People v. Hunter

831 N.E.2d 1192, 358 Ill. App. 3d 1085, 294 Ill. Dec. 867, 2005 Ill. App. LEXIS 673
CourtAppellate Court of Illinois
DecidedJune 30, 2005
DocketNo. 4-03-0957
StatusPublished
Cited by1 cases

This text of 831 N.E.2d 1192 (People v. Hunter) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hunter, 831 N.E.2d 1192, 358 Ill. App. 3d 1085, 294 Ill. Dec. 867, 2005 Ill. App. LEXIS 673 (Ill. Ct. App. 2005).

Opinion

JUSTICE MYERSCOUGH

delivered the opinion of the court:

In September 2003, following a bench trial, the trial court found defendant, Eugene Hunter, guilty of possession of a substance containing cocaine (720 ILCS 570/402(c) (West 2002)). In November 2003, the court sentenced defendant to 24 months of probation with various terms and conditions. One condition was that defendant submit to genetic testing pursuant to section 5 — 4—3(a)(3.5) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5 — 4—3(a)(3.5) (West 2002) (as amended by Pub. Act 92 — 829, § 5, eff. August 22, 2002 (2002 Ill. Legis. Serv. 2775, 2776 (West)))), at his own expense, and pay a $200 analysis fee. Defendant appeals, arguing (1) the compulsory extraction and perpetual storing of defendant’s deoxyribonucleic acid (DNA) violates his right to be free from unreasonable searches and seizures under the United States and Illinois Constitutions and (2) the court lacked the authority to order defendant to pay the cost of the DNA collection in addition to the $200 analysis fee and such order must be vacated. We affirm in part, reverse in part, and remand with directions.

I. ANALYSIS

A. Constitutionality of Section 5 — 4—3(a)(3.5) of the Unified Code

Defendant argues that the ordered extraction and analysis of his DNA pursuant to section 5 — 4—3 of the Unified Code (730 ILCS 5/5— 4 — 3 (West 2002) (as amended by Pub. Act 92 — 829, § 5, eff. August 22, 2002 (2002 Ill. Legis. Serv. 2775, 2775 (West)))), violates his right to be free from unreasonable searches and seizures under the fourth amendment of the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6). Because the fourth amendment of the United States Constitution provides the same level of protection as the search and seizure provision in article I, section 6, of the Illinois Constitution, we limit our analysis to the United States Constitution. See, e.g., People v. Wealer, 264 Ill. App. 3d 6, 18, 636 N.E.2d 1129, 1137 (1994). In addition, while defendant challenges the statute as a whole, he was ordered to submit to DNA testing pursuant to section 5 — 4—3(a)(3.5) of the Unified Code (730 ILCS 5/5 — 4—3(a)(3.5) (West 2002) (as amended by Pub. Act 92 — 829, § 5, eff. August 22, 2002 (2002 Ill. Legis. Serv. 2775, 2776 (West)))). Therefore, we limit our holding to that section. See, e.g., People v. Ramos, 353 Ill. App. 3d 133, 145 n.2, 817 N.E.2d 1110, 1122 n.2 (2004).

Although defendant did not challenge the constitutionality of section 5 — 4—3(a)(3.5) of the Unified Code (730 ILCS 5/5 — 4— 3(a)(3.5) (West 2002) (as amended by Pub. Act 92 — 829, § 5, eff. August 22, 2002 (2002 Ill. Legis. Serv. 2775, 2776 (West)))) in the trial court, a constitutional challenge to a criminal statute may be raised at any time. Ramos, 353 Ill. App. 3d at 142, 817 N.E.2d at 1119. Whether section 5 — 4—3(a)(3.5) is constitutional is a question of law subject to de novo review. Ramos, 353 Ill. App. 3d at 142, 817 N.E.2d at 1119.

As originally enacted, section 5 — 4—3 of the Unified Code required that persons convicted of certain sexual offenses submit blood and saliva samples to the Illinois Department of State Police for analysis and categorization. Ill. Rev. Stat. 1991, ch. 38, par. 1005— 4 — 3. A challenge to the constitutionality of this statute on the ground that it violated the fourth amendment of the United States Constitution (U.S. Const., amend. IV) failed in Wealer, 264 Ill. App. 3d at 17-18, 636 N.E.2d at 1137 (holding that suspicionless DNA sampling of convicted sex offenders did not violate the fourth amendment).

In August 2002, the legislature amended section 5 — 4—3(a) of the Unified Code to mandate DNA samples from all persons “convicted or found guilty of any offense classified as a felony under Illinois law” regardless of the sentence imposed. 730 ILCS 5/5 — 4—3(a) (West 2002) (as amended by Pub. Act 92 — 829, § 5, eff. August 22, 2002 (2002 Ill. Legis. Serv. 2775, 2775 (West))). Challenges to this version of the statute on constitutional grounds have failed. See, e.g., People v. Butler, 354 Ill. App. 3d 57, 68, 819 N.E.2d 1133, 1142 (2004) (First District); People v. Garvin, 349 Ill. App. 3d 845, 856, 812 N.E.2d 773, 783 (2004) (Second District), appeal allowed, 212 Ill. 2d 541, 824 N.E.2d 287 (2004); People v. Chamberlain, 354 Ill. App. 3d 1070, 1076, 822 N.E.2d 914, 920 (2005) (Third District). In fact, all 50 states and the District of Columbia have enacted genetic-marker-testing statutes. Garvin, 349 Ill. App. 3d at 853-54, 812 N.E.2d at 781 (citing statutes). All reported constitutional challenges to those statutes have been rejected. Garvin, 349 Ill. App. 3d at 854, 812 N.E.2d at 781-82 (citing cases).

The parties agree that the extraction and testing of blood and/or saliva samples implicate the fourth amendment. The fourth amendment of the United States Constitution (U.S. Const., amend. IV) guarantees:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

While defendant primarily focuses on the extraction of blood, we will assume that if the extraction of blood withstands the constitutional challenge, the taking of a saliva sample would also be upheld. See, e.g., Wealer, 264 Ill. App. 3d at 9-10, 636 N.E.2d at 1132.

Illinois courts have generally taken two approaches when analyzing the constitutionality of section 5 — 4—3 of the Unified Code under the fourth amendment. The majority of Illinois courts have favored the balancing or “totality of the circumstances” test. Chamberlain, 354 Ill. App. 3d at 1076, 822 N.E.2d at 919 (citing cases). Specifically, the courts recognize a “perceived willingness of the United States Supreme Court, under certain circumstances, to relax or eliminate any requirement of probable cause or individualized suspicion [under the fourth amendment] where the nature of the intrusion occasioned by a particular search or seizure is minimal and the government’s interest significant.” Wealer, 264 Ill. App. 3d at 14, 636 N.E.2d at 1134-35.

Some Illinois courts, while accepting the balancing test, have also found section 5 — 4—3 constitutional under a “special[-]needs” analysis. Chamberlain, 354 Ill. App. 3d at 1076, 822 N.E.2d at 919 (citing cases).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Hunter
831 N.E.2d 1192 (Appellate Court of Illinois, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
831 N.E.2d 1192, 358 Ill. App. 3d 1085, 294 Ill. Dec. 867, 2005 Ill. App. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hunter-illappct-2005.