SUPREME COURT OF ARIZONA 

En Banc 

MARIO W., ) Arizona Supreme Court 

 ) No. CV-11-0344-PR 

 Petitioner, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) Nos. 1 CA-SA 11-0016 

THE HONORABLE THOMAS KAIPIO, ) 1 CA-SA 11-0020 

COMMISSIONER OF THE SUPERIOR ) 1 CA-SA 11-0025 

COURT OF THE STATE OF ARIZONA, ) 1 CA-SA 11-0031 

in and for the County of ) 1 CA-SA 11-0032 

Maricopa, ) 1 CA-SA 11-0042 

 ) 1 CA-SA 11-0043 

 Respondent Commissioner, ) (Consolidated) 

 ) 

 ) Maricopa County 

STATE OF ARIZONA, ) Superior Court 

 ) Nos. JV-181946 

 Real Party in Interest. ) JV-181821 

__________________________________) JV-555266 

BRADLEY W., ) JV-555329 

 ) JV-555361 

 Petitioner, ) JV-555390 

 ) JV-555429 

 v. ) 

 ) 

THE HONORABLE THOMAS KAIPIO, ) 

COMMISSIONER OF THE SUPERIOR ) O P I N I O N

COURT OF THE STATE OF ARIZONA, ) 

in and for the County of ) 

Maricopa, ) 

 ) 

 Respondent Commissioner, ) 

 ) 

STATE OF ARIZONA, ) 

 ) 

 Real Party in Interest. ) 

__________________________________) 

ALEXIS A., ) 

 ) 

 Petitioner, ) 

 ) 

 v. ) 

 ) 

THE HONORABLE MARK BRAIN, ) 
2

COMMISSIONER OF THE SUPERIOR ) 

COURT OF THE STATE OF ARIZONA, ) 

in and for the County of ) 

Maricopa, ) 

 ) 

 Respondent Commissioner, ) 

 ) 

THE STATE OF ARIZONA, ) 

 ) 

 Real Party in Interest. ) 

__________________________________) 

NOBLE B., ) 

 ) 

 Petitioner, ) 

 ) 

 v. ) 

 ) 

THE HONORABLE THOMAS KAIPIO, ) 

JUDGE OF THE SUPERIOR COURT OF ) 

THE STATE OF ARIZONA, in and for ) 

the County of Maricopa, ) 

 ) 

 Respondent Judge, ) 

 ) 

STATE OF ARIZONA, ) 

 ) 

 Real Party in Interest. ) 

__________________________________) 

BAILEY J., ) 

 ) 

 Petitioner, ) 

 ) 

 v. ) 

 ) 

THE HONORABLE MARK F. ACETO, ) 

JUDGE OF THE SUPERIOR COURT OF ) 

THE STATE OF ARIZONA, in and for ) 

the County of Maricopa, ) 

 ) 

 Respondent Judge, ) 

 ) 

STATE OF ARIZONA, ) 

 ) 

 Real Party in Interest. ) 

__________________________________) 

DEVON C., ) 

 ) 
3

 Petitioner, ) 

 ) 

 v. ) 

 ) 

THE HONORABLE PETER A. THOMPSON, ) 

COMMISSIONER OF THE SUPERIOR ) 

COURT OF THE STATE OF ARIZONA, ) 

in and for the County of ) 

Maricopa, ) 

 ) 

 Respondent Commissioner, ) 

 ) 

STATE OF ARIZONA, ) 

 ) 

 Real Party in Interest. ) 

__________________________________) 

ERIC R., ) 

 ) 

 Petitioner, ) 

 ) 

 v. ) 

 ) 

THE HONORABLE THOMAS KAIPIO, ) 

COMMISSIONER OF THE SUPERIOR ) 

COURT OF THE STATE OF ARIZONA, ) 

in and for the County of ) 

Maricopa, ) 

 ) 

 Respondent Commissioner, ) 

 ) 

STATE OF ARIZONA, ) 

 ) 

 Real Party In Interest, ) 

__________________________________) 

Special Action from the Superior Court in Maricopa County 

The Honorable Thomas A. Kaipio, Judge Pro Tem 

AFFIRMED 

________________________________________________________________ 

Opinion of the Court of Appeals, Division One 

228 Ariz. 207, 265 P.3d 389 (App. 2011) 

VACATED

________________________________________________________________ 
4

CHRISTINA PHILLIS, MARICOPA COUNTY PUBLIC ADVOCATE Mesa 

 By David Katz, Deputy Public Advocate 

 Aaron Jason Max, Deputy Public Advocate 

 Colleen Engineer, Deputy Public Advocate 

 Devra N. Ellexson, Deputy Public Advocate 

 Suzanne Sanchez, Deputy Public Advocate 

 Andrew Meissen, Deputy Public Advocate 

Attorneys for Mario W., Bradley W., Alexis A. 

