Docket No. 99031. 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

 RAYMOND E. GARVIN, Appellant. 

Opinion filed March 23, 2006. 

JUSTICE KILBRIDE delivered the judgment of the court, with 

opinion. 

Chief Justice Thomas and Justices Fitzgerald, Garman, and 

Karmeier concurred in the judgment and opinion. 

Justice McMorrow, joined by Justice Freeman, specially 

concurred. 

OPINION

In this case, defendant Raymond E. Garvin challenges the circuit 

court of Du Page County=s denial of his motion to quash arrest and 

suppress evidence and, in an issue of first impression before this 

court, the constitutionality of section 5B4B3 of the Unified Code of 

Corrections (730 ILCS 5/5B4B3 (West 2002)). The latter argument 

challenges the statute both on its face and as applied in this case 

under the search and seizure provisions of our state and federal 

constitutions. We affirm the appellate court=s judgment affirming the 

trial court=s denial of the motion, albeit on a different basis, and 

upholding the constitutionality of the statute. 

I. BACKGROUND 
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Sometime prior to 4:45 a.m. on December 29, 2001, Gerhardt 

Roth called the Franklin Park police to report he had seen a license 

plate stolen from one of his company=s vehicles on a white van with a 

ACompUSA@ logo on its side. He tracked the van after it left the 

company=s property and noticed a white car also following the van. 

Ultimately, both vehicles pulled into a gas station. Pursuant to Roth=s 

call, Officer Henninger was dispatched to the gas station and 

observed a white car and a white CompUSA van in the parking lot. 

At the gas station, Roth told the officer that he had seen the two 

vehicles on his company=s property and that defendant and two other 

men had been in or around the van. One of the other two men was 

still in the car. Defendant and the other man came out of the 

convenience store adjoining the gas station and walked up to the 

officer. While they were talking, Henninger obtained the names of 

the three men and ran those names through the police computer. He 

received a radio message that the Bensenville police department was 

looking for a similar van and a white Ford Thunderbird in connection 

with a possible theft from Emery Worldwide. Henninger requested 

officers from Bensenville be dispatched to the scene. In addition, the 

officer checked the van=s vehicle identification number and 

discovered it, too, had been reported stolen. 

Henninger also received information that one of the men with 

defendant was wanted on an outstanding warrant, and he arrested that 

man. Defendant was later arrested without a warrant. Defendant 

subsequently asked the Bensenville police to remove his wallet from 

the van and admitted he had been in the vicinity of Emery Worldwide 

earlier in the evening. 

Defendant was charged with burglary (720 ILCS 5/19B1(a) (West 

2000)), theft (720 ILCS 5/16B1(a)(1)(A) (West 2000)), and 

possession of burglary tools (720 ILCS 5/19B2(a) (West 2000)). He 

filed a motion in the circuit court of Du Page County seeking to 

quash his arrest for lack of probable cause and to suppress his 

postarrest statements. Following a hearing, the circuit court denied 

defendant=s motion. The State subsequently dropped the charge of 

possession of burglary tools. 

Defendant entered into a stipulation that included both his 

postarrest statements to the Bensenville police and the discovery of 

his wallet in the white van by the Franklin Park police. Following a 
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stipulated bench trial, defendant was convicted of burglary and theft. 

He was sentenced to concurrent prison terms of 62 years and ordered 

to submit to the State a blood sample for deoxyribonucleic acid 

(DNA) analysis pursuant to section 5B4B3 of the Unified Code of 

Corrections (Code) (730 ILCS 5/5B4B3 (West 2002)). The trial court 

denied defendant=s motion for a new trial alleging the court 

improperly declined to quash his arrest and suppress his statements. 

On appeal, defendant first argued the trial court should have 

granted his motion to quash and suppress. While the appellate court 

agreed no probable cause existed for defendant=s arrest, it deemed the 

erroneous probable cause finding harmless because it believed 

sufficient evidence of guilt was adduced at trial without the 

admission of the improper evidence. 349 Ill. App. 3d 845, 851-52. 

The appellate court also concluded defendant could not attack the 

admission of his inculpatory statement placing his wallet inside the 

stolen van because he had stipulated the wallet found in the van was 

his. 349 Ill. App. 3d at 852. 

Defendant also challenged, both on its face and as applied, the 

constitutionality of section 5B4B3, mandating the submission of a 

DNA sample for analysis and entry into a computer database. 

Applying a balancing test, the appellate court found the statutory 

provision constitutional both because the blood test required minimal 

physical intrusion and because the state=s interest in collecting and 

storing DNA to deter and prosecute recidivists outweighed 

defendant=s diminished privacy interest as a convicted felon. 349 Ill. 

App. 3d at 855-56. Defendant=s petition for rehearing was denied. 

This court allowed defendant=s petition for leave to appeal. 177 Ill. 2d 

R. 315(a). 

II. ANALYSIS 

Defendant raises two distinct issues on appeal. First, he argues the 

appellate court correctly recognized the lack of probable cause for his 

arrest but erroneously believed the admission of his subsequent 

police statements was harmless error. 349 Ill. App. 3d at 851. Next, 

he contends the mandatory submission of blood for DNA analysis 

pursuant to section 5B4B3 of the Code (730 ILCS 5/5B4B3 (West 

2002)) is unconstitutional because it violates, both on its face and as 

applied, his protections against unreasonable searches and seizures 
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under the Illinois and United States constitutions, an issue not 

previously considered by this court. We address these issues in turn. 

A. Probable Cause 

Initially, defendant asserts the trial court should have granted his 

motion to quash arrest and suppress evidence based on a lack of 

probable cause. He maintains probable cause was absent because the 

police had no particularized suspicion that he was involved in any 

criminal activity and instead relied on his proximity to another man 

named in an unrelated warrant. See United States v. Di Re, 332 U.S. 

581, 592-94, 92 L. Ed. 210, 219-20, 68 S. Ct. 222, 227-28 (1948). 

See also Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245, 

100 S. Ct. 338, 342 (1979). Defendant claims the only evidence 

linking him to the charged crimes was Roth=s eyewitness statement 

identifying him as one of three men who had been Ain or around@ the 

stolen van in the gas station parking lot. 

