State v. Martin

¶ 1. These consolidated appeals from the Addison and Chittenden District Courts present the question of whether the State may, in keeping with Chapter I, Article 11 of the Vermont Constitution, require convicted nonviolent felons to provide DNA samples for inclusion in state and federal DNA databases under the terms of 20 V.S.A. §§ 1931-1946. We conclude that it may. Accordingly, we affirm the judgment of the Addison District Court and reverse the judgment of the Chittenden District Court.

I. The Vermont DNA Database and Data Bank

¶ 2. Since 1998, Vermont has required at least some felons to submit a DNA sample for analysis and inclusion in the state and federal DNA databases. See 1997, No. 160 (Adj. Sess.), § 1 (effective April 29, 1998). The purposes of the DNA-sampling statute, as the Legislature announced in 1998, are as follows:

It is the policy of this state to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes. Identification, detection and exclusion may be facilitated by the DNA analysis of biological evidence left by the perpetrator of a violent crime and recovered from the crime scene. The DNA analysis of biological evidence can also be used to identify missing persons.

*2820 V.S.A. § 1931. These express purposes remain unchanged.

¶ 3. Under § 1933 of the 1998 statute, only certain offenders were required to submit to DNA sampling: those convicted of certain listed felonies, 20 V.S.A. § 1932(12)(A)-(Q) (2000); those convicted of an attempt to commit a listed felony, id. § 1932(12)(R); and those whose plea agreements included a sampling requirement, id. § 1932(12)(S). In 2005, the Legislature amended the DNA statute, expanding the list of crimes to include all felonies and attempted felonies. See 2005, No. 83, § 7 (effective June 28, 2005) (codified as amended at 20 V.S.A. § 1932(12)). The amended statute provides that:

(a) The following persons shall submit a DNA sample:

(1) every person convicted in a court in this state of a designated crime on or after the effective date of this subchapter; and

(2) every person who was convicted in a court in this state of a designated crime prior to the effective date of this subchapter and, after the effective date of this subchapter, is:

(A) in the custody of the commissioner of corrections pursuant to 28 Y.S.A. § 701;

(B) on parole for a designated crime;

(C) serving a supervised community sentence for a designated crime; and

(D) on probation for a designated crime.

20 V.S.A. § 1933 (Cum. Supp. 2007). At issue in these appeals is the application of the amended statute to nonviolent felons, who would not have been subject to sampling under the 1998 enactment.

¶ 4. A DNA sample is “a tissue sample” and “may be blood or other tissue type specified by the [Djepartment [of Public Safety].” Id. § 1932(5). Samples must be taken using the “least intrusive means” that the Department of Public Safety (DPS) determines are scientifically reliable. Id. § 1934(a). The DPS regulations currently in force state that “[a]ll DNA samples will consist of a tube of blood unless the DPS develops a less invasive method. That method would then become the method to collect *29DNA samples.” DNA Database Unit Operating Policy and Procedures § III.A.1, 8 Code of Vermont Rules 28 060 001-3 to -4.

¶ 5. The statute authorizes three uses for the DNA samples. First, the samples may be analyzed “to type the genetic markers ... for law enforcement identification purposes.” Id. § 1937(a)(1). The typing tests produce a “DNA record,” or “profile,” of the sample. Id. § 1932(4). It is this profile that serves to uniquely identify the sampled individual. The profile may be stored in either a state DNA database, the federal Combined DNA Index System (CODIS), or other foreign databases. Id. §§ 1932(4), 1936.1 Second, “if personal identifying information is removed, [DNA samples may be used] for protocol development and administrative purposes, including: (A) development of a population database; (B) to support identification protocol development of forensic DNA analysis methods; and (C) for quality control purposes.” Id. § 1937(a)(2). Finally, DNA samples may be used to identify human remains. Id. § 1937(a)(3).

