type": "majority", "author": "JUSTICE GREIMAN" }, { "text": "JUSTICE THEIS,\nspecially concurring:\nI agree with the result reached in this case, but because I would have analyzed the DNA issue differently, I specially concur.\nIn Justice Greiman\u2019s opinion, he applies a totality of the circumstances analysis and a balancing test when determining whether the suspicionless search of a convicted felon to obtain his DNA ran afoul of the fourth amendment. In doing so, he relies on Wealer. The Wealer court, citing Sitz, noted that the balancing test approach \u201crelies primarily on the perceived willingness of the United States Supreme Court, under certain circumstances, to relax or eliminate any requirement of probable cause or individualized suspicion where the nature of the intrusion occasioned by a particular search or seizure is minimal and the government\u2019s interest significant.\u201d Wealer, 264 Ill. App. 3d at 14. The Wealer court decided to follow this balancing test although it noted that the Supreme Court had not applied this approach outside the context of police stops of motorists on public highways. Wealer, 264 Ill. App. 3d at 14. Because the Supreme Court in Ferguson recently distinguished its previous cases involving roadblocks such as Sitz and did not apply the balancing test in a case involving a search of a person\u2019s body, I write specially.\nFirst, I note that while the United States Supreme Court has yet to address this exact issue, many courts around the country have found the suspicionless search of a convicted felon to obtain his DNA to be constitutional. See Garvin, 349 Ill. App. 3d at 854 (compiling a list of federal and state cases upholding the constitutionality of this search). While these courts have uniformly reached the same constitutional result, they contain no uniform analysis and frequently include numerous dissents and concurrences.\nThe Supreme Court has held that a search or seizure is \u201cordinarily unreasonable in the absence of individualized suspicion of wrongdoing.\u201d Edmond, 531 U.S. at 37, 148 L. Ed. 2d at 340, 121 S. Ct. at 451. The Court has recognized only limited circumstances in which the usual rule did not apply, such as where the program was designed to serve \u201cspecial needs, beyond the normal need for law enforcement.\u201d Edmond, 531 U.S. at 37, 148 L. Ed. 2d at 340, 121 S. Ct. at 451, citing Vernonia School District 47J v. Acton, 515 U.S. 646, 664-65, 132 L. Ed. 2d 564, 582, 115 S. Ct. 2386, 2396 (1995) (random drug testing for student-athletes); Von Raab, 489 U.S. at 679, 103 L. Ed. 2d at 710-11, 109 S. Ct. at 1398 (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner, 489 U.S. at 633-34, 103 L. Ed. 2d at 670-71, 109 S. Ct. at 1422 (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations). Additionally, the Court has also allowed searches for certain administrative purposes without particularized suspicion, provided that those searches were appropriately limited. See, e.g., Burger, 482 U.S. at 702-04, 96 L. Ed. 2d at 613-15, 107 S. Ct. at 2643-44 (warrantless administrative inspection of premises of \u201cclosely regulated\u201d business). Lastly, the Supreme Court has upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens (United States v. Martinez-Fuerte, 428 U.S. 543, 566-67, 49 L. Ed. 2d 1116, 1133-34, 96 S. Ct. 3074, 3087 (1976)) and at a sobriety checkpoint aimed at removing drunk drivers from the road (Sitz, 496 U.S. at 455, 110 L. Ed. 2d at 423, 110 S. Ct. at 2488).\nIn his opinion, Justice Greiman cites the recent Supreme Court case of Ferguson, but does not rely on it. While Ferguson presents a different issue from that in the present case, it involves the search of a person, as does this case, and I would follow its analysis here. In Ferguson, the Court addressed whether a state hospital\u2019s action of testing urine samples of pregnant women for narcotics without their consent or individualized suspicion for law enforcement purposes was an unreasonable search. Ferguson, 532 U.S. at 69-70, 149 L. Ed. 2d at 211, 121 S. Ct. at 1284. In analyzing this issue, the Court stated that Ferguson differed from \u201cthe handful of seizure cases in which we have applied a balancing test to determine Fourth Amendment reasonableness,\u201d citing Sitz and Martinez-Fuerte. Ferguson, 532 U.S. at 83 n.21, 149 L. Ed. 2d at 220 n.21, 1121 S. Ct. at 1291 n.21. The Court reasoned that Sitz and Martinez-Fuerte involved roadblock seizures rather than \u201c \u2018the intrusive search of the body or the home.