State Ex Rel. Juvenile Department v. OrozcoState Ex Rel. Juvenile Department v. Orozco
Lead Opinion
In 1992, child was found to be within the jurisdiction of the court for having committed acts that, if done by an adult, would have constituted rape in the first degree. ORS 163.375. The court denied child’s request to convert his delinquency petition to a dependency petition and committed him to a juvenile training school. The juvenile court also ordered child to provide a blood sample for DNA testing pursuant to former ORS 419.507(ll)(a)
1,2. Child first assigns error to the order requiring him to submit a blood sample. He argues that a search authorized by ORS 137.076 violates Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The proper sequence for analyzing a constitutional claim in Oregon is to look first to state law, including state constitutional law, before reaching a federal constitutional claim. Sterling v. Cupp,
Former ORS 419.507(ll)(a) provided, in part:
“Whenever a child is found to be within the jurisdiction of the court under ORS 419.476(l)(a) for having committed an act which, if done by an adult would constitute a felony offense listed in ORS 137.076(1), the court shall order the child to submit to the drawing of a blood sample in the manner provided by ORS 137.076.”
Once the blood is extracted, a genetic profile is developed and added to the database for adult and juvenile sex offenders.
The question before us is whether the search for a DNA “fingerprint” in the blood of sex offenders is reasonable when the DNA is sought for possible use in future criminal investigations. Child argues that it is reasonable for the state to extract blood for evidentiary purposes only if it has a warrant, based on probable cause, or if an exception to the warrant requirement applies. However, the warrant requirement has never been applied to routine searches of convicted or adjudicated persons under state custody. Whether the blood draw is an unreasonable search must be determined with reference to child’s right to privacy, which is diminished because he is in post-adjudicated custody.
Routine searches of prisoners and probationers without probable cause are reasonable if there is a penological objective. See State v. Culbertson,
“[Pjrisoners, even while incarcerated, retain those constitutional rights that are not inconsistent with legitimate penological objectives.”29 Or App at 369 .
The state fails to isolate any penological objective for ORS 137.076, i.e., any objective related to the management or mission of a prison. Nevertheless, when the case law and statutes defining the constitutional rights of convicts are read
ORS 137.076 searches fall into a narrow class of searches and seizures of prisoners that are performed without probable cause and without a penological objective. These searches and seizures are performed for law enforcement purposes, specifically, to record the immutable characteristics of arrestees and offenders for use in the investigation of future crimes. Included in this class are the fingerprints, palm prints, toe prints and “other personal identifiers” that are seized by law enforcement officers after arrest. ORS 181.511. We are unwilling to say that fingerprinting someone after arrest is an unreasonable seizure.
While blood-testing is arguably a greater insult to human dignity than fingerprinting,
The dissent argues that drawing blood cannot be analogized to fingerprinting. However, its argument rests on a strained reading of state and federal case law. The dissent reasons as follows: Because State v. Cullop,
Child next argues that ORS 137.076 violates the Fourth Amendment to the United States Constitution. Under the Fourth Amendment, drawing a blood sample is a search. However, the United States Supreme Court has recognized a number of limited exceptions to the warrant requirement for searches and seizures that involve only a minimal intrusion.
The minimally intrusive quality of blood extraction has repeatedly been noted. Cf. Winston v. Lee,
Child also assigns error to the treatment of his case as a delinquency matter rather than as a dependency matter. We said in State ex rel Juv. Dept. v. Bishop,
Child’s remaining assignment of error does not merit discussion.
Affirmed.
Notes
ORS 419.507(ll)(a) was repealed by Oregon Laws 1993, chapter 33, section 373, re-enacted and recodified at ORS 4190.473(1).
Offenses listed in ORS 137.076 are rape, sodomy, unlawful sexual penetration, sexual abuse, public indecency, incest or using a child in a display of sexually explicit conduct; burglary with intent to commit the above offenses; promoting or compelling prostitution; conspiracy or attempt to commit any felony listed above; murder or aggravated murder.
ORS 181.085(1) provides, in part:
“The Department of State Police is authorized to:
*151 “(a) Store blood samples received under authority of this section, ORS 137.076, 161.325 and 419C.473(1), and autoradiographs and other physical evidence obtained from analysis of such samples;
“(b) Analyze such samples for the purpose of establishing the genetic profile of the donor or otherwise determining the identity of persons or contract with other qualified public or private laboratories to conduct that analysis;
“(c) Maintain a criminal identification data base containing information derived from blood analysis!)]”