¶ 6. Section 1941 provides that all DNA samples “shall be confidential” and “shall not be used for any purpose other than as provided in [§ 1937]” or to identify missing persons. The statute also provides both criminal and civil penalties for violations of the confidentiality provisions. See id. § 1941(c) (“Any person who intentionally violates this section shall be imprisoned not more than one year or fined not more than $10,000.00, or both.”); id. § 1941(d) (“Any individual aggrieved by a violation of this section may bring an action for civil damages including punitive damages, equitable relief, including' restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney’s fees and other appropriate relief.”). Penalties are also provided for tampering with DNA samples. Id. § 1945 (“A person who knowingly or intentionally, without lawful authority, tampers or attempts to tamper with a DNA sample shall be imprisoned not more than three years or fined not more than $10,000.00, or both.”). The statute further requires expungement of DNA records and destruction of samples if a person’s conviction is reversed on appeal or if a person is granted a full pardon. Id. § 1940.

*30II. Procedural History

¶ 7. These cases comprise the appeals of ten defendants convicted of “designated crimes” between 1999 and 2005. See 20 V.S.A. § 1932(12). Defendant George Dean Martin was convicted in 2004, in the Addison District Court, of two counts of boating while intoxicated, death resulting.2 3****The other nine defendants’ convictions, all in Chittenden District Court, were for the following offenses: conspiracy to deliver cocaine, escape, larceny, false pretenses, possession of marijuana, violation of conditions of release, possession of heroin, violation of probation, third-offense driving under the influence, aiding in the commission of a felony, and violation of an abuse-prevention order. These offenses are felonies, and all of the defendants here are therefore subject to the sampling requirements in the amended § 1933 3

¶ 8. Defendant Martin and the nine Chittenden defendants all refused to provide samples, and the State moved to compel them to provide same. See 20 Y.S.A. § 1935(a) (“If a person who is required to provide a DNA sample under this subchapter refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person to provide the sample.”). The Addison court granted the State’s motion, concluding that the sampling statute did not run afoul of either the Fourth Amendment or Article 11. The Chittenden court, by contrast, denied the motion and granted defendants’ motions to dismiss, holding that the expansion of the sampling statute to require samples from all felons, though permissible under the Fourth Amendment, violated Article 11. Defendant Martin appeals the Addison court’s order, and the State appeals the Chittenden order. See 20 V.S.A. § 1935(g) (providing appeal to this Court as a matter of right from decision on motion to require DNA sample). Both appeals squarely present the question of whether *31Vermont’s DNA database statute, as applied to nonviolent felons, violates Chapter I, Article 11 of the Vermont Constitution. We review this question of law de novo.4

III. Article 11

¶ 9. Vermont’s Chapter I, Article 11, though “similar in purpose and effect” to the Fourth Amendment to the United States Constitution, State v. Record, 150 Vt. 84, 86, 548 A.2d 422, 424 (1988), provides freestanding protection that in many circumstances exceeds the protection available from its federal counterpart. See, e.g., State v. Berard, 154 Vt. 306, 310-11, 576 A.2d 118, 120-21 (1990). Like the Fourth Amendment, “Article 11 does not contemplate an absolute prohibition on warrantless searches or seizures, but circumstances under which warrantless searches or seizures are permitted must be jealously and carefully drawn.” State v. Welch, 160 Vt. 70, 78-79, 624 A.2d 1105, 1110 (1992). We do not lightly depart from the warrant and probable-cause requirements, as we noted in Berard:

Whatever the evolving federal standard, when interpreting Article Eleven, this Court will abandon the warrant and probable-cause requirements, which constitute the standard of reasonableness for a government search that the Framers established, only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.

154 Vt. at 310-11, 576 A.2d at 120-21 (quotations and citations omitted). Requiring the State to demonstrate that it has special needs for a warrantless, suspicionless search or seizure “focuses attention on the nature and extent of those needs and allows the courts, as the traditional protectors of Fourth Amendment rights, to pursue the necessary balancing test in a manner calculated to interfere least with preservation of those rights.” Id. at 311, 576 *32A.2d at 121.5 Once we determine that a special need exists, we balance the need served against the privacy intrusion at stake. Id. at 313, 576 A.2d at 122. This is at root a balancing between the constitutional imperatives announced in Article 11 and Article 1. Cf. Record, 150 Vt. at 87, 548 A.2d at 424 (“We recognize that in order to preserve Article One interests the government may properly exercise its inherent power to limit in a very minor way the mobility of some of its citizens.” (quotations omitted)).6 As a backdrop to our analysis of the DNA sampling statute, we recount the development of our special-needs jurisprudence.