Reviewing the denial of defendant=s motion alleging a lack of 

probable cause de novo (People v. Sorenson, 196 Ill. 2d 425, 431 

(2001)), we agree that mere proximity to another individual is 

insufficient to support a finding of probable cause (see Di Re, 332 

U.S. at 592-94, 92 L. Ed. at 219-20, 68 S. Ct. at 227-28). We 

disagree, however, with defendant=s characterization of the relevant 

evidence. 

Officer Henninger was the only witness at the hearing on 

defendant=s motion. He arrived at the gas station in response to a call 

from Roth reporting a white van with a ACompUSA@ logo on its side 

bearing license plates stolen from Roth=s company. When the officer 

arrived, he saw a van matching that description parked on the west 

side of the lot. He also noted a white car located approximately 22

car lengths away from the van, parked directly behind the 

convenience store adjoining the gas station. It was an early winter 

morning, the lot was well lit, and Henninger did not recall any other 

customers present. 

Roth approached Officer Henninger and pointed out the van with 

the stolen plates, stating he had noticed the unauthorized van near his 

company prior to recognizing the stolen license plate. Roth also 

indicated he had seen the white car follow the van and that the 

vehicles had pulled into the gas station together. 
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Officer Henninger then ran the license plate number on the van 

and verified the plate was stolen. While the plate was being run, 

defendant and another man came out of the convenience store 

together and approached Henninger. Roth identified the men as two 

of the three he had seen in or around the van. The officer talked to the 

men as he continued to investigate Roth=s report. Henninger then 

received a message that the Bensenville Police were looking for two 

vehicles possibly stolen from Emery Worldwide: a van matching the 

description of the one in the lot and a white sedan. He responded by 

requesting the dispatch of Bensenville officers to the scene. At some 

point, the officer also ran a check on the van=s vehicle identification 

number and discovered it, too, had been reported stolen. Henninger 

believed that defendant was arrested without a warrant between 4:30 

a.m. and 5 a.m. 

Contrary to defendant=s claim, there was far more evidence 

linking him to the stolen license plates than Roth=s bare statement that 

he had observed defendant in or around a van bearing those plates. 

Before noticing the stolen plates, Roth had observed the unauthorized 

van on his company property during the early morning hours. After 

recognizing the plates on the van as belonging to his company, he 

reported the theft to police and personally trailed the van and the 

white car that was following it to the gas station, where the two 

vehicles parked near each other. Although Officer Henninger could 

not recall if Roth had indicated whether defendant had exited the van 

or the car, Roth had identified defendant as one of the men who had 

been in or around the van bearing the stolen plate and that, itself, was 

also subsequently determined to be stolen. 

As the State notes, logic dictates that at least two persons had to 

have been involved in the theft at Roth=s company to have been able 

to drive both the van and the white car that followed it. There was no 

evidence the van or the car stopped anywhere to drop off any 

passengers or to pick up additional ones between leaving Roth=s 

company property and parking at the gas station. Thus, logically, the 

same individuals were in the van and the car when the vehicles left 

Roth=s company property and when they parked at the gas station. 

Moreover, Officer Henninger did not recall seeing any other 

customers at the gas station. 
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One man was observed in the white car parked near the van at the 

gas station. Defendant was one of two other men who together came 

out of the convenience store and approached Officer Henninger. Roth 

identified defendant as one of the men he had previously seen in or 

around the van. Based on these facts, it was reasonable to infer that 

the three men were connected with one another and had been 

personally observed by the eyewitness and identified as the same men 

who had been in or around the van bearing the stolen license plate. 

Based on this connection, the brief time that had passed since the 

theft of the license plate, and the implausibility that anyone had left 

or entered the vehicles between their departure from Roth=s property 

and their arrival at the gas station, it was reasonable to conclude 

defendant was involved in that crime. This particularized suspicion 

distinguishes this case from Ybarra and Di Re. 

In Ybarra, the police had a warrant limiting their search to a bar 

and a bartender. Once at the bar, they expanded the scope of that 

search to include everyone present, including the defendant, who was 

found to have narcotics in his pocket. The Supreme Court held the 

drug evidence should have been suppressed because the defendant=s 

mere proximity to others who were Aindependently suspected of 

criminal activity does not, without more, give rise to probable cause 

to search that person.@ Ybarra, 444 U.S. at 91, 62 L. Ed. 2d at 245, 

100 S. Ct. at 342. 

In this case, more than mere physical proximity connected 

defendant to the theft of the license plates, and the police did not 

expand the scope of a previously authorized search. Logic and a 

credible eyewitness connected the three men present at the gas station 

to the earlier theft. In Ybarra, the only known connection between the 

defendant and the bar being searched was the defendant=s presence in 

the bar at that particular time. Here, defendant was not simply a 

patron who happened to be at the gas station when it was searched 

pursuant to a warrant. While particularized suspicion was lacking in 

Ybarra, the same cannot be said in this case. 

Similarly, the defendant in Di Re was arrested because he was in 

the front seat of a car next to the driver, who an informant sitting in 

the backseat said had given him two gasoline ration coupons later 

determined to be counterfeit. While in custody, the defendant was 

found to have a large number of counterfeit gasoline and fuel oil 
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ration coupons in his possession. Di Re, 332 U.S. at 583, 92 L. Ed. at 

214, 68 S. Ct. at 223. At the time of the defendant=s arrest, however, 

the police had no evidence that he had played any role in the driver=s 

transaction with the informant. Indeed, the informant specifically 

named only the driver as a participant when the police arrived on the 

scene. Di Re, 332 U.S. at 592, 92 L. Ed. at 219, 68 S. Ct. at 227. The 

Court stated that the defendant=s mere presence in the car was not 

sufficient to justify his arrest and subsequent search. Di Re, 332 U.S. 

at 592-93, 92 L. Ed. at 219, 68 S. Ct. at 227-28. As in Ybarra, there 

was no particularized suspicion that the defendant had been involved 

in any crime. For that reason, Di Re is also distinguishable from the 

instant case. 

The special concurrence relies on People v. Lee, 214 Ill. 2d 476, 

484 (2005), not cited in the parties= briefs. In Lee, no evidence of any 

actual criminal activity existed at the time of the defendant=s arrest. 