State v. Milligan, supra, describes a compelled blood test as both a search and a seizure. Defendant’s sole challenge to former ORS 419.507(ll)(a) is that it permits an unconstitutional search.
Fingerprinting has never been analyzed under Article I, section 9. Article I, section 9, is implicated because a person and that person’s hands must be seized in order to take fingerprints. In Davis v. Mississippi,
Searches and seizures are separate acts and must be analyzed separately. State v. Herbert,
The dissent argues that (1) blood tests differ from fingerprints because fingerprints, like voice exemplars, are not “hidden attributes;” and (2) that blood tests involve puncturing the skin. In regard to the first proposition, we take judicial notice of the fact that most people do not walk down the street with magnifying glasses to facilitate scrutiny of their fingerprints. Thus, fingerprints are not “public knowledge” any more than one’s DNA is “public knowledge” if they had a bloody nose. In regard to the second proposition, we grant that blood is drawn by puncturing the skin, but the dissent does not persuade us that this difference is a constitutionally significant one. Afullbody cavity search does not puncture the skin, but arguably has more serious constitutional implications.
The court has applied a balancing test for minimally intrusive searches to uphold “stop and frisk” searches, Terry v. Ohio,
At the time of the hearing, child had been on probation since November, 1990. His prior adjudications had been for robbery in the third degree, assault in the fourth degree, unlawful possession of a firearm, kidnapping in the first degree, two counts of harassment and two more counts of assault in the fourth degree. In addition, child had a pending probation violation and an unlawful possession of a weapon charge. Child had failed in a number of detention programs and foster homes, as well as failing in a trial return to his mother’s home. The representative from Children’s Services Division told the court that they had nothing left to offer child.
Concurrence Opinion
concurring.
Although I agree with the majority’s conclusion that the constitution is not violated by a statute that requires certain juvenile offenders to provide a blood sample for DNA testing, I would analyze the issue differently.
ORS 419C.473(1) applies to child, because he was found to be within the jurisdiction of the juvenile court for acts which, had they been committed by an adult, would have
By authorizing the extraction of a blood sample, ORS 4190.473(1) authorizes a type of search and seizure by a government agency. State v. Milligan,
I would hold that the challenged statute is clearly reasonable, for a number of reasons. First, it is narrow in scope. It does not require that an individual give more than one DNA blood sample in his or her lifetime, ORS 419C.473(2)(a),
Second, the reasons for and consequences of a search and seizure under ORS 419C.473 comport with long-
When a blood draw takes place in the post-adjudication/post-conviction context, the relevant inquiry is no longer whether an officer had probable cause to believe that an individual committed a crime, or whether a warrant could have been timely secured. In this context, the rules requiring individualized suspicion, and the protections that are afforded by those rules, yield to concepts such as ‘ ‘penological objectives,” which place greater emphasis on the public’s interest in maintaining security and rehabilitating criminals. Our focus shifts to whether the governmental action is unreasonable and whether the constraints, if any, that are placed on the adjudicated juvenile or convicted adult are “capricious” or “irrelevant” to the affected individual’s status. State v. Robinson,
The dissent incorrectly suggests that, although a class-based restriction on convicted felons’ constitutional right to bear arms was upheld in State v. Robinson, supra, no class-based restriction would be permissible in the arena of search and seizure. Yet the case law regarding penological objectives has allowed precisely such restrictions by upholding class-based searches and seizures that do not rely on individualized suspicion. For example, a convicted felon who is incarcerated may be subjected to a body cavity search if he or she has been in contact with visitors from outside the institution. Bell v. Wolfish,
Third, although the dissent recognizes that convicted offenders are not entitled to the same constitutional protections as other citizens when there is a valid penological justification for the government’s action, see
In its final paragraph, the dissent expresses concerns about “infants in maternity wards” being subjected to involuntary blood extractions.
Fourth, I believe very strongly that an analysis of the constitutionality, i.e., the reasonableness, of the blood draw authorized by ORS 419C.473, also must give due consideration to the protection of the public, which has always been —and should forever continue to be — one of the vital concerns of our criminal justice system. Although the dissent criticizes such considerations as an impermissible “balancing” of public and private rights, the fact of the matter is that convicted criminals and juvenile delinquents have, by their very actions, already impaired their constitutional rights to, inter alia, liberty, privacy and freedom of association. As a consequence of his acts and the juvenile court’s having assumed jurisdiction over him, child in this case has privacy interests that are dramatically lower than those enjoyed by children in general.