¶ 10. We begin with a case, State v. Record, that predates our adoption of the special-needs exception, but which is nonetheless instructive for the case at bar. 150 Vt. 84, 548 A.2d 422. In *33Record, we upheld a program of random roadside sobriety checkpoints against an Article 11 challenge. We noted that “[t]he primary evil sought to be avoided by Article Eleven was the issuance and enforcement of general warrants.” Id. at 85, 548 A.2d at 423 (citing Lincoln v. Smith, 27 Vt. 328, 346 (1855))7 The framers abhorred the general warrant because they did not believe that “it should be left to the officer to judge of the ground of suspicion; but that this belonged to the magistrate.” Lincoln, 27 Vt. at 350. We held in Record, however, that the seizures at the sobriety checkpoint were justified because they “enabled the police to apprehend intoxicated drivers who may have otherwise posed a serious threat to society.” 150 Vt. at 86, 548 A.2d at 424. Further, the evil sought to be prevented by Article ll’s bar on general warrants — to wit, unchecked discretion in agents of the state to search, seize, or arrest — was minimized because “the written police guidelines prevented arbitrary police conduct, and the scope of the roadblock was narrowly drawn.” Id.

¶ 11. Our special-needs jurisprudence began as such with State v. Berard, 154 Vt. 306, 576 A.2d 118, in which we upheld random, suspicionless searches of prison cells. In Berard, we adopted the special-needs test suggested by Justice Blackmun’s dissent in O’Connor v. Ortega, 480 U.S. 709, 741, 744 n.8 (1987). We concluded in Berard that “court[s] should invoke a balancing test as the measure of [Article 11] values only when the warrant and probable cause requirements do not present a practical alternative.” 154 Vt. at 311, 576 A.2d at 121. “ ‘Through the balancing test, [courts] then try to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances. The warrant and probable-cause requirements, however, continue to serve as a model in the formulation of the new standard.’ ” Id. (quoting O’Connor, 480 U.S. at 744 n.8 (Blackmun, *34J., dissenting)). We concluded that the State had met its burden, in Berard, of showing “that the prison environment presents special needs which ‘make the warrant and probable-cause requirement impracticable.’ ” Id. at 312, 576 A.2d at 121 (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the judgment)). We based this conclusion on “the inexorable nature of prison governance in general,” on a trial court finding that “[possession of contraband by inmates is an ongoing concern among correctional officials,” and on the fact that prisons would be hard-pressed to fulfill their statutory duty to “maintain security, safety and order at the correctional facilities” without “an effective procedure for detecting contraband.” Id. at 312-13, 576 A.2d at 121-22 (quotations omitted). We further noted that prisoners’ “expectation of privacy [is] considerably diminished at best.” Id. at 311, 576 A.2d at 121.

¶ 12. In our next special-needs case, State v. Richardson, we upheld the warrantless seizure of a gun from an about-to-be-impounded automobile at a DUI stop. 158 Vt. 635, 635, 603 A.2d 378, 378 (1992) (mem.). Although Richardson, a brief entry order, contains no prolonged analysis, its rationale was that the seizure was justified by “ ‘concern for the safety of the general public who might be endangered if an intruder removed [the gun].’ ” Id. (quoting Cady v. Dombrowski, 413 U.S. 433, 447 (1973)). As we noted in Richardson, the seizure was made without benefit of the “established departmental procedures” that governed the officers in Cady, but the lack of such procedures was of no moment in light of the “obvious prudence” of the Richardson officers and the “unacceptable danger to the public at large.” Id. at 635-36, 603 A.2d at 379.

¶ 13. The following year, in State v. Lockwood, we considered the validity of a probation condition requiring a developmentally disabled sex offender to submit to “ ‘body, clothing, [and] residential search as required.’ ” 160 Vt. 547, 549, 632 A.2d 655, 658 (1993) (alteration in original). We concluded that “the special needs of the state in administering its probation program created an exception to the warrant requirement and permit[] a degree of ‘impingement upon privacy that would not be constitutional if applied to the public at large.’ ” Id. at 559, 632 A.2d at 663 (quoting Griffin v. Wisconsin, 483 U.S. 868, 875 (1987)). Our narrow holding in Lockwood — that when “officers have reasonable grounds ... to conduct a search under the authority of a *35condition of probation, Article 11 does not require a search warrant” — was explicitly premised on the probation system’s public-protection goals and the diminished privacy rights of probationers. Id. at 559-60, 632 A.2d at 663. Although our special-needs cases are limited in number, their principles guide our analysis here.

