CORTNEY L. BLOMSTROM, Pеtitioner, v. The Honorable GREGORY J. TRIPP, in his official capacity as a Spokane County District Court Judge, and the SPOKANE COUNTY DISTRICT COURT, Respondents. BROOKE M. BUTTON, Petitioner, v. The Honorable GREGORY J. TRIPP, in his official capacity as a Spokane County District Court Judge, and the SPOKANE COUNTY DISTRICT COURT, Respondents. CHRISTOPHER V. COOPER, Petitioner, v. The Honorable GREGORY J. TRIPP, in his official capacity as a Spokane County District Court Judge, and the SPOKANE COUNTY DISTRICT COURT, Respondents.
No. 91642-0
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
OCT 05 2017
En Banc
We reverse the decision of the superior court. We hold that Cortney Blomstrom, Brooke Button, and Christopher Cooper are entitled to statutory writs of review because they lack an adequate remedy at law to challenge their pretrial release conditions and because their urinalysis testing requirements contravene
FACTS AND PROCEDURAL HISTORY
Each of the three petitioners was arrested for driving under the influence (DUI). Two petitioners had high blood alcohol
A. Blomstrom
Cortney Blomstrom was arrested for DUI on February 1, 2015.1 Clerk‘s Papers (CP) at 39. A breath test showed a BAC2 of 0.191 and 0.184. Verbatim Report of
Proceedings (RP) Feb. 2, 2015 (RP Blomstrom) at 1. Blomstrom had no criminal record. Id. at 2.
At Blomstrom‘s first appearance, the State requested four times monthly random urinalysis testing as a condition of release. Id. The State pointed to a series of studies by the United States Department of Transportation‘s National Highway Traffic Safety Administration (NHTSA), which found that an individual with a BAC over 0.15 is “fa[r] more likely to be involved in a fatal car crash as well as more likely to reoffend.”3
The court imposed twice monthly random urinalysis testing, concluding that
[b]ecause of the high BAC, because of the facts of this case, because of the argument of counsel I do find that there is a likelihood that you would reoffend and . .. possibly believe consuming alcohol would be a risk to public safety as well.
Id. at 3. The court further ordered Blomstrom to abstain from possessing or using any alcohol or unprescribed drugs. Id.
B. Cooper
Christopher Cooper was arrested for DUI on February 7, 2015. CP at 26. The arresting officer noted an open bottle of whiskey on the floorboard, about a quarter empty; Cooper allegedly admitted “that he had just come from a bar.” RP Feb. 9, 2015 (RP Cooper) at 2. Cooper‘s breath test registered a BAC of 0.175 and 0.174. Id. at 1. Cooper had never been convicted of an alcohol- or drug-related offense and had no prior DUI arrests. CP at 26-28.
At Cooper‘s first appearance, the State requested four times monthly random urinalysis testing as a condition of release. RP Cooper at 1. Again, the State relied on the NHTSA studies “indicating that above a .15 [BAC] an individual is far more likely to both reoffend and be involved in a fatal accident.” Id. at 2. The State also suggested that Cooper‘s “pretty lengthy driving record . . . would warrant testing.” Id. at 3.
Cooper‘s counsel objected, arguing that “there‘s no indication he wouldn‘t follow the Court‘s orders not to use, possess, or consume [alcohol] or that he would be a danger to society or reoffend . . . .” Id. Counsel further objected to the testing requirements “on State v. Rose4 grounds.” Id.
The court imposed four times monthly urinalysis testing based on Cooper‘s “record[,] . . . the studies which [the prosecutor] has indicated, [and] the high blow which is more than two times the legal limit.” Id. at 5-6. In light of these findings, the court concluded that “we have to put something in place that will reduce the danger to the community . . . under [Criminal Rules for Courts of Limited Jurisdiction (CrRLJ)] 3.2(d)(10). So, that‘s what I‘m going to do in this case.” Id. The court further ordered Cooper to abstain from all use or possession of alcohol or unprescribed drugs. Id. at
5-6. The court noted that Cooper could ask the court to reconsider the conditions imposed “at any time.” Id. at 6.