Bailey J., Devon C., Eric R., and Noble B. 

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix 

 By Linda Van Brakel, Deputy County Attorney 

Attorneys for State of Arizona 

ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE Chandler 

 By David J. Euchner 

 Julie M. Levitt-Guren 

Attorneys for Amicus Curiae Arizona Attorneys for Criminal 

Justice 

________________________________________________________________ 

H U R W I T Z, Vice Chief Justice 

¶1 Arizona law requires juveniles charged with certain 

offenses and summoned to appear at an advisory hearing to submit 

to the investigating law enforcement agency “a sufficient sample 

of buccal cells or other bodily substances for deoxyribonucleic 

acid [DNA] testing and extraction.” A.R.S. § 8-238(A). The 

penalty for failure to comply is revocation of release pending 

adjudication. § 8-238(B). In this case we consider whether the 

statutory scheme violates the Fourth Amendment prohibition 

against unreasonable searches and seizures. 

I. 

¶2 Seven juveniles (collectively, the “Juveniles”) were 

separately charged with violations of offenses specified in § 8-
5

238(A). Each was summoned to an advisory hearing, released, and 

ordered to submit a buccal sample to law enforcement within five 

days. In each case, the superior court rejected Fourth 

Amendment objections to the sampling order. 

¶3 The Juveniles then jointly filed a special action in 

the court of appeals. That court accepted jurisdiction and a 

divided panel held that requiring the submission of DNA samples 

from five juveniles for whom a probable cause determination has 

been made does not violate the Fourth Amendment. Mario W. v. 

Kaipio, 228 Ariz. 207, 210 ¶ 1, 265 P.3d 389, 392 (App. 2011). 

The majority reasoned that a judicial finding of probable cause 

is a “watershed event” that reduced these juveniles’ 

expectations of privacy, id. at 214-15 ¶ 22, 265 P.3d at 396-97, 

and that the State’s “interest in identifying these juveniles 

outweighs their right to privacy,” id. at 217 ¶ 30, 265 P.3d at 

399.1

 A different 2-1 majority, however, held that the Fourth 

Amendment forbids the DNA sampling of the two juveniles for whom 

no probable cause determination has yet been made. Id. at 210 

¶ 2, 265 P.3d at 392.2

                                                           

1

 The dissenting judge argued that DNA sampling is a 

suspicionless search barred by the Fourth Amendment. Id. at 222 

¶ 57, 265 P.3d at 404 (Norris, J., dissenting in part, but 

concurring in the result as to the two juveniles). 

2

 The dissenting judge argued that there was no need to reach 

the constitutional question because, in her view, § 8-238 does 

not compel submission of a sample before a probable cause 
6

¶4 The State and two of the Juveniles petitioned for 

review. We granted both petitions to address a recurring legal 

issue of statewide importance. We exercise jurisdiction 

pursuant to Article 6, Section 5(3) of the Arizona Constitution 

and A.R.S. § 12–120.24 (2003). 

II. 

¶5 After a buccal sample is obtained under A.R.S. § 8-

238(A), the investigating law enforcement agency transmits it to 

the Department of Public Safety (“DPS”), where it is analyzed 

and a DNA profile produced. §§ 8-238(C), 8-238(D), 13-

610(H)(1), (2). The profile is entered into an Arizona DNA 

identification system, see § 41-2418 (establishing state 

system), and a national database, the Combined DNA Index System 

(CODIS), see 42 U.S.C. § 14132(a) (establishing national 

database). See generally Haskell v. Harris, 669 F.3d 1049, 

1051-52 (9th Cir. 2012) (discussing interface of California 

database and CODIS). The sample and profile may then be used, 

inter alia, “[f]or law enforcement identification purposes.” 

A.R.S. § 13-610(I)(1).3

 A juvenile not ultimately found 

                                                                                                                                                                                               

determination. Id. at 219-20 ¶¶ 39-43, 265 P.3d at 401-02 

(Orozco, J., concurring in part and dissenting in part). 