A. The DNA-Database Statute is Subject to Article 11

¶ 14. As a threshold matter, we agree with the many courts that have held that DNA sampling, by blood draw or by cheek swab, is subject to constitutional protections. See, e.g., Amerson, 483 F.3d at 77 (“It is settled law that DNA indexing statutes, because they authorize both a physical intrusion to obtain a tissue sample and a chemical analysis to obtain private physiological information about a person, are subject to the strictures of the Fourth Amendment.”); United States v. Nicolosi, 885 F. Supp. 50, 55-56 (E.D.N.Y. 1995) (cheek swab is physically intrusive to a degree sufficient to trigger Fourth Amendment protection); Landry, 709 N.E.2d at 1090 (DNA sampling subject to state constitutional protections). The initial taking of the DNA sample, either by blood draw or by buccal swab, and the subsequent analysis, storage, and searching of the DNA profile are independent intrusions upon personal security that merit scrutiny under Article 11.

B. The Existence of a “Special Need”

¶ 15. The State contends that the DNA statute serves several special needs: “(1) deterrence of all criminal conduct, (2) accurate identification of perpetrators, (3) exclusion of innocent suspects, and (4) assistance in the identification of missing persons.” Defendants argue that the primary purpose of the sampling statute is articulated in the first sentence of 20 V.S.A. § 1931, which states: “It is the policy of this state to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes.” Accordingly, defendants contend that the primary purpose of the statute is normal law enforcement, and that the probable-cause and warrant requirements therefore apply. We conclude that the statute does serve special needs beyond normal law enforcement.

*36¶ 16. We agree, as an initial matter, with the Supreme Court of New Jersey’s conclusion that DNA database statutes like ours fill special needs in part because, “[a]lthough the enumerated purposes may involve law enforcement to some degree, the central purposes of the DNA testing are not intended to subject the donor to criminal charges.” O’Hagen, 914 A.2d at 278. The New Jersey court went on to clarify:

Here, the primary purposes of the DNA tests are to create a DNA database and to assist in the identification of persons at a crime scene should the investigation of such crimes permit resort to DNA testing of evidence. That is a long-range special need that does not have the immediate objective of gathering evidence against the offender.

Id. at 279 (citation omitted and emphasis added).

¶ 17. This distinction was based on three U.S. Supreme Court special-needs cases that mark the boundaries of the Fourth Amendment special-needs doctrine. The cases are: Illinois v. Lidster, 540 U.S. 419, 427-28 (2004) (upholding brief seizure of motorists at roadblock seeking information about hit-and-run accident already known to have occurred); Ferguson v. City of Charleston, 532 U.S. 67, 84 (2001) (drug-testing program for pregnant women did not serve special needs; primary purpose was to use the threat of criminal prosecution based on the test results to “force women into treatment”); and City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (police checkpoint for “crime control” does not serve a special need; Court “cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime”). “Under these cases,” the O’Hagen court concluded, “suspicionless searches are unconstitutional if the immediate purpose is to gather evidence against the individual for general crime control purposes. On the other hand, if the core objective of the police conduct serves a special need other than immediate crime detection, the search may be constitutional.” 914 A.2d at 279.

¶ 18. Of similar import on this point are the Second Circuit cases considering the federal, New York, and Connecticut DNA database statutes. See United States v. Amerson, 483 F.3d *3773 (2d Cir. 2007) (federal statute); Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) (New York statute), cert. denied, 549 U.S. 953, 127 S. Ct. 384 (2006); Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999) (Connecticut statute). The Second Circuit’s analysis of Edmond, Ferguson, and Lidster closely parallels the O’Hagen court’s. See Amerson, 483 F.3d at 80-81; Goord, 430 F.3d at 663. Lidster, as the Goord court wrote, requires

a more nuanced approach to law-enforcement concerns. . . . Lidster instructs courts to examine carefully the type of law-enforcement concern served by a particular search or seizure regime. . . . [W]e find it crucial that the state, in collecting DNA samples, is not trying to determine that a particular individual has engaged in some specific wrongdoing. Although the DNA samples may eventually help law enforcement identify the perpetrator of a crime, at the time of collection, the samples in fact provide no evidence in and of themselves of criminal wrongdoing, and are not sought for the investigation of a specific crime.