The police simply responded to a citizen=s complaint alleging that 

three men were selling drugs on a corner located in an area 

designated by the city to be A >high-drug= @ and A >high-gang.= @ Lee, 

214 Ill. 2d at 478. The same citizen had previously made other 

complaints, A[m]ost of them *** well-founded,@ according to the 

police. 

After parking two blocks away from the named intersection, the 

police observed the defendant and two other men for three to five 

minutes. During this time, a van drove up and parked, and the officers 

saw the three men speak to the driver. Notably, no illegal acts were 

observed, and the officers noticed nothing indicative of drug-related 

activities, such as an exchange of money or packages, as required by 

the statute. A preliminary pat-down search of the men failed to 

provide any evidence of contraband. Despite the complete absence of 

any evidence that the men were connected to any drug-related 

activities, defendant and his companions were arrested. Lee, 214 Ill. 

2d at 478-79. Only after being arrested was the defendant found to 

have cocaine in his pants pocket. Lee, 214 Ill. 2d at 481. 

Unlike Lee, defendant in this case was undeniably linked to a 

crime that was readily observable by the officer on the scene. The 

presence of the stolen license plate on the van established that a theft 

had actually been committed. While at the gas station, Officer 

Henninger verified that the plate was stolen, confirming the 
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commission of a crime and corroborating Roth=s statements. He also 

knew from speaking directly with the complainant at the scene that 

defendant and the two other men had been in or around the van 

bearing the stolen plate. In addition, the officer knew Roth had 

personally followed the van and the car from the scene of the licenseplate theft to the gas station and had not reported anyone entering or 

leaving the vehicles. The van had also been reported stolen. Officer 

Henninger continued to investigate the crime when defendant and his 

companion came out of the convenience store. 

This court has stated that probable cause exists if the facts and 

surrounding circumstances are sufficient to justify a reasonable belief 

by the arresting officer that the defendant is or has been involved in a 

crime. People v. Jones, 215 Ill. 2d 261, 277 (2005). AThe standard for 

determining whether probable cause is present is probability of 

criminal activity, rather than proof beyond a reasonable doubt. 

[Citations.]@ Lee, 214 Ill. 2d at 485. If there are questions both of 

whether a crime has even been committed as well as of whether a 

particular individual committed the crime, additional evidence is 

required to show probable cause. Lee, 214 Ill. 2d at 485. 

In Lee, even the existence of a crime was in question, and the 

defendant=s actions revealed no hint of illegality. With the enhanced 

evidentiary burden imposed on the State in the absence of a definitive 

crime, probable cause did not exist in Lee. Lee, 214 Ill. 2d at 485. In 

contrast, here a crime had undeniably been committed, making the 

enhanced burden placed on the State in Lee inapplicable. Moreover, 

here an eyewitness had identified the van bearing the stolen license 

plate and the white car accompanying it as the same two vehicles he 

had followed, uninterrupted, from the scene of the theft to the gas 

station, where the police observed them. The same eyewitness also 

personally identified defendant as one of three men he had observed 

in or around the van and the white car. Based on the limited 

testimony adduced at the suppression hearing, defendant=s presence at 

the time the license plate was stolen may be logically inferred, as 

noted previously. In light of the totality of the facts and 

circumstances, as viewed by an objectively reasonable officer, we 

believe probable cause existed at the time of defendant=s arrest. See 

Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed. 2d 769, 775, 124 

S. Ct. 795, 800 (2003) (stating the relevant standard). Having made 

this determination, we need not address defendant=s additional claim 
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that the appellate court erred by finding the admission of his 

postarrest statements during the stipulated bench trial to be harmless 

error. Defendant=s arrest was proper; thus under the facts of this case, 

the admission of his subsequent custodial statements was also proper. 

Unlike the appellate court, we need not consider whether the 

admission of those statements was harmless error because we hold 

the trial court properly admitted them. The trial court properly denied 

defendant=s motion to quash arrest and suppress evidence. 

B. DNA Sampling 

Defendant next challenges the constitutionality of the mandate in 

section 5B4B3 of the Unified Code of Corrections (730 ILCS 5/5B4B3 

(West 2002)) that all felons submit a blood sample for DNA profiling 

and entry into a computer database. 

He bases his challenge on his fourth amendment right under the 

federal constitution to be free from unreasonable searches (U.S. 

Const., amends. IV, XIV), as well as its state counterpart (Ill. Const. 

1970, art. I, '6). We note that defendant does not offer any arguments 

specifically addressing the unique aspects of our state constitutional 

privacy provisions, and therefore we do not consider those elements 

in our analysis. 

Our review begins with the presumption section 5B4B3 is 

constitutional, and we are constrained to construe that section as 

constitutional whenever reasonably possible. People v. Wilson, 214 

Ill. 2d 394, 398-99 (2005). As the challenger in this case, defendant 

bears the heavy burden of demonstrating a clear constitutional 

violation. Wilson, 214 Ill. 2d at 399. Since the constitutionality of a 

statute presents a question of law, we review this issue de novo. See 

Wilson, 214 Ill. 2d at 399. 

Defendant contends that section 5B4B3 is unconstitutional on its 

face because it requires no showing of Aspecial need@ or other 

justification for a suspicionless search. He also asserts the section is 

unconstitutional as applied to him as a felon convicted of a nonsexual 

offense due to the purportedly low chance that the DNA information 

stored in the database will be useful in solving or prosecuting future 

crimes. 

To mount a successful facial challenge, defendant must fulfill the 

difficult task of establishing the statute=s invalidity under any set of 
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facts. People v. Greco, 204 Ill. 2d 400, 407 (2003). In contrast, an Aas 

applied@ challenge requires defendant to show the statute violates the 

constitution as it applies to him. See Greco, 204 Ill. 2d at 407. We 

first consider defendant=s Aas applied@ challenge to the validity of 

section 5B4B3. 

Compelled blood extractions undeniably constitute searches 

within the meaning of the fourth amendment of the federal 

constitution (Skinner v. Railway Labor Executives Ass=n, 489 U.S. 