C. Button
Brooke Button was arrested for driving under the influence of marijuana. RP Mar. 2, 2015 (RP Button) at 3. Button was arrested over the weekend, at which point probable cause was determined and initial pretrial release conditions were purportedly imposed.5 Id. at 1. Button‘s first appearance in court was on the following Monday. Id.
Button‘s criminal record largely consisted of minor theft and driving infractions, as well as a 2009 conviction for DUI in Idaho.6 CP at 92-94; RP Button at 3. There was no evidence concerning the nature of the substance involved in Button‘s 2009 DUI conviction. RP Button at 5. Button also had three previous charges for failing to install an ignition interlock device (IID)7 in 2011. CP at 92-94.
At Button‘s first appearance, the State requested four times monthly random urinalysis testing. RP Button at 2. The State emphasized Button‘s prior DUI conviction, and
allegation.” Id. at 4. Counsel requested that the court not impose the testing requirement. Id.
The court agreed with the State that four times monthly urinalysis testing was appropriate:
I am going to order testing based upon the prior [DUI] . . . and the recency in time and all the other facts that I find to be the facts for the purpose of this hearing as stated by [the prosecutor] and so, you‘re to contact Absolute Drug Testing within 24 hours for random four times a mont[h] testing. This is based upon [CrRLJ] 3.2 as well as RCW 10.21.030 which allows for that testing and . . . frankly the . . . likelihood of her reoffending. The fact that we‘ve ha[d] three arrests for the ignition interlock violation also is an indication to the Court [that] there should be some . . . testing.
Id. at 5-6. However, the court concluded that an IID was unnecessary “because it‘s not clear to me that both [the current and prior offense] involved alcohol.” Id. at 6. The court removed the IID requirement from Button‘s pretrial release conditions. Id.
D. Applications for Writ of Review
The petitioners subsequently challenged their pretrial release conditions by applications for a statutory writ to the superior court.8 CP at 1-2, 32-33, 60-61. The petitioners also filed largely identical supporting memoranda. Id. at 3-21, 40-56, 62-84. These memoranda challenged the petitioners’ urinalysis testing conditions as violations of
The superiоr court rejected the applications for a writ in identical orders. CP at 98, 102, 106. The court declined to comment on the legality or constitutionality of the
district court‘s release conditions, concluding instead that a statutory writ was inappropriate because another, adequate remedy was available: “[T]he challenge can only be undertaken by a [Rules for Appeal of Decisions from Courts of Limited Jurisdiction (RALJ)] appeal if [the petitioners] are convicted or plead guilty to the charges.” Id. at 101.
The petitioners jointly filed a motion for discretionary review of the superior court‘s decision to this court. Mot. for Discr. Review at 1. The petitioners claimed that the superior court erred in two respects: (1) in finding that the petitioners possessed an adequate remedy in the form of a RALJ appeal and (2) in failing to find that the pretrial release conditions were unconstitutional under state and federal law. Id. at 1-2. The petitioners did not challenge the district court‘s compliance with
STANDARD OF REVIEW
We review de novo a superior court‘s decision whether to grant a statutory writ of review. City of Seattle v. Holifield, 170 Wn.2d 230, 240, 240 P.3d 1162 (2010). Constitutional issues are questions of law that we also review de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012).
ANALYSIS
The parties dispute whether the petitioners are entitled to statutory writs of review. A writ shall issue if (1) “an inferior tribunal . . . has exceeded [its] jurisdiction”
or otherwise acted “illegally” and (2) “there is no appeal, nor. . . any plain, speedy and adequate remedy at law.”
(1) has committed an obvious error that would render further proceedings useless; (2) has committed probable error and the decision substantially alters the status quo or substantially limits the freedom of a party to act; or (3) has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction by an appellate court.
Holifield, 170 Wn.2d at 244-45.
Whether
Here, the petitioners assert that they lack an adequate remedy at law and that the district court committed probable error by requiring urinalysis testing and IID installation, which they claim violated
Before addressing the substance of the petitioners’ claims, we must first dispose of two threshold concerns: first, whether any party has standing to challenge searches by means of IIDs, as opposed to searches by means of urinalysis testing, and second, whether the petitioners’ constitutional challenges were adequately preserved by objection in the district court.
