¶1concurring in part and dissenting in part:
¶2I concur with the majority’s decision except for its conclusion that section 5 — 4—3 of the Code (730 ILCS 5/5 — 4—3 (West 2002)), as amended by Public Act 92 — 829, effective August 22, 2002, is constitutional. I continue to believe that the compulsory collection and storage of DNA evidence from convicted felons is unconstitutional because it violates the offender’s fourth amendment right to be free from unreasonable searches and seizures. See People v. Peppers, 352 Ill. App. 3d 1002, 1013-14, 817 N.E.2d 1152 (2004) (Hall, J., dissenting); People v. Zhani, No. 1-03-2326 (2004) (unpublished order under Supreme Court Rule 23) (Hall, J., concurring in part and dissenting in part).
¶3I believe that requiring DNA samples from convicted felons cannot be justified under either the special needs exception or the balancing test. In regard to the special needs exception, the mandatory collection of DNA evidence from convicted felons cannot be considered a special need since it does not serve any need above and beyond law enforcement purposes.
¶4Under the balancing test, the court is charged with balancing the privacy interests of the prisoner in remaining free of bodily invasion against the State’s interest in carrying out the search. However, in light of the State’s predominate law enforcement interests compared to the subject prisoner’s greatly reduced privacy rights, one would be hard-pressed to find a case in which the balance would not be struck in favor of the government. The balancing test favors the government to such an extent that it cannot fairly determine if the compulsory collection of DNA evidence from a prisoner, based solely on the prisoner’s status as a convicted felon, is a permissible exception to the fourth amendment’s requirements of probable cause and individualized suspicion. A balancing test that always favors one side is not actually a test at all. Accordingly, I respectfully concur in part and dissent in part.