Goord, 430 F.3d at 668-69 (quotations and citation omitted). As noted above, the principal evil sought to be remedied by Article 11 and its federal and state counterparts was the issuance of general warrants and the concomitant vesting of officers of the state with unlimited discretion to intrude upon the privacy interests of particular individuals of their choice without particularized suspicion, in the hope of immediately discovering wrongdoing.

¶ 19. We conclude that the O’Hagen reasoning also applies under Article 11, and that DNA sampling and analysis to assist in identifying persons at future crime scenes is a special need beyond normal law enforcement. Vermont’s DNA database statute has as its stated purpose “to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes.” 20 V.S.A. § 1931. These purposes are distinct from the normal law-enforcement activities of investigating particular people for crimes already committed.

¶ 20. Although the structure of § 1931 makes clear that identifying missing persons is not the primary purpose of the *38statute, its presence highlights that the statute is not, as a general matter, concerned with “ordinary law enforcement.” Rather the statute seeks to use DNA to accurately and efficiently identify persons in a variety of contexts, including subsequent criminal prosecutions.8 These goals are beyond the normal goals of law enforcement. We note, finally, that the statute also serves another special need beyond those stated in § 1931: deterrence. Although the question of whether — and to what extent — a particular penological strategy will deter crime is fraught with uncertainty, we think it plain that at least some deterrent effect will accrue if felons know that their DNA has been sampled and indexed and might someday be detected at a crime scene if they reoffend.

C. Special-Needs Balancing Test

¶ 21. Having concluded that the DNA statute serves special needs beyond normal law enforcement, we turn to a balancing of the competing public and private interests at stake. See Berard, 154 Vt. at 317, 576 A.2d at 124 (balancing the state’s need for effective prison-cell searches against inmates’ right to be free from “unreasonably invasive or arbitrary treatment”); O’Hagen, 914 A.2d at 279-81. The State asserts that the public’s interests in the DNA database and data bank are: “(1) deterrence of all criminal conduct, (2) accurate identification of perpetrators, (3) exclusion of innocent suspects, and (4) assistance in the identification of missing persons.” Defendants characterize the State’s interest as “general law enforcement” and assert that it is outweighed by sampled individuals’ interest in keeping private the “personal genetic traits” revealed by DNA analysis. There are two intrusions at issue: (1) the initial sampling by buccal swab, and (2) the subsequent analysis, indexing, and searching of the information obtained.

¶ 22. We first consider the privacy interests involved in the initial sampling. As noted, the record does not conclusively establish which collection method will be employed. The statute does mandate, however, that the least intrusive available means be used, and the State has averred, without opposition, that the *39samples will be taken by cheek swab. Further, although the record in these appeals is not altogether clear, at the time of our decision in In re R.H., the DPS was using cheek swabs to obtain DNA samples. 171 Vt. 227, 288, 762 A.2d 1239, 1247 (2000). As the statute requires the least-intrusive scientifically valid means of collection, it is safe to suppose that cheek swabs remain as viable today as they were at the time of R.H. Accordingly, our analysis assumes the DPS will use cheek swabs to obtain DNA.

¶23. In R.H., we upheld the use of a nontestimonial identification order (NTO) based on less than probable cause to compel a suspect to submit to DNA sampling by cheek swab. We concluded that taking a DNA sample by that method was less intrusive than taking a blood sample, see Schmerber v. California, 384 U.S. 757, 769-70 (1966), or a pubic hair sample, see State v. Towne, 158 Vt. 607, 621, 615 A.2d 484, 492 (1992), and could therefore be justified by reasonable suspicion rather than probable cause in the NTO context. In re R.H., 171 Vt. at 234, 762 A.2d at 1244. The suspect in R.H. was neither incarcerated nor under any other form of supervision by the state at the time of the order; accordingly, his expectations of privacy were undiminished. R.H. also highlights the different protections applicable when DNA sampling is conducted to investigate a particular crime and potentially subject the sampled individual to immediate criminal charges. Although R.H. does not answer the question before us, we find no reason to depart from our unanimous statement in R.H. that the initial sampling is minimally intrusive. Accord O’Hagen, 914 A.2d at 280 (“[A buccal swab] is no more intrusive than the fingerprint procedure and the taking of one’s photograph that a person must already undergo as part of the normal arrest process.”). We have also held, in Lockwood, that probationers are subject to “ ‘impingements] upon privacy that would not be constitutional if applied to the public at large.’ ” 160 Vt. at 559, 632 A.2d at 663 (quoting Griffin, 483 U.S. at 875). The initial sampling, taken alone, does not violate Article 11.