\u2019 \u201d Ferguson, 532 U.S. at 83 n.21, 149 L. Ed. 2d at 220 n.21, 121 S. Ct. at 1291 n.21, quoting Edmond, 531 U.S. at 55, 148 L. Ed. 2d at 352, 121 S. Ct. at 461 (Rehnquist, C.J., dissenting). The Court also noted that, \u201c \u2018[W]e deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection.\u2019 \u201d Ferguson, 532 U.S. at 83 n.21, 149 L. Ed. 2d at 220 n.21, 121 S. Ct. at 1291 n.21, quoting Martinez-Fuerte, 428 U.S. at 561, 49 L. Ed. 2d at 1130, 96 S. Ct. at 3084. Lastly, the Court explained that it had \u201cexplicitly distinguished the cases dealing with checkpoints from those dealing with \u2018special needs\u2019 \u201d in Sitz. Ferguson, 532 U.S. at 83 n.21, 149 L. Ed. 2d at 220 n.21, 121 S. Ct. at 1291 n.21.\nRather, the Ferguson Court applied the \u201cspecial needs\u201d analysis, relying on four previous cases where it had considered whether comparable drug tests \u201c \u2018fit within the closely guarded category of constitutionally permissible suspicionless searches.\u2019 \u201d Ferguson, 532 U.S. at 77, 149 L. Ed. 2d at 216, 121 S. Ct. at 1288, quoting Chandler v. Miller, 520 U.S. 305, 309, 137 L. Ed. 2d 513, 520, 117 S. Ct. 1295, 1298 (1997). See also Vernonia, 515 U.S. at 664-65, 132 L. Ed. 2d at 582, 115 S. Ct. at 2396; Von Raab, 489 U.S. at 679, 103 L. Ed. 2d at 710-11, 109 S. Ct. at 1398; Skinner, 489 U.S. at 633-34, 103 L. Ed. 2d at 670-71, 109 S. Ct. at 1422. In each of those cases, the Court \u201cemployed a balancing test that weighed the intrusion on the individual\u2019s interest in privacy against the \u2018special needs\u2019 that supported the program.\u201d Ferguson, 532 U.S. at 78, 149 L. Ed. 2d at 216, 121 S. Ct. at 1288. However, before conducting this balancing test, the Court first determined whether the need in question was \u201cspecial.\u201d In making that determination, the Ferguson Court carried out a \u201cclose review\u201d of the scheme at issue and considered all of the available evidence to determine the relevant primary purpose of the program. Ferguson, 532 U.S. at 81, 149 L. Ed. 2d at 218, 121 S. Ct. at 1290. The Court stated that in each of its prior drug cases, the \u201cspecial need\u201d that was advanced as a justification for the absence of a warrant or individualized suspicion \u201cwas one divorced from the State\u2019s general interest in law enforcement.\u201d Ferguson, 532 U.S. at 79, 149 L. Ed. 2d at 217, 121 S. Ct. at 1289. After reviewing the evidence in Ferguson, the Court found that the immediate objective of the searches was \u201cto generate evidence for law enforcement purposes in order to reach\u201d the ultimate goal of moving pregnant women into substance abuse treatment and away from drugs. (Emphasis in original.) Ferguson, 532 U.S. at 83, 149 L. Ed. 2d at 219-20, 121 S. Ct. at 1291.\nThe Court then held that given that the primary purpose of the hospital\u2019s program was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, \u201cthis case simply does not fit within the closely guarded category of \u2018special needs.\u2019 \u201d Ferguson, 532 U.S. at 84, 149 L. Ed. 2d at 220, 121 S. Ct. at 1292. Because it determined that there was no \u201cspecial need\u201d to support the hospital\u2019s program, the Court struck down the program as unconstitutional without conducting the balancing test described above.\nAdditionally, the United States Supreme Court has stated that \u201c[a] State\u2019s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents \u2018special needs\u2019 beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.\u201d (Emphasis added.) Griffin, 483 U.S. at 873-74, 97 L. Ed. 2d at 717, 107 S. Ct. at 3168. Based on both Griffin and Ferguson, I would find that this court must use the \u201cspecial needs\u201d analysis in addressing the constitutionality of the DNA statute at issue here.