I. The Petitioners Lack Standing To Challenge IID Requirements
Generally, “[a] person has standing to raise constitutional questions when his interest is a ‘personal stake in the outcome of the controversy.‘” Marchioro v. Chaney, 90 Wn.2d 298, 303, 582 P.2d 487 (1978) (internal quotation marks omitted) (quoting DeFunis v. Odegaard, 82 Wn.2d 11, 24, 507 P.2d 1169 (1973)). That is, a person challenging a government action must be adversely affected by that action. See Citizens Council Against Crime v. Bjork, 84 Wn.2d 891, 893, 529 P.2d 1072 (1975). Thus, in order to challenge an IID search as unconstitutional, at least one of the petitioners in this case must be personally affected by such a search.
The State asserts that “none of the [petitioners] were subject to an ignition interlock requirement.”9 State Br. at 9. This is not strictly accurate. One petitioner, Button, was briefly subject to an IID requirement. This order applied between the time of her arrest over the weekend and the time of her first appearance on Monday; at Button‘s first appearance, the trial court removed the IID. See RP Button at 2 (failing to identify who imposed the initial order); see also id. at 6 (“I‘m not going to order the ignition interlock device at this time . . . .“). While Button was
First, when Button filed her application for a writ of review, no IID requirement existed.10 See CP at 61. Judge Tripp had already withdrawn the condition at Button‘s first appearance. RP Button at 6. Button thus purports to challenge an order already revoked before her complaint was lodged.11
Second, Button‘s application for a writ of review did not mention an IID requirement. CP at 61. We note that Button‘s memorandum in support of the writ
application ambiguously challenged “the release conditions imposed upon the defendant to subject himself [sic] to an ignition interlock device and/or alcohol monitoring.” Id. at 62. However, this memorandum itself seemed to be premised on the impression that an IID requirement was ongoing.12 To the extent that Button‘s memorandum challenged an IID requirement, it incorrectly purported to challenge an active order; Button did not appear to challenge an order already revoked.
Third, while we can infer the existence of Button‘s order imposing an IID from the fact that the IID requirement was removed, no order imposing an IID is in the record—making it difficult to review any associated reasoning or to conclude that the petitioners were even challenging that order. In this context, it is not clear how a reviewing court could “‘provide effective relief.‘” In re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004) (quoting Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984)). The claim is thus moot.
The petitioners ask that we nonetheless review the case under a mootness exception: in their response to the amicus State of Washington, the petitioners assert that Button‘s сlaim is “‘not rendered moot and [is] nonetheless justiciable at this point because it is a recurring issue of public importance.‘” Pet‘r‘s Ans. to Br. of Amicus Curiae State at 15 (quoting CP at 64). The petitioners explain that “‘[a]ll of the district
court judges are issuing these orders in many if not most DUI cases.‘” Id. (quoting CP at 63-64). The petitioners offer no authority for either assertion.
While we occasionally consider issues that become moot during the pendency of a case, “the moot cases which this court has reviewed in the past have been cases which became moot only after a hearing on the merits of the claim.” Orwick, 103 Wn.2d at 253 (finding that the appellants’ claim was moot and emphasizing that no court had yet held a hearing on the merits of the claim). Because Button‘s claim was moot before any objection was filed, let alone a hearing on her complaint, her claim appears to fall outside the scope of our mootness exceptions.
In sum, although Button was briefly subject to an IID requirement, this requirement was revoked by the time the application for a writ was filed, was not raised in her application for a writ of review, and was not the subject of any order in the record. To the extent that an IID was ordered, it was a mistake withdrawn at Button‘s first hearing. Because the parties agree that the other petitioners were not subject to IID requirements, the petitioners collectively do not have standing to challenge the use of IIDs as pretrial release conditions. We therefore confine
II. The Petitioners Preserved Their Constitutional Challenge to Urinalysis Testing
The petitioners claim that urinalysis testing violates their right to privacy under
“[T]he purpose of requiring an objection in general is to apprise the trial court of the claimed error at a time when the court has an opportunity to correct the error.” State v. Moen, 129 Wn.2d 535, 547, 919 P.2d 69 (1996). A party‘s objection may preserve an issue if the “ground for objection is readily apparent from the circumstances.” State v. Black, 109 Wn.2d 336, 340, 745 P.2d 12 (1987) (finding that counsel‘s general objection to an expert‘s testimony preserved the issue of evidentiary reliability for appeal because the basis for the objection was evident in context); see also State v. Powell, 166 Wn.2d 73, 85, 90, 206 P.3d 321 (2009) (plurality opinion) (five justices agreeing that defendant‘s objection to the mention of drugs before the jury raised, in context, a challenge to the evidence‘s prejudicial value). In a joint appeal, an error preserved by one party is preserved for all. See
Here, Cooper stated the basis for his objection by citing to Rose, 146 Wn. App. 439: “we object on State v. Rose grounds, your Honor.” RP Cooper at 3. The petitioners urge that, in context, this reference was sufficient to invoke the petitioners’ constitutional objection.13 We have not previously weighed the import of citing a case
as the basis for an objection. Because the implications of Cooper‘s objection depend on the scope of the Court of Appeals’ holding in Rose, we first turn to that case.