602, 616, 103 L. Ed. 2d 639, 659, 109 S. Ct. 1402, 1412-13 (1989)) 

and, as such, generally require the issuance of warrants due to the 

inherent interest individuals possess in their privacy and bodily 

integrity (Schmerber v. California, 384 U.S. 757, 770, 16 L. Ed. 2d 

908, 919, 86 S. Ct. 1826, 1835 (1966)). Similar constitutional 

protection is provided by the search and seizure provision of the 

Illinois Constitution. People v. Watson, 214 Ill. 2d 271, 280 (2005), 

citing In re May 1991 Will County Grand Jury, 152 Ill. 2d 381 

(1992). In evaluating the validity under the fourth amendment of this 

warrantless search, the critical issue is whether the intrusion was 

Areasonable,@ as that term has been judicially construed. See Watson, 

214 Ill. 2d at 280. Thus, we must determine whether the warrantless 

sampling and laboratory analysis of blood taken from all convicted 

felons in this state as mandated by section 5B4B3 constitutes a 

reasonable search. 

To answer this question, the parties present two alternative 

analytical possibilities: the special needs test and the pure balancing 

test. Under the special needs test, nonconsensual warrantless searches 

are permitted without particularized suspicion only if a Aspecial need@

exists apart from general law enforcement needs. Ferguson v. City of 

Charleston, 532 U.S. 67, 79, 149 L. Ed. 2d 205, 217, 121 S. Ct. 1281, 

1289 (2001). If a special need is found, then the court balances the 

parties= disparate interests to determine whether the intrusion is 

justified. If a special need is not found, the statute is deemed 

constitutionally infirm. Ferguson, 532 U.S. at 78, 149 L. Ed. 2d at 

216, 121 S. Ct. at 1288; see also People v. Lampitok, 207 Ill. 2d 231, 

243-53 (2003) (applying the special needs test where, during a 

warrantless search of the probationer=s motel room, police found 

items the probationer was barred from possessing under the terms of 

her probation order). 
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Defendant advocates the use of this approach here, asserting that 

the United States Supreme Court has applied it in the context of other 

warrantless searches. See Ferguson, 532 U.S. 67, 149 L. Ed. 2d 205, 

121 S. Ct. 1281; City of Indianapolis v. Edmond, 531 U.S. 32, 42, 

148 L. Ed. 2d 333, 344, 123 S. Ct. 447, 454 (2000). Consequently, he 

claims the appellate court erred by forgoing the special needs test in 

favor of the less rigorous pure balancing test. In that test, courts 

perform only the balancing portion of the special needs test without 

requiring the showing of a special need apart from general law 

enforcement. 

This balancing-only test has been relied on by many other 

jurisdictions confronted with fourth amendment challenges to DNA 

statutes similar to the one at issue here. Velasquez v. Woods, 329 F.3d 

420 (5th Cir. 2003); Schlicher v. (NFN) Peters, I&I, 103 F.3d 940 

(10th Cir. 1996); Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995); Jones 

v. Murray, 962 F.2d 302 (4th Cir. 1992); D.B. v. State, 861 So. 2d 4 

(Ala. Crim. App. 2003); In re Maricopa County Juvenile Action Nos. 

JV-512600 & JV-512797, 187 Ariz. 419, 930 P.2d 496 (App. 1996); 

L.S. v. State, 805 So. 2d 1004 (Fla. App. 2001); Patterson v. State, 

742 N.E.2d 4 (Ind. App. 2000); State v. Maass, 275 Kan. 328, 64 

P.3d 382 (2003); Landry v. Attorney General, 429 Mass. 336, 709 

N.E.2d 1085 (1999); Cooper v. Gammon, 943 S.W.2d 699 (Mo. App. 

1997); Gaines v. State, 116 Nev. 359, 998 P.2d 166 (2000); State ex 

rel. Juvenile Department v. Orozco, 129 Or. App. 148, 878 P.2d 432 

(1994); Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769 

(2000); Doles v. State, 994 P.2d 315 (Wyo. 1999). 

We note that the United States Supreme Court has not expressly 

addressed the propriety of either test in evaluating the 

constitutionality of DNA collection and analysis statutes. We need 

not venture a guess here as to that court=s ultimate decision on the 

issue because the outcome in this case is the same under either test. 

The primary purpose of section 5B4B3 is the creation of a criminal 

DNA database. Defendant asserts that this is not a special need apart 

from general law enforcement because the information in the 

database ultimately may be used to further future criminal 

investigations. We believe defendant=s expansive reading of the case 

law concerning the boundary between a special need and general law 

enforcement is flawed. Under defendant=s interpretation, any search 
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that could potentially advance a criminal investigation either 

immediately or at some unknown point in the future would constitute 

general law enforcement and, thus, would be unconstitutional in the 

absence of a warrant. The language and circumstances in Edmond

and Ferguson do not support such a broad approach. 

In Edmond, the Court emphasized the importance of examining 

the primary purpose of the search. In that case, Indiana=s primary 

purpose in establishing roadside checkpoints was to uncover ordinary 

criminal conduct involving illegal narcotics that was occurring at the 

time of the checkpoint stop. Edmond, 531 U.S. at 40-41, 148 L. Ed. 

2d at 343, 123 S. Ct. at 453-54. In Ferguson, the Court examined a 

state hospital program that tested pregnant women=s blood for drug 

usage without their consent. The Court concluded the program=s 

primary purpose was to obtain evidence of tested patients= criminal 

conduct to force them into treatment by threat of arrest and 

prosecution and noted the extensive police involvement throughout 

the development of the program. That primary purpose did not fall 

within the category of a special need. Ferguson, 532 U.S. at 84, 149 

L. Ed. 2d at 220, 121 S. Ct. at 1291-92. 

The purpose of creating a DNA profile database is distinct from 

the purposes found to exist in Edmond and Ferguson. In those cases, 

the search conducted uncovered only evidence of the tested 

individual=s past and present wrongdoings, without any benefit to 

future criminal investigations. Thus, evidence from a dragnet-style 

search was used as a springboard to uncover otherwise unknown 

criminal activity. 

Here, the statute figuratively puts the cart before the horse. The 

primary goal is not to uncover previously unknown crimes but to aid 

in the resolution of crimes after they have been committed. The 

database established by section 5B4B3 has little use unless crimes 

leaving behind a DNA trail are committed. If DNA from those crimes 

can be collected, the database may be useful in delineating the 

relevant pool of suspects by either identifying a particular individual 

or, equally important, excluding a potential suspect from 

consideration. This purpose is in stark contrast to those found to be 

invalid in Edmond and Ferguson. 