\nFirst, the court should determine the primary purpose behind the program in question, here, the suspicionless search of a convicted felon to obtain his DNA as provided for under section 5 \u2014 4\u20143(a)(3.5). If that purpose is merely to serve the ordinary needs of law enforcement or the general interest in crime control, this purpose will not fit within the narrow category of \u201cspecial needs\u201d cases. See Ferguson, 532 U.S. at 79-81, 149 L. Ed. 2d at 217-18, 121 S. Ct. at 1289-90. If, however, the primary purpose of the program is something other than the State\u2019s general interest in law enforcement, Ferguson indicates that the program may fall within the \u201cspecial needs\u201d exception. Only after determining that the primary purpose of the DNA collection program involved in this case is \u201cdivorced from\u201d the State\u2019s general interest in law enforcement and that the purpose falls within the \u201cspecial needs\u201d exception can this court apply a balancing test.\nI would agree with the Seventh Circuit Court of Appeals that the primary purpose of the DNA law at issue here was \u201cnot to search for \u2018evidence\u2019 of criminal wrongdoing,\u201d but was \u201cto obtain reliable proof of a felon\u2019s identity.\u201d Green v. Berge, 354 F.3d 675, 678 (7th Cir. 2004). Given that the primary purpose of the DNA collection statute in Illinois is not merely to serve the ordinary needs of law enforcement, it falls within the category of \u201cspecial needs.\u201d\nNext, I believe this court must weigh the intrusion on the individual\u2019s interest in privacy against the \u201cspecial needs\u201d that supported the program. Ferguson, 532 U.S. at 78, 149 L. Ed. 2d at 216, 121 S. Ct. at 1288. Here, the individuals subject to the mandatory collection of DNA are convicted felons, not unsuspecting pregnant women in a hospital as in Ferguson. The \u201cinmates subject to testing because they are in custody! ] are already \u2018seized.\u2019 \u201d Green, 354 F.3d at 679. Further, the collection of DNA only minimally intrudes into the convicted felons\u2019 privacy, especially considering that these individuals enjoy lesser privacy interests than the average person after they have been convicted of a crime and are incarcerated.\nAdditionally, the practice of collecting DNA from a blood sample is relatively noninvasive and does not \u201cconstitute an unduly extensive imposition on an individual\u2019s personal privacy and bodily integrity.\u201d Winston, 470 U.S. at 762, 84 L. Ed. 2d at 670, 105 S. Ct. at 1617. Unlike the pregnant women seeking prenatal care in Ferguson, convicted felons are not simply receiving medical treatment and know the purpose and potential uses of the DNA test results. Green, 354 F.3d at 678-79. Moreover, DNA is the most reliable evidence of identification \u2014 stronger even than fingerprints or photographs. Green, 354 F.3d at 679. Thus, after balancing the individuals\u2019 interest in privacy against the State\u2019s \u201cspecial need\u201d to obtain reliable proof of a felon\u2019s identity, I would agree with Justice Greiman that the suspicionless search of a convicted felon to obtain his DNA does not violate the fourth amendment.\nFinally, I note that Justice Greiman\u2019s opinion relies on Knights in support of its analysis that the totality of the circumstances approach applies here. However, Knights is inapplicable to the present case because the Knights Court analyzed only whether a search conducted pursuant to the defendant\u2019s probation condition and supported by reasonable suspicion satisfied the fourth amendment. The Knights Court expressly stated that it need not address the constitutionality of a suspicionless search \u201cbecause the search in this case was supported by reasonable suspicion.\u201d Knights, 534 U.S. at 120 n.6, 151 L. Ed. 2d at 505 n.6, 122 S. Ct. at 592 n.6. Thus, I do not believe that Knights provides any insight into whether the DNA statute at issue is constitutional.\nAccordingly, I concur with the result of the majority in affirming this case.\nWhile Green interprets the Wisconsin mandatory DNA statute, our Illinois statute is similar to and operates in the same manner as the Wisconsin statute, and thus, Green\u2019s analysis is applicable here.", "type": "concurrence", "author": "JUSTICE THEIS," }, { "text": "JUSTICE QUINN,\nspecially concurring.\nI completely concur with the decision reached in this opinion. I write separately because I agree with the Fourth Circuit of the United States Court of Appeals that neither the \u201cspecial needs\u201d exception to suspicionless searches nor the \u201cbalancing test\u201d applies to convicted felons who are compelled by court order at sentencing to provide a sample of their blood, saliva or tissue for DNA analysis. See Jones v. Murray, 962 F.2d 302, 307 n.2 (4th Cir. 1992).