In Rose, the Court of Appeals evaluated three separate defendants’ urinalysis testing requirement, each imposed as a condition of pretrial release. 146 Wn. App. at 442. The three defendants—Rose, Wilson, and Wentz—had been charged with various weapon- and drug-possession crimes. Id. at 442-44. The court found that, for Rose and Wilson, pretrial urinalysis testing violated
refers to the 14 other petitioners who filed applications for statutory
Cooper invoked this decision and, by extension, its holdings. RP Cooper at 3. And immediately before invoking Rose, Cooper‘s counsel argued that “there‘s no indication [that Cooper] wouldn‘t follow the Court‘s orders not to use, possess, or consume [alcohol] or that he would be a danger to society or reoffend.” Id. These factual challenges mirror those in Rose, where the trial court lacked evidence of either dangerousness or likely nonappearance. Counsel then concluded his objection to the testing condition: “[W]e object on State v. Rose grounds, your Honor.” Id. The trial court did not respond, proceeding to the State‘s rebuttal. Id.
Under the specific circumstances of this case, and particularly in a court of limited jurisdiction with its concomitant time constraints, we conclude that Cooper‘s reference to Rose necessarily invoked that decision‘s constitutional analysis. As a result, Cooper adequately preserved his constitutional claim and the petitioners are permitted to collectively raise the issue.
Having resolved the two threshold issues, we now turn to the core question presented: whether the petitioners are entitled to statutory writs of review.
III. The Petitioners Are Entitled to Statutory Writs of Review
To be entitled to statutory writs of review, the petitioners must show that (1) the trial judge committed probable error and (2) there is no other adequate remedy at law.
A. The Petitioners Lack an Adequate Remedy at Law
an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.
1. A Direct Appeal from a Court of Limited Jurisdiction Is Not an Adequate Remedy at Law To Challenge Pretrial Release Conditions
Initially, the parties disputed whether directly appealing from a court of limited jurisdiction would be sufficient to challenge pretrial release conditions. See RP Mar. 20, 2015 at 20 (the State arguing that “direct review or discretionary review” would be the proper paths for petitioners’ challenge). By this method, the petitioners would await a final decision from the district court before appealing to the superior court.
remedy. CP at 101 (“[T]he challenge can only be undertaken by a RALJ appeal if [the petitioners] are convicted or plead guilty to the charges.“). We disagree.
The superior court mistakenly relied on Commanda, 143 Wn.2d 651, as the “leading case interpreting the use of extraordinary writs.” CP at 99. In
The State now concedes that RALJ review is an inadequate remedy: “By the time a defendant is tried and convicted, pleads guilty, or is found not guilty or the charge is otherwise dismissed, there would no longer be any value to enforcing any rights concerning pretrial conditions; those conditions would be moot.” State Br. at 6. We agree that a RALJ appeal is an inadequate remedy to review pretrial release conditions. Notably, a defendant who prevails in the district court would be unable to pursue postconviction relief, effectively barring any challenge to that person‘s pretrial
requirements; the constitutional violation would then be unreviewable. Thus, some other form of review must provide the adequate remedy at law.