While the blanket searches in Edmond and Ferguson did not 

serve a special need outside that of general law enforcement, the 
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statutory searches here are Anot designed to discover and produce 

evidence of a specific individual=s criminal wrongdoings. [Citations.] 

Rather, they essentially prove nothing. [Citations.] That is, a DNA 

sample is evidence only of an individual=s genetic code, which does 

not, on its own, show the commission of a crime. [Citations.] >It is 

this distinction that removes the collection and cataloguing of DNA 

information from the normal need for law enforcement.= [Citations.]@

People v. Hall, 352 Ill. App. 3d 537, 549 (2004). See also United 

States v. Kimler, 335 F.3d 1132, 1146 (10th Cir. 2003) (noting that 

building a genetic database is beyond general law enforcement 

needs). While under a broad definition, the collection, analysis, and 

storage of DNA is ultimately related to solving crime, it remains only 

potentially useful for that purpose until a crime presenting an 

opportunity to compare DNA samples is committed. See Nicholas v. 

Goord, No. 01 CIV 7891 (S.D.N.Y. February 6, 2003) (explaining 

the primary purpose of the New York DNA indexing statute was not 

an ordinary purpose of law enforcement by stating: AObviously, 

obtaining a DNA sample for a databank is within the scope of law 

enforcement, broadly defined, and certainly has a relationship to the 

solving of crimes. But the primary purpose of collecting samples for 

the databank is not for the State to determine that a particular 

individual has engaged in some specific wrongdoing. Unlike a blood 

or urine sample that may contain traces of drugs, the samples of 

blood for the DNA databank prove nothing by themselves regarding 

whether the donor has committed a crime. *** They merely offer the 

potential that some very small percentage may be relevant to solving 

a crime that in all likelihood has not even been committed at the time 

of the search@). 

Moreover, our appellate court as well as courts in other 

jurisdictions have variously found that the main purpose of DNA 

sampling is to absolve innocents, identify the guilty, deter recidivism 

by identifying those at a high risk of reoffending, or bring closure to 

victims. People v. Butler, 354 Ill. App. 3d 57, 66-67 (2004) (finding 

the database may A >absolve the innocent= @ and give crime victims 

closure by taking the perpetrators off the street), quoting Kincade, 

379 F.3d at 839; United States v. Kincade, 379 F.3d 813, 838-39 (9th 

Cir. 2004) (finding that deterring recidivists and obtaining closure for 

victims Aundeniably compelling@ and Amonumental@ interests); In re 

Leopoldo L., 209 Ariz. 249, 254-55, 99 P.3d 578, 583-84 (1st Div. 
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2004) (noting the purposes of exonerating the innocent, identifying 

the guilty, and deterring recidivists); People v. Shreck, 107 P.3d 

1048, 1053 (Colo. App. 2004) (listing Aexonerating the innocent, 

solving past as well as future crimes, and deterring recidivism@); State 

v. Steele, 155 Ohio App. 3d 659, 671, 802 N.E.2d 1127, 1136 (2003) 

(acknowledging the purposes of creating a more accurate criminal 

justice system allowing for the exoneration of the innocent and the 

identification of the guilty in future crimes). We agree that all of 

these goals are distinct from traditional law enforcement practices 

designed to gather evidence in a particular case to solve a specific 

crime that has already been committed. Taken together, these 

purposes demonstrate a special need beyond ordinary law 

enforcement. 

Finally, defendant contends that even if the special needs prong is 

met, the appellate court misapplied the balancing test, finding that his 

privacy interests were outweighed by the State=s interest in Adeterring 

and prosecuting recidivist criminal acts@ (349 Ill. App. 3d at 856). 

The strength of the State=s interest is self-evident. Promoting an 

effective and accurate criminal justice system and increasing public 

safety through either deterrence or removal of criminal offenders 

from the streets is a fundamental concern of the State and law 

enforcement. 

Defendant argues, however, that on the other side of the 

balancing equation we must consider his privacy interest in his 

personal genetic information despite his status as a convicted felon. 

While we agree that a felony conviction does not obliterate all 

preexisting privacy rights, we recognize that those rights are 

significantly diminished. See United States v. Knights, 534 U.S. 112, 

119-20, 151 L. Ed. 2d 497, 505, 122 S. Ct. 587, 591-92 (2001); 

Sandin v. Conner, 515 U.S. 472, 485, 132 L. Ed. 2d 418, 431, 115 S. 

Ct. 2293, 2301 (1995) (quoting earlier case law stating that 

A > A[l]awful incarceration brings about the necessary withdrawal or 

limitation of many privileges and rights, a retraction justified by the 

considerations underlying our penal system@ = @); Bell v. Wolfish, 441 

U.S. 520, 558, 60 L. Ed. 2d 447, 481, 99 S. Ct. 1861, 1884 (1979); 

Lampitok, 207 Ill. 2d at 250-51. Also, the intrusion created by taking 

the blood sample authorized by the statute has been found to be 

insignificant. In Skinner v. Railway Labor Executives= Ass=n, 489 U.S. 

602, 625, 103 L. Ed. 2d 639, 665, 109 S. Ct. 1402, 1417 (1989), the 
-15-

Court found that the safety and virtual absence of discomfort 

involved in modern blood tests makes them a minimal intrusion on 

individual=s privacy and bodily integrity. In considering the 

constitutionality of other DNA sampling statutes, many other courts 

have also relied on this finding. See, e.g., Roe v. Marcotte, 193 F.3d 

72, 79 (2d Cir. 1999); Jones v. Murray, 962 F.2d 302, 307 (4th Cir. 

1992); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996); In re 

D.L.C., 124 S.W.3d 354, 373 (Tex. Ct. App. 2003). 

As for defendant=s assertion that his privacy interests remain high 

even in light of his felony conviction, we find the decision in United 

States v. Knights, 534 U.S. 112, 114-15, 151 L. Ed. 2d 497, 502-03, 

122 S. Ct. 587, 589 (2001), instructive. In that case, a condition of the 

defendant=s probation was his submission to warrantless searches of 

his home. During one of these searches, the police found evidence 

that he was involved in an arson conspiracy. The defendant argued 

the search violated his fourth amendment rights, and the Supreme 

Court noted that probationers= privacy rights are greatly reduced. 