3

 Other provisions of Arizona law not at issue today require 

DNA profiling of various non-juveniles, including convicted 

felons, those arrested for certain crimes, probationers, and 

parolees. See A.R.S. § 13-610(A)–(D), (K), (L). 
7

delinquent “may petition the superior court” to expunge the 

profile and sample from the Arizona system. A.R.S. § 13-610(M); 

see also 42 U.S.C. § 14132(d)(2) (providing for expungement from 

CODIS); A.R.S. § 13-610(J) (providing for expungement when an 

adjudication is overturned on appeal or in a postconviction 

relief proceeding). 

III. 

A. 

¶6 Before addressing the constitutional claims raised by 

the Juveniles, it is appropriate to begin by noting what is not

at issue in this case. 

¶7 First, the parties agree that DNA sampling involves a 

search or seizure governed by the Fourth Amendment. 

¶8 Second, it is common ground that none of the Juveniles 

had been adjudicated delinquent for the charged crimes when 

ordered to submit a buccal cell sample. If such an adjudication 

is made, a statute not at issue today, A.R.S. § 13-610(O)(2), 

governs DNA sampling and profiling. Neither the State nor the 

Juveniles contest that post-adjudication sampling and profiling 

are constitutional. See In re Leopoldo L., 209 Ariz. 249, 250 

¶ 1, 99 P.3d 578, 579 (App. 2004) (finding post-adjudication 

sampling and profiling constitutional); accord In re Lakisha M., 

882 N.E.2d 570, 582 (Ill. 2008); Petitioner F v. Brown, 306 

S.W.3d 80, 93 (Ky. 2010); see also Wilson v. Collins, 517 F.3d 
8

421, 423 (6th Cir. 2008) (upholding DNA profiling of convicted 

felons); United States v. Amerson, 483 F.3d 73, 89 (2d Cir. 

2007) (upholding DNA profiling of probationers); United States 

v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004) (upholding DNA 

profiling of conditional releasees). 

¶9 Third, the State does not claim probable cause that a 

DNA profile will provide evidence that any of these juveniles 

committed the charged offenses. Nor does the State even 

reasonably suspect that a juvenile committed another offense for 

which the DNA profile might provide investigative assistance. 

Cf. Hayes v. Florida, 470 U.S. 811, 817 (1985) (“[T]he Fourth 

Amendment would permit seizures for the purpose of 

fingerprinting, if there is reasonable suspicion that the 

suspect has committed a criminal act, if there is a reasonable 

basis for believing that fingerprinting will establish or negate 

the suspect’s connection with that crime, and if the procedure 

is carried out with dispatch.”); A.R.S. § 13-3905 (permitting 

temporary detention for investigative fingerprinting upon 

judicial order). 

¶10 Fourth, although § 13-610(I)(1) permits use of the DNA 

samples and resulting profiles for “law enforcement 

identification purposes,” the State does not seek a profile 

simply to identify any juvenile in the normally accepted use of 

that term. Put differently, the State does not claim that it 
9

needs a DNA profile in any of the cases before us to determine 

who the charged juvenile is. Rather, the State argues that the 

statutory phrase includes not only authentication of a 

juvenile’s identity, but also use of the profile to investigate 

whether the juvenile has committed other uncharged crimes. 

Indeed, given that the DNA profiles are placed both in Arizona 

and national databases, and are available to law enforcement 

officers throughout the country for investigative purposes, it 

is plain that the legislature intended the profile to be used 

for purposes other than simply confirming the name of the person 

charged with the current crime.4

¶11 Finally, the Juveniles do not contest the efficacy of 

the DNA database systems – both state and national – in solving 

crimes and providing unique identification information about an 

individual. But neither does the State claim – nor does any 

case suggest - that these law enforcement goals would justify 

DNA sampling and profiling of ordinary citizens. See Haskell, 

669 F.3d at 1058 (majority opinion) (assuming 

                                                           

4

 “The CODIS system enables federal, state, and local crime 

labs to exchange and compare DNA profiles electronically, 

thereby linking crimes to each other and to convicted 

offenders.” Tracey Maclin, Is Obtaining an Arrestee’s DNA A 

Valid Special Needs Search Under the Fourth Amendment? What 

Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 

165, 166 (2006) (internal quotation marks omitted). CODIS is 

currently linked “to all fifty states as a national index 

linking databases at the local, state and national levels.” Id.
10

unconstitutionality of such a procedure); id. at 1061 (noting 

that the majority and the dissent agreed on the 

unconstitutionality of such a procedure). 