¶ 24. Defendants contend, however, that the principal intrusion into interests protected by Article 11 occurs after the initial sampling, when the sample is analyzed to yield a profile, and the profile is included in the database. See 20 V.S.A. §§ 1936-1939. Citing Goord, 430 F.3d at 670, defendants’ principal argument is that “[t]he analysis of an individual’s DNA reveals personal genetic traits that many people choose to keep private” and that *40such analysis is a “far greater intrusion” into protected privacy interests than the initial sampling. The Chittenden District Court agreed:

Analysis of DNA is an intrusion into personal information which many people choose to keep private. It is unique to the individual, and contains information concerning the person’s medical conditions and frailties, paternity and other familial!] relationships. DNA analysis not only identifies an individual, but also members of his or her family. Under Article 11, Vermonters have a reasonable expectation of privacy in their DNA. If this were not the case, an NT0 based on reasonable suspicion would not be required before a DNA sample could be taken.

¶ 25. A few opinions lend support to defendants’ argument, envisioning an inexorable march from DNA databases like Vermont’s to a dystopian future of eugenics, gene-based discrimination, and other horribles worthy of Aldous Huxley.9 See, e.g., Kincade, 379 F.3d at 847, 851 (Reinhardt, J., dissenting) (asserting that “in the hands of an administration that chooses to exalt order at the cost of liberty, the database could be used to repress dissent or, quite literally, to eliminate political opposition” and that “we all have reason to fear that the nightmarish worlds depicted in films such as Minority Report [in which genetically altered ‘precognitives’ are able to see into the future] and Gattaca [in which the protagonist purchases a superior genetic identity in order to be chosen for a mission to Saturn] will become realities” (quotation and citation omitted)). Similarly, a federal district court judge in Massachusetts recently concluded that the federal DNA database statute was unconstitutional as applied to a probationer because “all information collected will one day be exploited.” United States v. Stewart, 468 F. Supp. 2d 261, 280 (D. Mass. 2007) (Young, J.). Suffice it to say that these fears — which are echoed in defendants’ briefs — find little foundation in the statute before *41us today, which does not authorize or make possible such encroachments.10

¶26. Rather, what the statute authorizes is the creation, storage, and searching of a unique alphanumeric identifier based on analysis of thirteen locations on DNA that are not associated with any known physical trait. This identifier is the only information contained in each person’s database profile, see 20 Y.S.A. § 1932(4), and reveals no information about “personal genetic traits that many people choose to keep private,” as appellants contend. See, e.g., Goord, 430 F.3d at 670 (“The junk DNA that is extracted has, at present, no known function, except to accurately and uniquely establish identity. Although science may someday be able to unearth much more information about us through our junk DNA, that capability does not yet exist, and, more importantly, the New York statute prohibits such analysis.”); see also, e.g., J. Grand, Note, The Blooding of America: Privacy and the DNA Dragnet, 23 Cardozo L. Rev. 2277, 2320 (2002) (“By limiting the amount of genetic information included in a profile, the CODIS database is practical for identification purposes only.”); D. Kaye, Two Fallacies About DNA Data Banks for Law Enforcement, 67 Brook. L. Rev. 179, 188 (2001) (“The thirteen *42standard identifying loci used in [CODIS] . . . are noncoding, and none is known to correlate with any observable traits — stigmatizing or otherwise”).