2. A Motion To Amend in the District Court Is Not an Adequate Remedy at Law To Challenge Pretrial Release Conditions
The parties dispute whether a motion to amend pretrial release conditions, brought before the district court, constitutes an adequate remedy at law. The State argues that a motion to amend provides an adequate remedy at law because it allows defendants to bring their concerns to the trial court‘s attention. Id. at 7 (“All of the defendants had an opportunity to raise this issue in the trial court by simply filing a motion [to amend].“). The petitioners respond that (1) a motion to amend would be “futile” because “the district court consistently rejects the petitioners’ routine objections to specific pretrial release conditions” and (2) the statute‘s language and structure requires that an adequate remedy be “available outside the inferior tribunal,” not provided by the same court. Reply Br. at 3-4. The petitioners’ statutory argument has merit.
A district court can amend its order for pretrial conditions at any time “on change of circumstances, new information or showing of good cause . . .”
court‘s reviewing itself, either through amendment or other form of reconsideration. Therefore, such a motion cannot be considered an adequate remedy at law under
Having concluded that there is no adequate remedy at law available to review the challenged pretrial release conditions, we proceed to the substance of the petitioners’ claims and conclude that the district court committed probable error.
B. The Trial Court Committed Probable Error Because Petitioners’ Urinalysis Pretrial Release Conditions Are Unconstitutional Searches
The heart of this appeal is whether the petitioners’ urinalysis testing requirements violate either
1. Article I, Section 7 Provides Greater Protection to Pretrial Defendants’ Privacy Rights in Their Bodily Functions
Generally speaking, “[i]t is ... axiomatic that
affairs.” State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002); McCready, 123 Wn.2d at 267. But this enhanced protection depends on the context in question. See State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990) (considering anew the relative protections of
We have established a “nonexclusive” set of six factors to determine “whether, in a given situation, the Washington State Constitution should be considered as extending broader rights to its citizens than the United States Constitution.” State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808 (1986). These factors are;
(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.
Id. The first, second, third, and fifth factors “are uniform in any analysis” of
a. Gunwall Factor Four: Preexisting State Law
“Previously established bodies of state law, including statutory law, may . . . bear on the granting of distinctive state constitutional rights.” Gunwall, 106 Wn.2d at 61. Here, the petitioners were subject to urinalysis testing as a condition of pretrial release, so we look to preexisting state law concerning both (a) bodily functions and (b) pretrial release.
The parties agree that preexisting state law was not particularly concerned with the rights of pretrial detainees. See Blomstrom Br. at 28 (“Cursory research yielded nothing specific to pretrial release conditions in the late nineteenth century . . . .“); State Br. at 21 (“state concerns over the hardship of pretrial detention did not differ from those
b. Gunwall Factor Six: Matters of Particular State or Local Concern
Pretrial release conditions are historically the province of the judicial branch, and rules concerning their deployment have been “developed and maintained by each county‘s judiciary.”19 Westerman v. Cary, 125 Wn.2d 277, 291, 892 P.2d 1067 (1994). Thus, the appropriateness of pretrial release conditions is a matter of particular state and local concern. It follows that
In sum, the combined Gunwall factors support a separate analysis of
2. Petitioners’ Urinalysis Testing Requirements Violate Article I, Section 7
a. Urinalysis Disturbs the Petitioners’ Private Affairs
Here, the State appears to concede the first step of our analysis—that urinalysis testing of the petitioners disturbs their private affairs. See State Br. at 25 (describing urinalysis as an “intrusion” that should nonetheless be outweighed by “the governmental interest in protecting the public“). However, the State seeks to minimize the import of suspicionless urinalysis testing by concluding that the testing itself is a “limited incursion.” Id. at 27. This characterization is surprising. On the contrary,
[i]t is difficult to imagine an affair more private than the passing of urine. . . . “Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.”