Knights, 534 U.S. at 119-20, 151 L. Ed. 2d at 505, 122 S. Ct. at 591-

92. Similarly, the reasonable expectation of privacy of the defendant 

in this case is also substantially reduced due to his status as a 

convicted felon. See also Griffin v. Wisconsin, 483 U.S. 868, 875, 97 

L. Ed. 2d 709, 718, 107 S. Ct. 3164, 3169 (1987) (recognizing that 

the general public possesses greater liberty rights than probationers). 

Moreover, the statute limits access to the information stored in the 

database to Apeace officers@ (730 ILCS 5/5B4B3(f) (West 2002)), 

helping to ensure the information is used only for relevant, official 

purposes. 

Defendant next claims the link between the statute=s purpose in 

deterring and solving recidivist crime and its means as enacted in 

section 5B4B3 is weak because defendant is a nonsexual offender and 

thus unlikely to leave behind DNA evidence. In a related argument, 

he asserts that the State=s reliance on some of its out-of-state cases is 

inapposite because the statutes in those cases applied only to specific 

categories of felons. 

While DNA evidence is often left behind during the commission 

of sex offenses, myriad examples involving other felonies can also be 

imagined. For instance, hair or skin cells from an intruder could be 

found in a victim=s home or on clothing. Alternatively, a felon could 
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suffer an injury during the commission of a crime, leaving behind 

DNA evidence in blood or tissue. As techniques in DNA retrieval and 

analysis develop, the likely scenarios will undoubtedly multiply. 

Thus, defendant=s status as a nonsexual offender does not so attenuate 

the vital linkage between his reduced privacy interests and the State=s 

strong interest in deterring and solving crime, as well as providing 

closure for crime victims, as to tip the scales of the balancing test in 

his favor. We hold that the State=s interest in effective crime 

investigations and prevention, as advanced by section 5B4B3, 

outweighs defendant=s privacy interest as a convicted felon. 

Defendant=s constitutional challenge to section 5B4B3 as it applies to 

him is rejected. 

Having held that section 5B4B3 is constitutional as applied to 

defendant, his fourth amendment facial challenge to that section 

necessarily fails because under at least one set of facts the statute is 

constitutionally valid and our overbreadth doctrine has not been used 

outside the context of first amendment challenges. See People v. 

Greco, 204 Ill. 2d 400, 407 (2003). 

III. CONCLUSION 

For the reasons stated, we hold that there was sufficient probable 

cause to deny defendant=s motion to quash arrest and suppress the 

evidence, rejecting the appellate court=s contrary analysis. We also 

hold that the DNA sampling and database mandated by section 5B4B3 

is constitutional both as applied in defendant=s case and on its face. 

Accordingly, while we reject in part the appellate court=s rationale, 

we affirm its ultimate judgment. 

Appellate court judgment affirmed.

JUSTICE McMORROW, specially concurring: 

In deciding defendant=s claim that his postarrest statements should 

have been suppressed, the majority concludes that the police had 

probable cause to arrest defendant and it was therefore proper for the 

trial court to admit defendant=s custodial statements. This conclusion 

differs from that of the appellate court below, which held that the 
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police lacked probable cause to arrest defendant but the admission of 

defendant=s postarrest statements was harmless error. 349 Ill. App. 3d 

845, 851. I disagree with the majority=s conclusion. In my view, the 

appellate court=s disposition regarding this issue was correct. 

In order to effect a valid, warrantless arrest, a police officer must 

have probable cause to arrest. People v. Sims, 192 Ill. 2d 592, 614 

(2000). AProbable cause exists when the totality of the facts and 

circumstances known to the officers is such that a reasonably prudent 

person would believe that the suspect is committing or has committed 

a crime.@ People v. Montgomery, 112 Ill. 2d 517, 525 (1986), citing 

Dunaway v. New York, 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 833 

n.9, 99 S. Ct. 2248, 2254 n.9 (1979); Beck v. Ohio, 379 U.S. 89, 91, 

13 L. Ed. 2d 142, 145, 85 S. Ct. 223, 225 (1964); People v. Tisler, 

103 Ill. 2d 226, 237 (1984). AWhere the standard is probable cause, a 

search or seizure of a person must be supported by probable cause 

particularized with respect to that person.@ Ybarra v. Illinois, 444 

U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 342 (1979). 

Moreover, the determination as to whether there was probable cause 

to arrest is based on facts known to the police at the time the arrest 

was made. People v. Lee, 214 Ill. 2d 476, 484 (2005), citing People v. 

Chapman, 194 Ill. 2d 186, 217 (2000). AA warrantless arrest cannot 

be justified by what is found during a subsequent search incident to 

the arrest.@ Lee, 214 Ill. 2d at 484. AMere suspicion is inadequate to 

establish probable cause to arrest, but the evidence relied upon by the 

arresting officers does not have to be sufficient to prove guilt beyond 

a reasonable doubt.@ Sims, 192 Ill. 2d at 614-15. 

In the case at bar, the events leading up to defendant=s arrest were 

as follows. Officer Henninger of the Franklin Park police department, 

the sole witness at the hearing on defendant=s motion to suppress his 

custodial statements, testified that he received a call from dispatch 

sometime prior to 4:45 a.m. on December 29, 2001. The call 

indicated that Gerhardt Roth, who was at an Amoco gas station, 

reported that there was a van at the gas station with license plates that 

had been stolen from one of his company=s vans. When Officer 

Henninger arrived at the gas station, he noticed a white van with a 

CompUSA logo on the side, and a white passenger vehicle parked 

near the van. One of defendant=s codefendants, Lewis Taylor, was in 

the passenger vehicle, and defendant and the other codefendant, 

Michael Bennett, were in the gas station=s minimart. Officer 
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Henninger was approached by Roth, whose company was T&T 

Express, a shipping concern in the area. Roth told Officer Henninger 

that he had seen the CompUSA van and the white vehicle at his 

company earlier that morning, and he noticed that the license plate on 

the van had been stolen from one of his company=s vehicles. When 

the CompUSA van and the white vehicle left T&T Express, Roth said 

he followed them. Both the van and the white vehicle pulled into the 

Amoco gas station, as did Roth before he called the police. At the gas 

station, Roth told Officer Henninger that he saw three individuals 

(identified in court by Officer Henninger as defendant and his two 

codefendants) either Ain or around@ the van. Officer Henninger 

testified that he could not recall whether Roth knew exactly which of 

the individuals had been inside the van. 