B. 

¶12 We turn then to the issue at hand: May the State, 

consistent with the Fourth Amendment, compel these Juveniles to 

submit to DNA extraction and profiling as a condition of 

release? 

¶13 The Fourth Amendment to the United States Constitution 

provides: 

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 

Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons 

or things to be seized. 

It has been long established that warrantless searches “are per 

se unreasonable under the Fourth Amendment – subject only to a 

few specifically established and well-delineated exceptions.” 

Katz v. United States, 389 U.S. 347, 357 (1967). Supreme Court 

jurisprudence also long taught that even searches excepted from 

the warrant requirement could be conducted only on probable 

cause. See Dunaway v. New York, 442 U.S. 200, 208 (1979) 

(discussing case law). In 1968, however, the Court held that 

the Fourth Amendment allowed temporary seizures based on 
11

something less than probable cause – reasonable suspicion. 

Terry v. Ohio, 392 U.S. 1, 25-31 (1968). 

¶14 The Court has also upheld searches in certain 

circumstances absent any showing of probable cause or reasonable 

suspicion. In Samson v. California, the Court held that a 

search mandated as a condition of parole does not violate the 

Fourth Amendment. 547 U.S. 843, 847 (2006). Although the Court 

might have premised Samson on a consent theory, it instead 

employed a “totality of the circumstances test” in finding the 

search reasonable. Id. at 848-53. Under that test, “[w]hether 

a search is reasonable is determined by assessing, on the one 

hand, the degree to which it intrudes upon an individual’s 

privacy, and on the other, the degree to which it is needed for 

the promotion of legitimate governmental interests.” Id. at 848 

(citation and internal quotation marks omitted). The Court had 

earlier employed a totality of the circumstances analysis to 

uphold the suspicionless search of a probationer. United States 

v. Knights, 534 U.S. 112, 118 (2001). This Term, the Court 

upheld strip searches of jail detainees without any showing of 

probable cause or reasonable suspicion. Florence v. Bd. of 

Chosen Freeholders, 132 S. Ct. 1510, 1518-23 (2012). Although 

not explicitly employing a totality of the circumstances test, 

Florence also balanced the government’s interests in safety and 
12

orderly jail administration against the reduced privacy 

interests of detainees. Id.

¶15 No Arizona or United States Supreme Court case, 

however, addresses the constitutionality of suspicionless preconviction DNA testing. The case law elsewhere is sharply 

divided. Maryland’s highest court recently found that DNA 

profiling of arrestees violated the Fourth Amendment. King v. 

State, 42 A.3d 549, 580 (Md. 2012). Other courts have also so 

held, distinguishing the post-conviction cases because arrestees 

have a higher expectation of privacy than convicted felons. 

See, e.g., Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir. 

2009); In re Welfare of C.T.L., 722 N.W.2d 484, 492 (Minn. Ct. 

App. 2006). 

¶16 Several other courts, however, have found DNA 

profiling of arrestees reasonable under the Fourth Amendment. 

See, e.g., Haskell, 669 F.3d at 1065 (2-1 decision); United 

States v. Mitchell, 652 F.3d 387, 416 (3d Cir. 2011) (en banc) 

(8-6 decision); United States v. Pool, 621 F.3d 1213, 1226 (9th 

Cir. 2010), reh’g en banc granted, 646 F.3d 659 (9th Cir.), and 

vacated, 659 F.3d 761 (9th Cir. 2011); Anderson v. Commonwealth, 

650 S.E.2d 702, 705-06 (Va. 2007). These courts have found that 

the government’s interests in identifying arrestees and solving 

crimes outweigh an arrestee’s diminished expectations of 

privacy. 
13

¶17 Most courts considering the constitutionality of DNA 

sampling and profiling have employed the totality of the 

circumstances test. See Mitchell, 652 F.3d at 403 (“We and the 

majority of circuits — the First, Fourth, Fifth, Sixth, Eighth, 

Ninth, Eleventh, and District of Columbia — have endorsed a 

totality of the circumstances approach.”). But see Amerson, 483 

F.3d at 78 (applying “special needs test”); Green v. Berge, 354 

F.3d 675, 677-78 (7th Cir. 2004) (same). The parties do not 

dispute the applicability of the totality of the circumstances 

test, and we therefore analyze the Arizona scheme under that 

rubric. 