Robinson v. City of Seattle, 102 Wn. App. 795, 818, 10 P.3d 452 (2000) (internal quotation marks omitted) (quoting Skinner v. Ry. Labor Execs.’ Ass‘n, 489 U.S. 602, 617, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989)). In the context of a state-ordered search, urine testing “is ‘particularly destructive of privacy and offensive to personal dignity.‘” York, 163 Wn.2d at 327 (Madsen, J., concurring) (quoting Nat‘l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 680, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989) (Scalia, J., dissenting)); cf. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995) (finding urine testing of student athletes to be a minimal intrusion because students routinely undress and shower in communal locker rooms).21 In comparison, we have deemed roadblocks to be “highly intrusive,” City of Seattle v. Mesiani, 110 Wn.2d 454, 458, 755 P.2d 775 (1988), and pat-down searches to be “highly intensive,” Jacobsen v. City of Seattle, 98 Wn.2d 668, 674, 658 P.2d 653 (1983). Urinalysis is at least as invasive as a roadblock or a pat-down search.22 We thus conclude that court-ordered urinalysis testing constitutes an acute privacy invasion by the State.
b. The Petitioners’ Urinalysis Requirements Lack Authority of Law
With respect to the second steр of our analysis—the relevant authority of law—the question is less straightforward. “Authority of law” may be satisfied by a valid warrant, a recognized exception to the warrant requirement,23 a constitutional statute, or a court rule.24 See Gunwall, 106 Wn.2d at 68-69 (“[T]he ‘authority of law’ required by
i. No Statute or Court Rule Provides the Necessary Authority of Law
No party suggests that a constitutional statute or court rule provides authority of law sufficient under
First,
Second,
And third,
Because these statutes and court rules do not allow us to affirm the trial court, we proceed to the other authority of law proposed by the State—a new exception to the warrant requirement.
ii. We Decline To Adopt the Federal Special Needs Exception
As a preliminary matter, the parties seem to agree that petitioners’ urinalysis testing conditions constitute warrantless searches not subject to a recognized exception to the warrant requirement. See State Br. at 23-24 (“[B]ecause the testing imposed on the defendants was not for law enforcement purposes, it does not fall within any of [the] commonly analyzed exceptions.“); see also Blomstrom Br. at 31. The parties part ways on whether this court should apply a state equivalent to the federal “special needs” exception to the warrant requirement. State Br. at 24 (“[T]he inquiry here must be akin to the special needs exception under Federal law.“).
The federal special needs exception permits an otherwise unlawful search “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.‘” Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) (Blackmun, J., concurring in judgment)). The government must show (1) a purpose outside of general law enforcement, (2) that this purpose makes obtaining a warrant or probable cause impracticable, and (3) that this purpose outweighs the privacy interest infringed. Skinner, 489 U.S. at 619.
This court has not explicitly recognized a special needs exception under
For instance, in State v. Meacham, 93 Wn.2d 735, 739, 612 P.2d 795 (1980), we upheld mandatory blood tests of putative fathers ordered “after full adversarial hearings.” In In re Juveniles A, B, C, D, E, we upheld mandatory HIV (human immunodeficiency virus) testing of convicted sexual offenders, engaging solely in a federal analysis. 121 Wn.2d 80, 90, 100, 847 P.2d 455 (1993). In State v. Olivas, we upheld blood testing of convicted felons without individualized suspicion. 122 Wn.2d 73, 83, 856 P.2d 1076 (1993). And in Surge, we held that DNA sampling of convicted felons did not violate
A plurality of this court emphasized these cases’ narrow application in York, 163 Wn.2d at 316 (holding that random drug testing of student athletes violated
Most recently, in State v. Olsen, 189 Wn.2d 118, 399 P.3d 1141 (2017), this court upheld suspicionless urinalysis testing of misdemeanant probationers. In Olsen, the State similarly urged this court to adopt the federal special needs exception. We again declined, instead adopting a balancing test: “narrowly tailored” searches to further a “compelling” state interest are permissible “because probationers have a reduced expectation of privacy.” Id. at 126 (noting that, with such reduced privacy expectations, “the State does not need a warrant, an applicable warrant exception, or even probable cause to search a probationer“). In adopting this new approach, we emphasized “probationers’ significantly reduced expectation of privacy and the unique rehabilitative goals of the probation system.” Id. at 128.
In contrast to these prior holdings, this case concerns the prophylactic testing оf defendants charged but not yet convicted. The State now suggests that these persons—charged but presumed innocent—have a reduced privacy interest as well. Answer of Resp‘ts to Brs. of Amici Curiae at 5. While the State offers no authority for this assertion, it references the Washington State Association of Prosecuting Attorneys (WAPA) amicus brief generally. Id. The WAPA amicus brief, in turn, relies on Puapuaga, 164 Wn.2d 515, for its assertion that the privacy expectations of a pretrial releasee are the same as those of “an individual who is detained in jail pending trial.” WAPA Amicus Br. at 5. This misstates our holding in Puapuaga.