A computer check on the van=s license plates indicated that they 

were stolen. Officer Henninger also ran a computer check on the 

van=s vehicle identification number and discovered that the van was 

stolen, as well. According to the testimony at the hearing, the two 

individuals who were in the minimart (defendant and Bennett) 

emerged at some point and approached Officer Henninger. While he 

was speaking to the two men, Officer Henninger received a radio 

message that police in Bensenville, about two miles away, were 

looking for a white CompUSA van and a white vehicle that may have 

been involved in a theft from Emery Worldwide. Officer Henninger 

also did a computer check on the three codefendants and discovered 

that Taylor was wanted on an outstanding warrant for driving with a 

suspended license. Officer Henninger arrested Taylor. According to 

Officer Henninger=s testimony, he also arrested defendant. 

At the time of defendant=s arrest, the police were aware that: (1) 

the license plates on the white CompUSA van were stolen, (2) the 

van itself was stolen, and (3) police in Bensenville were looking for a 

white CompUSA van and a white vehicle (possibly the vehicle that 

was parked near the CompUSA van at the gas station) in connection 

with a possible theft from Emery Worldwide. In addition, police were 

told by Roth at the gas station that he saw defendant and two other 

individuals Ain or around@ the CompUSA van. Police also knew, prior 

to defendant=s arrest, that Taylor, one of the codefendants, was 

wanted on an outstanding warrant for an unrelated offense. 
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While the facts and circumstances known to the police at the time 

of defendant=s arrest were such that a reasonably prudent person 

would believe that a crime or crimes had been or were being 

committed, there was nothing to support a reasonable belief that 

defendant committed these or any other crimes. The only evidence 

linking defendant to a crime was Roth=s statement that he had seen 

defendant and two other individuals Ain or around@ the CompUSA 

van. As the appellate court below asserted: 

AThis sole fact did not warrant the defendant=s arrest. The 

defendant could have been in or around the van for any 

number of lawful reasons.@ 349 Ill. App. 3d at 851. 

The appellate court explained: 

AThe fact that the defendant was in or around the van 

warranted reasonable suspicion, a standard less than probable 

cause, which would have entitled the police to question the 

defendant and investigate the situation further. Instead of 

doing so, however, the police simply arrested the defendant.@

349 Ill. App. 3d at 851. 

In the appellate court=s view, the police lacked probable cause to 

arrest defendant. Accordingly, Athe trial court should have suppressed 

any harmful statements made by the defendant subsequent to his 

arrest.@ 349 Ill. App. 3d at 851. I agree with the appellate court=s 

reasoning, which finds support in a recent decision of this court. 

In People v. Lee, 214 Ill. 2d 476 (2005), the defendant was one of 

three men arrested for violating Joliet=s drug-loitering ordinance. 

Police officers were dispatched to an intersection in an area that the 

city had designated Ahigh-drug@ and Ahigh-gang.@ The officers were 

sent to investigate a citizen complaint of three men selling drugs on 

the corner. The officers arrived at the intersection and saw the 

defendant and two other men standing on the corner. One of the 

officers knew that the defendant had previously been arrested for 

drug possession, and that one of the other two men was a member of 

a street gang. Lee, 214 Ill. 2d at 478-79. The officers parked about 

two blocks away and observed the men for about three to five 

minutes. The officers saw a van pull up to the curb and park, saw the 

three men speak to the driver, and saw the van drive away. The 

officers did not see an exchange of money or drugs. However, they 

believed that a drug transaction had taken place or was about to take 
-20-

place. When the van drove away, the officers approached the three 

men. A protective pat-down search disclosed no weapons or 

contraband. Nevertheless, the officers arrested defendant and the 

other two men for violating Joliet=s drug-loitering ordinance. A 

search incident to the arrest revealed cocaine in the defendant=s 

pocket. The defendant was charged with and convicted of drug 

possession offenses. Lee, 214 Ill. 2d at 478-81. 

This court held that the officers lacked probable cause to arrest 

the defendant for violating the drug-loitering ordinance. 

Consequently, this court reversed the defendant=s drug-possession 

convictions. The defendant stood on a corner with two other men. He 

did not make any hand gestures or place anything in his mouth or 

pockets. The officers observed a van pull to the curb where the 

defendant and the other two men were standing, but none of the three 

men had summoned the van. AFor all the officers knew, the driver of 

the van might have stopped and asked for directions, or to greet one 

or more acquaintances.@ Lee, 214 Ill. 2d at 486. The van then drove 

away. The officers did not see a drug transaction. This court 

concluded: A[T]he fact, by itself, that the officers found defendant in a 

certain area, without any overt act by defendant, does not establish 

probable cause for a warrantless arrest.@ Lee, 214 Ill. 2d at 486. In 

this court=s view, the facts available to the officers supported a 

reasonable suspicion that warranted further investigation. However, 

the officers did not conduct any further investigation to raise their 

reasonable suspicion to the level of probable cause for a warrantless 

arrest. Instead, the police arrested the defendant, and this court 

reversed his convictions, concluding that the arrest was improper. 

Lee, 214 Ill. 2d at 487-89. 

In the case at bar, the police knew that a crime had been 

committed. However, the question was whether defendant, in 

particular, had committed or was committing a crime. The police had 

enough information to justify a reasonable suspicion, but did not have 

enough information to support probable cause to arrest. As in Lee, the 

police could have questioned defendant and investigated the situation 

further. However, the police instead arrested defendant prematurely, 

without probable cause. 

My colleagues in the majority assert that Athere was far more 

evidence@ linking defendant to the stolen license plates than Roth=s 
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isolated statement that he had observed defendant in or around a van 

bearing those plates. Slip op. at 5. However, the evidence recounted 

by the majority is essentially the same as the evidence that was 

recounted by the appellate court below. And, as the appellate court 

concluded, there is nothing in this evidence, other than the statement 

that defendant was seen Ain or around@ the van, that would suggest a 

possible link between defendant and the commission of a crime. 