C. 

¶18 We begin by recognizing that the Arizona statutory 

scheme involves two separate intrusions on a juvenile’s privacy. 

First, the State physically seizes a buccal cell sample from the 

juvenile. Second, it processes the seized cells and extracts a 

DNA profile. See State v. Gomez, 226 Ariz. 165, 166 n.1 ¶ 3, 

244 P.3d 1163, 1164 n.1 (2010) (describing process of sampling); 

1 Kenneth S. Broun et al., McCormick on Evid. § 205 (6th ed. 

2010) (describing process of extracting profiles from DNA 

samples). In Mitchell, the Third Circuit found that DNA 

sampling and profiling involved two searches — “the physical 

collection of the DNA sample” and the “processing of the DNA 

sample.” 652 F.3d at 406-07. Other courts have reached the 
14

same conclusion. See Amerson, 483 F.3d at 84-85; State v.

Martin, 955 A.2d 1144, 1153-54 (Vt. 2008). 

¶19 This approach is consistent with precedent outside the 

DNA context. In United States v. Chadwick, for example, the 

Supreme Court analyzed separately the legality of the seizure of 

a steamer trunk and the later opening of the trunk, holding the 

initial seizure reasonable but finding the later search 

unconstitutional. 433 U.S. 1, 13 & n.8 (1977).5 Similarly, our 

court of appeals has held that even if an officer may be 

justified under the circumstances in seizing a purse during a 

Terry stop, the same justification does not automatically allow 

the search of the purse. In re Tiffany O., 217 Ariz. 370, 375 

¶ 20, 174 P.3d 282, 287 (App. 2007); see also United States v. 

Doe, 61 F.3d 107, 110-11 (1st Cir. 1995) (analyzing separately 

the constitutionality of the seizure of a closed container and 

subsequent opening of the container). 

¶20 These cases recognize that even when law enforcement 

exigencies justify an initial limited intrusion on Fourth 

Amendment protected interests, a greater showing is required for 

a second more extensive intrusion. The two-tiered approach is 

particularly appropriate in the DNA sampling and profiling 

context because the two searches implicate different privacy 

                                                           

5 Chadwick was later overruled with respect to its 

interpretation of the “automobile exception” to the Fourth 

Amendment in California v. Acevedo, 500 U.S. 565 (1991). 
15

interests. The seizure of buccal cells is a physical intrusion, 

but does not reveal by itself intimate personal information 

about the individual. The later search of the sample, however, 

reveals uniquely identifying information about individual 

genetics. See Haskell, 669 F.3d at 1051 (describing identifying 

characteristics of DNA profile). That second search is, in 

effect, the analog to opening the steamer trunk in Chadwick and 

the purse in Tiffany O. to see what is inside. 

1. 

¶21 We thus turn first to the seizure of buccal cells. It 

is clear that one arrested on probable cause may be compelled to 

give fingerprints to law enforcement. See Davis v. Mississippi, 

394 U.S. 721, 725-28 (1969). Several courts have characterized 

a buccal swab as a similarly minimal intrusion into an 

arrestee’s privacy. See, e.g., Haskell, 669 F.3d at 1050;

Mitchell, 652 F.3d at 407; Martin, 955 A.2d at 1153-54. 

¶22 We agree. While taking fingerprints, law enforcement 

officers will often touch the body of an arrestee or restrain 

him from departing until the process is completed. See A.R.S. 

§ 13-3890 (providing for court order when arrestee refuses to 

submit to fingerprinting). The arrestee is required to press 

his hands on both an ink pad and the fingerprint card. See 

A.A.C. § R13-1-106 (providing for use of ink and roll 

fingerprint cards). The intrusion on an arrestee’s privacy 
16

interests in the swiping of a swab to obtain buccal cells is not 

significantly greater than fingerprinting. Indeed, in some 

instances arrestees apparently take their own buccal swabs. See 

Haskell, 669 F.3d at 1057. 

¶23 But even if extracting the cell sample does not 

intrude on privacy to the same extent as a search of a home or 

the drawing of blood, it nonetheless remains a search or seizure 

under the Fourth Amendment. See, e.g., Mitchell, 652 F.3d at 

406. Under the totality of the circumstances test, the issue is 

whether, and to what degree, that intrusion serves important 

governmental interests. Samson, 547 U.S. at 848. 