In Puapuaga, 164 Wn.2d at 517, the defendant challenged an inventory search conducted while he was detained and in state custody. We noted that “an inmate‘s expectation of privacy is necessarily lowered while in custody.” Id. at 523 (emphasis added). Physical custody by the State involves unavoidable administrative burdens that, of necessity, work some invasion of privacy. We have not yet commented on the privacy expectations of a defendant released on her own recognizance.
Nor have other courts clearly defined the privacy status of pretrial releasees, in contrast with pretrial detainees—though most agree that persons not yet convicted have substantially greater privacy rights than probationers.26 Indeed, the privacy interests
[i]f you are arrested, you expect that officers will disarm you, booking personnel will extract identifying information, and jail personnel will inventory your belongings—because these intrusions are necessary for the system to work. But it is that necessity that justifies the intrusions, not your subjective expectations.
Sandra G. Mayson, Bail Reform and Restraint for Dangerousness: Are Defendants a Special Case?, U. OF PA. L. SCH., PUB. L. RES. PAPER NO. 16-30, at 28-29 (last revised May 18, 2017) (Yale L.J., forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2826600 [https://perma.cc/HRT6-2RAD]. Thus, even taking up the State‘s belated and unsupported argument concerning the petitioners’ privacy interests, we disagree. The petitioners suffered no diminution of their privacy rights that might justify importing the federal special needs test into our
In sum, we decline to import the federal special needs test in this context. The petitioners suffered no diminution in their privacy sufficient to justify highly invasive urinalysis testing under
IV. The Petitioners’ Motion To Strike Is Denied
By separate motion, the petitioners ask this court to exclude from consideration the deсlaration of Paul Abbott and to strike references made to it “in the State‘s amicus curiae brief.” We deny the motion.
The declaration at issue was attached to the State‘s motion for leave to file an amicus brief. It was cited solely in the “Applicant‘s Interest” section and appears to have been offered to help this court determine only whether the State was justified in filing an amicus brief. It was not cited in the State‘s amicus brief, as the motion to strike claims.
The petitioners argue that we should strike the declaration and the associated (nonexistent) references in the State‘s amicus brief “because the facts it seeks to bring to [this court‘s] attention do not help this court resolve the issues before [it].” In re Adoption of B.T., 150 Wn.2d 409, 414, 78 P.3d 634 (2003) (rejecting new evidence that does “not help us resolve the issues before us“).
The petitioners are mistaken. In bringing a motion to file an amicus brief, the State was responsible for explaining its interest in the issue on which it hoped to offer guidance. Here, the State specifically sought leave to file an amicus brief concerning IIDs and whether this court should reach the issue of their constitutionality. The fact that the State frequently imposes IID requirements, therefore, logically supports the State‘s interest in any decision concerning their cоnstitutionality. For this limited purpose, the Abbot Declaration did, in fact, “help [this court] resolve the issue[] before [it]“—whether the State had an adequate interest in filing an amicus concerning IIDs. See id.
Because the declaration was appropriately included for the limited purpose of explaining the State‘s interest in filing an amicus brief, we deny the motion to strike.
CONCLUSION
The superior court erred in failing to grant the petitioners’ applications for statutory writs. The petitioners lack an adequate remedy at law to challenge pretrial release conditions. And the petitioners’ urinalysis testing conditions violated
WE CONCUR.
Blomstrom, et al. v. Hon. Tripp, et al.