¶ 27. Like the New York statute at issue in Goord, the statute we consider today expressly prohibits analysis of DNA samples for any but three narrow purposes: creating a profile for inclusion in CODIS and the state database, 20 V.S.A. § 1932(4); administrative purposes and protocol development, if all individual identifying information is removed from the sample, id. § 1937(a)(2); and identifying human remains, id. § 1937(a)(3). The intrusions occasioned by these uses are minimal and, like searching a fingerprint database, reveal nothing more than mere identity.11 The dissent also relies on an article, D. Concar, What’s in a Fingerprint, New Scientist, May 5, 2001, at 9, which is not part of the record on appeal, see V.R.A.P. 10, and which is plainly not material a court might properly take judicial notice of. See Reporter’s Notes, Y.R.E. 201, and cases cited therein. As a general matter, facts may be noticed when they are either generally known or “capable of accurate and ready determination *43by resort to sources whose accuracy cannot reasonably be questioned.” V.R.E. 201(b); accord Advisory Committee Notes, F.R.E. 201(a) (noting that “[a] high degree of indisputability is the essential prerequisite” for taking judicial notice of adjudicative facts); 21B C. Wright & K. Graham, Federal Practice & Procedure § 5106, at 204 n.27 (2d ed. 2005) (“[T]he direct proof of . . . scientific publications by qualified experts would be highly preferable to the rather chancy procedure by which a court may take judicial notice of things about which it could easily be mistaken.” (quotation and citation omitted)). It would exceed our authority, and our expertise, to determine that this single article — or any other article we might unilaterally select — conveys the truth about the DNA sampling at issue here.

¶28. Wrongful disclosures of DNA-based information are arguably more likely than discriminatory misuse, but that prospect also does not render the DNA-database statute unreasonable under Article 11. The arguments from potential disclosure fail because we presume that the Department of Corrections will comply with the limitations in the regulation. See Judicial Watch, Inc. v. United States Dep’t of Health & Human Servs., 27 F. Supp. 2d 240, 243 (D.D.C. 1998) (“The Court must presume . . . that the Executive Branch is aware of its duty ... to faithfully execute the law as enacted . . . .”); City of Marina v. Bd. of Trustees, 138 P.3d 692, 708 (Cal. 2006) (“[T]he courts ordinarily presume that the government . . . will comply with the law”). Should the Department of Corrections or anyone else wrongfully disclose protected information, remedies are provided by statute. See 20 Y.S.A. § 1941; supra, ¶ 6.

¶29. The dissent argues that “[i]t is no answer to the invasion of privacy permitted by [this] opinion that the statute provides for both criminal and civil remedies for wrongful disclosure of private information obtained pursuant to the DNA database statute.” Post, ¶ 67. The concern is that the state and federal governments “have in the past failed to protect individuals’ privacy rights when tasked with maintaining large stores of personal information.” Id. There are several responses to this. First, we are not asked to evaluate the State’s ability to follow the statute the Legislature enacted. See City of Marina, 138 P.3d at 708 (courts ordinarily assume that other branches of government will comply with the law as written). If that were our task, and had it been *44the trial court’s, the record before us would look very different than it does, and the trial court would presumably have made some findings on the subject. We would not be left to rely on newspaper articles selected based on undisclosed criteria and written largely after the record was complete in this appeal. See post, ¶ 67 (citing newspaper articles dated January 30, 2007; March 9, 2006; and March 9, 2007). Second, we decide actual cases and controversies, not hypothetical questions. See supra, ¶ 25 n.10 and authorities cited therein. Thus, the possibility that the State might accidentally or intentionally disclose genetic information in contravention of the statute simply cannot influence our decision in this case, where no such disclosure is alleged to have happened, or even to be likely to happen. We further note that misuse of information necessary to the functions of government has not traditionally supported either expunging that information wholesale from government records, judicial invalidation of the statutes authorizing its collection, or imposing the warrant requirement on those collecting the data.