¶24 The State offers various justifications for the 

extraction of a DNA sample. We find one compelling. If, as 

here, a juvenile is released pending adjudication and later 

fails to appear for trial without previously having submitted a 

buccal sample, the opportunity to obtain a DNA profile for 

identification purposes will have been lost. The State has an 

important interest in locating an absconding juvenile and, 

perhaps years after charges were filed, ascertaining that the 

person located is the one previously charged. If the State 

cannot obtain a DNA sample from a juvenile before release, it 

may never have another opportunity to do so. 

¶25 This exigency justifies obtaining a buccal cell sample 

even if a formal judicial determination of probable cause was 
17

not made at the advisory hearing. Although two of the Juveniles 

were ordered to submit samples before a probable cause 

determination was made, each had been charged with a serious 

crime in a petition filed under oath by the prosecutor. See

Ariz. R.P. Juv. Ct. 24(a). One arrested for a serious crime may 

be fingerprinted before a judicial determination of probable 

cause. See A.R.S. § 13-3890(A).6

 A judicial order to provide a 

buccal cell sample occasions no constitutionally distinguishable 

intrusion.7

 Thus, we find that the first search — the physical 

extraction of the DNA — is constitutional as to all of the 

Juveniles. 

                                                           

6

 The Supreme Court appears never to have expressly held that 

the process of fingerprinting, as opposed to detaining an 

individual for that purpose, constitutes a search or seizure 

under the Fourth Amendment. Compare Hayes v. Florida, 470 U.S. 

811, 814 (1985) (stating that “fingerprinting, because it 

involves neither repeated harassment nor any of the probing into 

private life and thoughts that often marks interrogation and 

search, represents a much less serious intrusion upon personal 

security than other types of searches and detentions”) with

United States v. Dionisio, 410 U.S. 1, 14-15 (1973) (comparing 

voice exemplars to fingerprinting, and finding that neither 

involve significant probing such that a search has occurred). 

We assume for present purposes, however, that fingerprinting, 

albeit minimally intrusive, constitutes a search or seizure. 

7

 A probable cause finding is required under Juvenile Rule 

23(D) for the detention of a juvenile. See Mario W., 228 Ariz. 

at 219 ¶¶ 40-41, 265 P.3d at 401 (Orozco, J., concurring in part 

and dissenting in part). Not all juveniles, however, are 

detained before an advisory hearing. See Ariz. R.P. Juv. Ct. 

28(B)(1)-(2). The order to submit buccal cell samples under 

§ 8-238(A), as this case illustrates, may thus precede a 

probable cause determination, and it is that order, not any 

eventual detention, that the two juveniles challenged below. 
18

2. 

¶26 The State argues that once it has lawfully obtained 

the cell samples, the Fourth Amendment provides no greater bar 

to the processing of those samples and the extraction of the DNA 

profile than it does to the analysis of fingerprints. But the 

State’s reliance on the fingerprinting analogy here is 

misplaced. Once fingerprints are obtained, no further intrusion 

on the privacy of the individual is required before they can be 

used for investigative purposes. In this sense, the fingerprint 

is akin to a photograph or voice exemplar. But before DNA 

samples can be used by law enforcement, they must be physically 

processed and a DNA profile extracted. See Erin Murphy, The New 

Forensics: Criminal Justice, False Certainty, and the Second 

Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 726-30 

(2007). 

¶27 This second search presents a greater privacy concern 

than the buccal swab because it involves the extraction (and 

subsequent publication to law enforcement nationwide) of 

thirteen genetic markers from the arrestee’s DNA sample that 

create a DNA profile effectively unique to that individual. 

Ashley Eiler, Note, Arrested Development: Reforming the Federal 

All-Arrestee DNA Collection Statute to Comply with the Fourth 

Amendment, 79 Geo. Wash. L. Rev. 1201, 1220 (2011) (“[I]t is the 

nature of the information obtained by analyzing DNA samples for 
19

inclusion in CODIS rather than the bodily intrusion of the 

initial collection that is problematic.”). Because the State 

may constitutionally extract DNA profiles from the buccal swabs 

of those who are eventually convicted, the essential issue is 

whether the governmental interest in obtaining the DNA profiles 

before trial is sufficient to justify the second search. 