Notwithstanding the foregoing, the majority infers that defendant 

and his codefendants Awere connected with one another@ and, based 

in part on this inference of a connection, the majority concludes that 

defendant was involved in the theft of the license plate. The majority 

reasons as follows: 

A[L]ogic dictates that at least two persons had to have 

been involved in the theft at Roth=s company to have been 

able to drive both the van and the white car that followed it. 

There was no evidence the van or the car stopped anywhere to 

drop off any passengers or to pick up additional ones between 

leaving Roth=s company property and parking at the gas 

station. Thus, logically, the same individuals were in the van 

and the car when the vehicles left Roth=s company property 

and when they parked at the gas station. Moreover, Officer 

Henninger did not recall seeing any other customers at the gas 

station. 

One man was observed in the white car parked near the 

van at the gas station. Defendant was one of two other men 

who together came out of the convenience store and 

approached Officer Henninger. Roth identified defendant as 

one of the men he had previously seen in or around the van. 

Based on these facts, it was reasonable to infer that the three 

men were connected with one another and had been 

personally observed by the eyewitness and identified as the 

same men who had been in or around the van bearing the 

stolen license plate. Based on this connection, the brief time 

that had passed since the theft of the license plate, and the 

implausibility that anyone had left or entered the vehicles 

between their departure from Roth=s property and their arrival 

at the gas station, it was reasonable to conclude defendant 

was involved in that crime.@ Slip op. at 5-6. 
-22-

I note, initially, that, while it might be logical to infer that at least 

two persons were involved in the theft of the license plate, it does not 

necessarily follow that more than two were involved. There was 

nothing in the evidence available to the police at the time of 

defendant=s arrest to indicate that it was defendant and a codefendant, 

rather than the other two codefendants, who were involved in the 

theft. More important, even if it is assumed, arguendo, that there 

were grounds to infer a connection between the three defendants, 

such an inference is insufficient to support probable cause. The 

requirement that probable cause must be particularized with respect 

to the person arrested cannot be undercut or avoided by simply 

pointing to the fact that coincidentally there exists probable cause to 

arrest another individual who is in the company of that person. 

Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 

338, 342 (1979); Lee, 214 Ill. 2d at 486; see also United States v. Di 

Re, 332 U.S. 581, 592-94, 92 L. Ed. 210, 219-20, 68 S. Ct. 222, 227-

28 (1948) (holding that the presence of the defendant in an 

automobile with a suspected criminal and a government informant 

did not supply a law enforcement officer with probable cause to arrest 

the defendant on a conspiracy theory). In the case at bar, an inference 

of a connection between defendant and the other two codefendants 

might have supported a reasonable suspicion, but it was insufficient 

to furnish probable cause for a warrantless arrest. Accordingly, the 

police lacked probable cause to arrest defendant, and the trial court 

should have granted defendant=s motion to suppress his postarrest 

inculpatory statements. 

While I would hold that defendant=s custodial statements should 

have been suppressed, I would also hold, as did the appellate court, 

that the admission of these statements was harmless beyond a 

reasonable doubt. A >[B]efore a federal constitutional error can be held 

harmless, the court must be able to declare a belief that it was 

harmless beyond a reasonable doubt.= @ Harrington v. California, 395 

U.S. 250, 251, 23 L. Ed. 2d 284, 286, 89 S. Ct. 1726, 1727 (1969), 

quoting Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 

710-11, 87 S. Ct. 824, 828 (1967). In determining whether a 

constitutional error is harmless, the test to be applied is whether it 

appears beyond a reasonable doubt that the error at issue did not 

contribute to the verdict obtained. Sullivan v. Louisiana, 508 U.S. 

275, 279, 124 L. Ed. 2d 182, 189, 113 S. Ct. 2078, 2081 (1993). 
-23-

After reviewing the record in the case at bar, the appellate court 

concluded that defendant=s postarrest statementsBhis request that his 

wallet be retrieved from the van and his admission that he was in the 

area of Emery Worldwide on the morning in questionBwere not 

material to the trial court=s guilty finding. 349 Ill. App. 3d at 852. The 

appellate court pointed to the following evidence, which the court 

held was admissible and Awould not have been subject to exclusion as 

fruit of the poisonous tree.@ 349 Ill. App. 3d at 852. In the early 

morning of December 29, 2001, an employee of Emery Worldwide in 

Bensenville observed a white CompUSA van and a white passenger 

vehicle near Emery Worldwide=s loading dock. Computer equipment 

was being stored in that area in a tractor trailer. Subsequently, police 

found a white CompUSA van and a white passenger vehicle in a gas 

station parking lot in nearby Franklin Park. Police determined that the 

van was stolen. Defendant and his two codefendants were seen in the 

vicinity of the stolen van. Police inventoried the contents of the van 

and found $40,000 worth of computer equipment belonging to Emery 

Worldwide. Also found in the van were a wallet stipulated by 

defendant to be his, an article of clothing belonging to one of the 

codefendants, and hand-held, two-way radios. Police found a 

matching hand-held radio in the white passenger vehicle. 

With regard to the wallet found in the van, the record contains the 

following stipulated fact: Franklin Park police Afound in the white 

COMP U.S.A. van the Defendant=s wallet.@ This fact is independent 

of defendant=s custodial request that his wallet be retrieved from the 

van. 

In view of the evidence recounted by the appellate court, which 

excludes defendant=s postarrest inculpatory statements, I agree with 

the appellate court that the improper admission of these custodial 

statements did not contribute to defendant=s conviction. The appellate 

court correctly concluded that the admission of defendant=s postarrest 

statements was harmless beyond a reasonable doubt. 

Accordingly, I concur in the majority=s affirmance of the 

appellate court=s judgment. However, I disagree with the reasoning 

employed by the majority in reaching this decision. 

I also concur in the majority=s decision upholding the 

constitutionality of section 5B4B3 of the Unified Code of Corrections 

(730 ILCS 5/5B4B3 (West 2002)). The majority applies both the 
-24-

special needs test and the balancing test, and demonstrates correctly 

that section 5B4B3 is constitutional under either analysis. 

JUSTICE FREEMAN joins in this special concurrence.