¶ 30. The searches the statute authorizes are subject to clear administrative guidelines and are performed uniformly on all felons subject to them. Accordingly, they do not raise the specter of unbridled officer discretion to harass particular individuals, against which Article 11 is a bulwark of protection. See Welch, 160 Vt. at 91, 624 A.2d at 1116 (Johnson, J., dissenting) (“In short, this Court has permitted warrantless regulatory searches in circumstances evincing special needs, but only when explicit guidelines ensure that the searches are not a pretext for singling out individuals.”); Record, 150 Vt. at 86, 548 A.2d at 424 (upholding random roadside sobriety checks because “written police guidelines prevented arbitrary police conduct, and the scope of the roadblock was narrowly drawn”); cf. Amerson, 483 F.3d at 82 (“[W]hat makes the government’s need to create a DNA database ‘special,’ despite its relationship to law enforcement, is (as a matter of first principles) its incompatibility with the normal requirements of a warrant and probable cause . . . .”).

¶ 31. In light of the statutory limits on the analysis of genetic information, the post-sampling intrusion on protected privacy interests is closely akin to that occasioned by the retention and searching of fingerprint records. As we noted in R.H., “[l]ike fingerprinting, saliva sampling involves no intrusion into a person’s *45life or thoughts; it [cannot] be used repeatedly to harass; it is not subject to abuses like the improper line-up or the third degree.” 171 Vt. at 238, 762 A.2d at 1247. The data retained in the database serve only to prove identity, like a fingerprint. Accord Goord, 430 F.3d at 671.

¶32. The information in the database, then, is not information defendants can reasonably expect to keep private as convicted felons. Cf. Sczubelek, 402 F.3d at 185 (“Individuals on supervised release cannot reasonably expect to keep information bearing on their physical identity from government records. Thus, for criminal offenders the privacy interests implicated by the collection of DNA are minimal.”); Jones, 962 F.2d at 306 (“[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it”).

¶ 33. Further, of the many methods of determining identity, DNA is more accurate and far less susceptible to the various methods of deception employed by wrongdoers:

It is a well recognized aspect of criminal conduct that the perpetrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while committing a crime may be supplemented or replaced by changed names, and even changed physical features. Traditional methods of identification by photographs, historical records, and fingerprints often prove inadequate. The DNA, however, is claimed to be unique to each individual and cannot, within current scientific knowledge, be altered. . . . Even a suspect with altered physical features cannot escape the match that his DNA might make with a sample contained in a DNA bank, or left at the scene of a crime within samples of blood, skin, semen or hair follicles. The governmental justification for this form of identification, therefore, relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods.

Jones, 962 F.2d at 307. This accuracy, and DNA’s concomitant ability to conclusively exonerate the innocent, weigh heavily in favor of the statute.

*46¶ 34. Defendants argue that nonviolent felons like them may not be subjected to sampling under Article 11 even if sampling of violent felons would be permissible. The Chittenden District Court agreed, holding that “there is a question of ‘fit’ ” between the sampling requirements in the new statute and the crimes these defendants committed, which the court noted would seldom involve DNA evidence. A similar argument was advanced and rejected in Jones. Id. at 308. There, several inmates convicted of nonviolent offenses argued, with supporting statistics, that the vast majority of cases involving DNA evidence were murders or rapes, and that there was only a small statistical likelihood that nonviolent offenders would later commit those crimes. See id. (noting that 97% of cases where DNA evidence was used were murders or rapes, and that less than 1% of nonviolent offenders are later arrested on murder or rape charges). The Court of Appeals for the Fourth Circuit agreed with the inmates that the state’s “interest in DNA testing is significantly more compelling with regard to those felons convicted of violent crimes than those not,” but concluded that “[t]he effectiveness of the [state’s] plan, in terms of percentage, need not be high where the objective is significant and the privacy intrusion limited.” Id. (citing Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 454-55 (1990) (upholding DUI roadblock despite arrest rate of 1.5%)); Bell v. Wolfish, 441 U.S. 520, 559 (1979) (upholding searches of pretrial detainees; only single instance where inmate caught with contraband)). We agree with that analysis, and note also that the statute’s purposes go beyond the mere identification of perpetrators and extend to exoneration of the innocent and identification of missing persons, both of which purposes are served regardless of the violence of the underlying offense.

¶ 35. In summary, we conclude that the DNA sampling statute does not offend Article 11 as applied to nonviolent felons, whether they are incarcerated or not. The statute serves special needs beyond normal law enforcement and advances important state interests that outweigh the minimal intrusions upon protected interests.

The judgment of the Chittenden District Court is reversed, and the judgment of the Addison District Court is affirmed.