¶28 For juveniles not eventually adjudicated delinquent, 

we can perceive no strong governmental interest in creating DNA 

profiles in the short period between the advisory hearing and 

the adjudication. The state and federal statutes providing for 

the expungement from databases of profiles obtained from 

arrestees not subsequently convicted recognize that these 

profiles should not be used for law enforcement purposes after 

adjudication, and given the constitutional presumption of 

innocence, we can find no stronger state interest in their use 

before adjudication. Cf. John D. Biancamano, Note, Arresting 

DNA: The Evolving Nature of DNA Collection Statutes and Their 

Fourth Amendment Justifications, 70 Ohio St. L.J. 619, 649 

(2009) (noting that pre-trial profiling will include innocent 

arrestees). 

¶29 Indeed, whether or not the juvenile is eventually 

adjudicated delinquent, the benefit to law enforcement of 

obtaining a DNA profile in the few weeks between the advisory 

hearing and trial is speculative at best. The buccal sample 
20

will not typically be processed until weeks after it is 

obtained. In California, for example, it takes an average of 

thirty-one days to process a sample, Haskell v. Brown, 677 F. 

Supp. 2d 1187, 1201 (N.D. Cal. 2009), aff’d sub nom. Haskell v. 

Harris, 669 F.3d 1049 (9th Cir. 2012), and the State does not 

suggest that the process in Arizona is speedier. Adjudication 

of charges for juveniles not detained (as the Juveniles here) 

occurs within sixty days of the advisory hearing, Ariz. R.P. 

Juv. Ct. 29(B)(2), and under § 8-238(A), the juvenile is 

afforded five days after the advisory hearing to submit the 

buccal cell sample. Thus, the State’s access to a profile will 

not be significantly delayed by deferring processing of the 

sample until the typical juvenile is adjudicated delinquent. 

¶30 As noted above, some juveniles released pending 

adjudication may abscond, and a DNA profile may be invaluable in 

their identification and recapture. But because the State 

already will have obtained a buccal sample from those complying 

with a § 8-238 order, it may obtain a DNA profile from the 

sample once a juvenile fails to appear as required by law or 

court order. The State has not suggested that earlier lack of 

access to the profile will hinder recapture efforts. Indeed, 

because a juvenile accused of a serious offense but released 

pending adjudication will already have been determined by a 

judge not to pose a significant flight risk, see Ariz. R.P. Juv. 
21

Ct. 28(D), the state interest in pre-adjudication processing of 

samples is even more speculative. 

¶31 We recognize that DNA profiles are an important law 

enforcement tool for investigating crimes other than those 

charged. See 3 Wayne R. LaFave, Search & Seizure § 5.4 (4th ed. 

2004) (noting that the true purpose of DNA databases has not 

“been primarily to supplement or supplant fingerprints as 

markers of true identity but rather to generate investigate 

leads”); David H. Kaye, A Fourth Amendment Theory for Arrestee 

DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 

(forthcoming Summer 2012), available at

http://ssrn.com/abstract=2043259 (“Realistically, the sole 

purpose of arrestee sampling . . . is intelligence.”). Having a 

DNA profile before adjudication may conceivably speed such 

investigations. But one accused of a crime, although having 

diminished expectations of privacy in some respects, does not 

forfeit Fourth Amendment protections with respect to other 

offenses not charged absent either probable cause or reasonable 

suspicion. An arrest for vehicular homicide, for example, 

cannot alone justify a warrantless search of an arrestee’s 

financial records to see if he is also an embezzler. 

¶32 Thus, we find no state interest sufficient to justify 

the serious intrusion on the privacy interests of the Juveniles 

occasioned by the second search – the extraction of the DNA 
22

profile from the buccal swab before adjudication or failure to 

appear. The swab remains available for processing thereafter, 

and no exigency exists warranting an earlier suspicionless 

search. 

IV. 

¶33 For the reasons above, we vacate the opinion of the 

court of appeals, and we remand the cases to the superior court 

for proceedings consistent with this opinion. 

 _____________________________________ 

 Andrew D. Hurwitz, Vice Chief Justice 

CONCURRING: 

_____________________________________ 

Rebecca White Berch, Chief Justice 

_____________________________________ 

W. Scott Bales, Justice 

_____________________________________ 

A. John Pelander, Justice 

_____________________________________ 

Robert M. Brutinel, Justice