\nIn the instant case, defendant was ordered at the time of sentencing to supply a specimen of blood for analysis and categorizing into genetic marker groupings pursuant to section 5 \u2014 4\u20143, \u201cPersons convicted of, or found delinquent for, certain offenses or institutionalized as sexually dangerous; specimens; genetic marker groups.\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 4\u20143 (West 2002). In pertinent part, section 5 \u2014 4\u20143(a)(3.5) provides:\n\u201cAny person *** convicted or found guilty of any offense classified as a felony under Illinois law *** shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section, provided such person is:\n(3.5) convicted or found guilty of any offense classified as a felony under Illinois law *** on or after the effective date of this amendatory Act of the 92nd General Assembly [August 22, 2002.]\u201d 730 ILCS 5/5 \u2014 4\u20143(a)(3.5) (West 2002).\n\u201c730 ILCS\u201d is the Unified Code of Corrections. Chapter 5 of the Unified Code of Corrections is entitled \u201cSENTENCING.\u201d Article 4 of chapter 5 is also entitled \u201cSENTENCING.\u201d Clearly then, at least under Illinois\u2019 statutory scheme, court orders entered pursuant to section 5 \u2014 4\u20143(a)(3.5) are entered as a part of a convicted felon\u2019s sentence. Consequently, a court order entered pursuant to section 5 \u2014 4\u20143(a)(3.5) may only be entered after the defendant has been found guilty of a felony beyond a reasonable doubt. These requirements (a felony conviction and a court order) provide substantially more protection to defendants than do the requirements of a search warrant, or the requirements of any \u201cspecial needs\u201d exception (see City of Indianapolis v. Edmond, 531 U.S. 32, 37, 148 L. Ed. 2d 333, 340-41, 121 S. Ct. 447, 451-52 (2000); Ferguson v. City of Charleston, 532 U.S. 67, 84, 149 L. Ed. 2d 205, 220, 121 S. Ct. 1281, 1292 (2001); Green v. Berge, 354 F.3d 675, 677-78 (7th Cir. 2004)), balancing test (see People v. Wealer, 264 Ill. App. 3d 6, 14, 636 N.E.2d 1129 (1994); People v. Garvin, 349 Ill. App. 3d 845, 855, 812 N.E.2d 773, 782 (2004)), or consideration of the \u201ctotality of the circumstances\u201d (see People v. Lampitok, 207 Ill. 2d 231, 249, 798 N.E.2d 91 (2003)).\nIn Lampitok, our supreme court reviewed the holdings in United States v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497, 122 S. Ct. 587 (2001), and Griffin v. Wisconsin, 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987), and applied the totality of the circumstances test to determine whether a search of a probationer\u2019s motel room was reasonable at its inception and in its scope under the fourth amendment. Lampitok, 207 Ill. 2d at 249. The supreme court concluded that under the facts of that case, \u201ca probation search of [the probationer] upon no individualized suspicion would be constitutionally unreasonable.\u201d Lampitok, 207 Ill. 2d at 252.\nGriffin, Knights and Lampitok all involved searches of probationers\u2019 residences long after the individual probationer was placed on probation. Similarly, the court in United States v. Kincade, 379 F.3d 813, 839-40 (9th Cir. 2004) (en banc), found constitutional the DNA Analysis Backlog Act of 2000\u2019s (42 U.S.C. \u00a7 14135a(c)(l) through (c)(2) (2000)) requirement that certain federal offenders who were on parole, probation or supervised release submit to compulsory DNA profiling even though the offenders may have been sentenced years previously. In the instant case, the court order directing defendant to supply a blood sample was entered at the time of sentencing and it was contemplated that this would be a one-time occurrence which would be carried out immediately. This order is much less onerous than the court orders at issue in Griffin, Knights, and Lampitok, all of which ostensibly deprived the probationers of any right to complain of any search that could take place anywhere or at any time, subject only to the whim or suspicion of a probation officer. Also, the instant order was entered at the time of sentencing, unlike the federal statute\u2019s compulsory DNA profiling which was imposed on defendants years after their sentences were imposed.