No. 91642-0
GONZALEZ, J. (dissenting in part)—Cortney Blomstrom, Brooke Button, and Christopher Cooper were each arrested for driving under the influence (DUI). After finding probable cause for DUI and weighing the evidence in each case, the court imposed random urinalysis as a condition of release pursuant to
“No person shall be disturbed in his [or her] private affairs . . . without authority of law.”
bodily functions; and urinalysis intrudes on this privacy interest. State v. Olsen, 189 Wn.2d 118, 124, 399 P.3d 1141 (2017). The only time that the State may intrude upon private affairs is when the State has “‘authority of law.‘” State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005). In Olsen, we held that courts have “‘authority of law‘” to impose random urinalysis as a condition of probation, because probationers have a diminished expectation of privacy. 189 Wn.2d at 126. Because these conditions intruded in private affairs, we limited that “authority of law” to when the conditions advance the State‘s compelling interests and are narrowly tailored. Id. Similarly, defendants arrested on probable cause for a dangerous offense have a diminished expectation of privacy and courts have “authority of law” under
Bail and other pretrial release programs seek to alleviate those harsh consequences of pretrial detention. While the primary function of bail is to ensure an accused‘s appearance at court, courts are allowed to pursue other compelling interests through regulation of pretrial release. United States v. Salerno, 481 U.S. 739, 753, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987); In re Habeas Corpus of York, 9 Cal. 4th 1133, 1145, 892 P.2d 804, 40 Cal. Rptr. 2d 308 (1995). Public safety is one such compelling interest.
But what qualifies as permissible governmental considerations is not without limitation. This is because pretrial releasees have not been convicted beyond a reasonable doubt to have committed the offense for which they are charged. This means pretrial conditions cannot be punitive in nature. See Harris, 171 Wn.2d at 468-69. At the pretrial stage, the government‘s interests in detaining an accused are limited to ensuring the accused‘s appearance at trial, safeguarding the administration of justice, and protecting the public from harm. See Schall v. Martin, 467 U.S. 253, 263, 281, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984) (upholding pretrial detention based on “‘serious risk‘” that the accused might commit a crime if released). A logical corollary to this rule is that the accused‘s pretrial liberty and privacy interests are diminished to the extent necessary to “maintain[] the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference.” STANDARDS std. 10-1.1.
The court rules governing pretrial release by courts of limited jurisdiction reflect these competing governmental and private interests. First, before the court can impose pretrial conditions, it must find probable cause of wrongdoing; otherwise, “the accused shall be released without conditions.”
To protect public safety,
The majority says that
The legislature‘s definition of “violent offense” is also instructive because it says vehicular assault and homicide while under the influence of intoxicating liquor or any drug are violent crimes.
A court has authority to impose pretrial release conditions that protect the public from new DUI‘s, i.e., violent crime, because probable cаuse for DUI is evidence that the defendant may reoffend. Blomstrom and Cooper stipulated to probable cause for DUI and the court found probable cause for Button‘s DUI. Pet‘rs’ Opening Br. at 4, 6, 9; cf. State v. Jorgenson, 179 Wn.2d 145, 149, 312 P.3d 960 (2013) (“We defer to the legislature‘s conclusion that when a trial judge finds probable cause to believe a defendant committed a serious offense, public safety justifies temporarily limiting that person‘s right to possess arms.“). Thus, each of them had a diminished expectation of privacy and the court had authority under
As in Olsen, “authority of law” overcomes a defendant‘s diminished expectation of privacy when the State has a compelling interest to impose narrowly tailored conditions. 189 Wn.2d at 127; see also Maryland, 133 S. Ct. at 1979 (if “privacy-related concerns are weighty enough . . . the
“Trial courts must make difficult decisions when competing interests clash.” Aiken v. Aiken, 187 Wn.2d 491, 494, 387 P.3d 680 (2017). To be narrowly tailored, release conditions must both respect a defendant‘s privacy interests and preserve the State‘s ability to protect the public. Notably, when a court imposes a random urinalysis as a pretrial release condition, the search is not one where the government expects or hopes to find anything. Courts impose random urinalysis on defendants for the limited purpose of monitoring drug and alcohol use and preventing crime. Urinalysis is not a punitive measure, nor does it permit fishing expeditions. Olsen offers additional reasons why random urinalysis is narrowly tailored. See 189 Wn.2d at 130-33. Ultimately, the preferred method of monitoring should be decided on an individualized basis, as these narrowly tailored conditions were. A reviewing court‘s ability to imagine a “less invasive means of achieving the same ends,” majority at 25 n.22, does not divest judges of the authority to impose reasonable
Judges should not be categorically prohibited from imposing necessary and narrowly tailored release conditions on defendants arrested on probable cause for DUI. I respectfully dissent.