People v. Redmond4/18/2005
8), because statutory provision for minimum sentence is mandatory and must be obeyed); People v. Jameson, 162 Ill. 2d 282, 287 (1994) (referring to section 5-5-3(c)(8) as a "mandatory sentencing provision"); People v. Levin, 157 Ill. 2d 138, 156 (1993) (in case of Class X offender, the sentencing court is "required by statute to impose a sentence from an elevated sentencing range").
Since section 5-5-3(c)(8) operates as a mandate on the trial court to sentence a qualified defendant as a Class X offender, defendant was not eligible for TASC probation. The trial court was without discretion to sentence defendant to anything other than a Class X sentence. Because defendant was required to be sentenced as a Class X offender, he is not eligible to apply for TASC. The trial court did not err in sentencing defendant as a Class X offender to nine years' imprisonment.
Finally, defendant argues that section 5-4-3 of the Unified Code of Corrections, which allows for the extraction and storage of the deoxyribonucleic acid (DNA) of convicted felons, violates his fourth amendment right to be free from unreasonable searches and seizures. The State maintains that the statute is constitutional and that a criminal defendant does not have privacy rights in his identity that would require individualized suspicion before blood can be drawn.
Section 5-4-3 mandates DNA sampling from any person convicted or found guilty "of any offense classified as a felony under Illinois law." 730 ILCS 5/5-4-3(a) (West 2002). Such persons "shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this section." 730 ILCS 5/5-4-3(a) (West 2002). The purpose of section 5-4-3 is to establish a data bank of genetic identity of recidivist criminal offenders. People v. Garvin, 349 Ill. App. 3d 845, 853 (2004), appeal allowed, No. 99031 (November 24, 2004); see also 730 ILCS 5/5-4-3 (West 2002). We review de novo whether this section violates fourth amendment concerns as a question of law. People v. Hall, 352 Ill. App. 3d 537, 545 (2004).
Several panels of the appellate court have considered the constitutionality of DNA extraction under section 5-4-3. See People v. Garvin, 349 Ill. App. 3d 845 (2004); People v. Hall, 352 Ill. App. 3d 537 (2004); People v. Ramos, 353 Ill. App. 3d 133 (2004); People v. Peppers, 352 Ill. App. 3d 1002 (2004); People v. Edwards, 353 Ill. App. 3d 475 (2004); People v. Foster, 354 Ill. App. 3d 564 (2004). In Garvin, the court noted that all 50 states and the District of Columbia have enacted genetic marker testing statutes, and all of the challenged statutes have been held to be constitutional. See Garvin, 349 Ill. App. 3d at 853-54.
The fourth amendment protects all people against unreasonable searches and seizures. U.S. Const., amend. IV. Analysis of a biological sample has long been considered a search within the meaning of the fourth amendment. Skinner v. Ry. Labor Executives Ass'n., 489 U.S. 602, 616, 103 L.Ed. 2d 639, 659, 109 S.Ct. 1402, 1412-13 (1989); see also Schmerber v. California, 384 U.S. 757, 767-68, 16 L.Ed. 2d 908, 917-18, 86 S.Ct. 1826, 1834 (1966). "However, it must be remembered that the fourth amendment, as applied to the states by the fourteenth amendment, does not proscribe all searches and seizures but only those that are unreasonable, thereby upholding at the same time fair leeway for the enforcement of law and the protection of the community at large." Hall, 352 Ill. App. 3d at 545.
In considering the issue of DNA testing, courts have taken two approaches in their fourth amendment analysis, a balan
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