\nIn Hudson v. Palmer, 468 U.S. 517, 524, 82 L. Ed. 2d 393, 402, 104 S. Ct. 3194, 3199 (1984), the Supreme Court considered \u201cwhether the Fourth Amendment applies within a prison cell.\u201d The Hudson Court first held: \u201cThe applicability of the Fourth Amendment turns on whether \u2018the person invoking its protection can claim a \u201cjustifiable,\u201d a \u201creasonable,\u201d or a \u201clegitimate expectation of privacy\u201d that has been invaded by government action.\u2019 \u201d Hudson, 468 U.S. at 525, 82 L. Ed. 2d at 402, 104 S. Ct. at 3199, quoting Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 226, 99 S. Ct. 2577, 2580 (1979).\nApplying this standard to the issue before it, the Supreme Court held:\n\u201cNotwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.\u201d Hudson, 468 U.S. at 525-26, 82 L. Ed. 2d at 402-03, 104 S. Ct. at 3200.\nThe Court explained that, in addition to the \u201cinstitutional needs and objectives\u201d of prison facilities, chief among which is internal security, the restrictions and retraction of rights from prisoners \u201calso serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.\u201d Hudson, 468 U.S. at 524, 82 L. Ed. 2d at 401-02, 104 S. Ct. at 3199.\nI believe that the analysis employed in Hudson is more appropriately applicable to the instant case than any of the other Supreme Court cases cited by either the State or defendant. A convicted felon cannot claim a \u201cjustifiable,\u201d \u201creasonable\u201d or \u201clegitimate\u201d expectation of privacy in his blood, saliva or tissue when, at sentencing, the circuit court orders that the convicted person submit a sample of the same for purposes of DNA profiling. This is because (1) section 5 \u2014 4\u20143(a)(3.5) provides more than adequate protection to the rights of convicted felons; (2) the taking of blood, saliva or tissue samples pursuant to section 5 \u2014 4\u20143(a) (3.5) is comparable to fingerprinting; and (3) the taking of such samples strongly serves the recognized purpose of deterrence. Consequently, I agree with Justices Greiman and Theis and I would also affirm the constitutionality of section 5 \u2014 4\u20143(a)(3.5).\nAs to defendant\u2019s expressed concern that the information gathered from defendant\u2019s DNA could be misused, subsection 5 \u2014 4\u20143(f) provides that the genetic marker grouping analysis information obtained from the samples submitted by convicted individuals shall be confidential and may only be released to peace officers and prosecuto-rial agencies. 730 ILCS 5/5 \u2014 4\u20143(f) (West 2002). Subsection (f) provides that the information attained from the samples shall be maintained in a single State databank, which may be uploaded into a national databank. These databanks serve the same purpose as does the National Crime Information Center\u2019s (NCIC) fingerprint databank, but with significantly more protection for the individuals who must submit samples for DNA profiling. The NCIC fingerprint databank contains millions of sets of fingerprints which are taken from ar-restees. In addition to verifying the identification of the arrestee, the fingerprint databank allows the police to quickly compare the fingerprints of arrestees with fingerprints recovered in connection with unsolved criminal cases. Section 5 \u2014 4\u20143(a) (3.5) does not apply to mere arrestees. Rather, it applies only to convicted felons who are ordered at sentencing to submit samples for DNA profiling.\nFor the above-stated reasons I strongly concur.", "type": "concurrence", "author": "JUSTICE QUINN," } ], "attorneys": [ "Michael J. Pelletier and Brett C. Zeeb, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Sally Dilgart, John E. Nowak, and Paul A. Ruscheinski, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOB RAMOS, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201403\u20142963\nOpinion filed September 30, 2004.\nTHEIS, J., specially concurring.\nQUINN, J., specially concurring.\nMichael J. Pelletier and Brett C. Zeeb, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Sally Dilgart, John E. Nowak, and Paul A. Ruscheinski, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0133-01", "first_page_order": 149, "last_page_order": 178 }