Although, for the reasons discussed above, I would conclude that ORS 419C.473 authorizes a “reasonable” search and seizure, I believe that a complete analysis of the statute’s constitutionality must include an additional step. The statute provides that, upon a finding of jurisdiction over a child who has committed one of the listed offenses,
“the court shall order the child to submit to the drawing of a blood sample in the manner provided by ORS 137.076. The court shall further order that as soon as practicable after the*160 entry of the dispositional order, the law enforcement agency attending upon the court shall cause a blood sample to be drawn and transmitted in accordance with ORS 137.076. The court may also order the child to reimburse the appropriate agency for the cost of drawing and transmitting the blood sample.” ORS 4190.473(1).
For adult offenders, the court is directed to “include in the judgment of conviction an order stating that a blood sample is required to be drawn[.]” ORS 137.076(2)(b). Given the timing and the mandatory nature of the blood draw, and the fact that it is a governmental action that flows directly from the judgment of conviction, I believe that the blood draw should be viewed as one aspect of a juvenile’s disposition, or as one component of an adult offender’s sentence. As such, it must comport with the constitutional protections relating to sentencing, which I would summarize as follows: Criminal offenders may not be subjected to cruel and unusual punishment, Or Const, Art I, § 16; may not be treated “with unnecessary rigor,” Or Const, Art I, § 13; and may not be punished under laws that are founded on vindictive justice, Or Const, Art I, § 15. The taking of ablood sample to establish a DNA databank does not violate any of those constitutional protections.
For all of these reasons, I concur in the majority’s holding that the trial court did not err in requiring child to submit to a blood test pursuant to ORS 419C.473.
Edmonds and De Muniz, JJ., join in this concurrence.
A Virginia statute that allows the government to obtain blood samples from convicted felons for the creation of a DNA database that will be used in future law enforcement purposes has been held not to violate the Fourth Amendment to the United States Constitution. Jones v. Murray, 962 F2d 302, 307 (4th Cir), cert den
ORS 419C.473(2)(a) provides that no blood draw is required if the child has previously provided an adequate blood sample.
The prospective use of DNA patterns serves the same function as the government’s collection of fingerprints, photographs and toe prints: It is an aid to identification. As the dissent acknowledges, the accumulation and use of those other identifying characteristics is not unconstitutional.
It is worth noting that, even under the rules on which the dissent would have us rely, an officer may draw blood to determine the level of intoxication of a person who is merely believed to be committing the crime of DUII. State v. Milligan, supra.
In Robinson, the defendant challenged the constitutionality of a statute that permanently bars convicted felons from possessing concealable firearms. The defendant in that case argued, correctly, that the statute amounts to a life-long impairment of his constitutional right to bear arms. Or Const, Art I, § 27. The Oregon Supreme Court upheld the statute. It noted, first, that the legislature “was attempting to prevent crimes of the kind in which concealed weapons play a part,” by placing
“The legislature evidently believed that ex-convicts who possess [concealable] firearms * * * are more likely to commit evil than if they are forced to remain unarmed. We can not say that a classification based upon that proposition is capricious or that it is irrelevant to the legislative purpose. * * * [Even an individual who commits a non-violent felony] displays a lack of proper restraint to which virtually all others yield instinctively. By his own felonious conduct he classifies himself and places himself in a category different from that composed of the law abiding. When the legislature concludes that a person of that kind can not be trusted with a concealable weapon we surely can not say that its decision lacks reason.”217 Or at 616-17 . (Emphasis supplied.)
As we said in State v. Brotherton,
“It has long been the rule that ‘[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.’ Price v. Johnson,
Dissenting Opinion
dissenting.
Facilitating future criminal investigations is a laudable legislative goal. But that goal cannot constitutionally be achieved through dragnet, warrantless searches and seizures of criminal offenders’ blood. Accordingly, I dissent from the majority’s opinion affirming the trial court’s order requiring child to provide a blood sample for DNA testing pursuant to former ORS 419.507(ll)(a) (repealed by Or Laws 1993, ch 33, § 373).
Extraction of blood, as the majority acknowledges, implicates Article I, section 9, of the Oregon Constitution.
The majority’s conclusion depends on two premises. First, the extraction of blood is similar to the routine fingerprinting of suspects or offenders in custody. Second, even in
The majority’s fingerprinting premise fails because we, and our Supreme Court, have treated fingerprinting and blood extraction as being constitutionally different. In State v. Cullop,
Conversely, in State v. Milligan, supra, the court held that exigent circumstances, e.g., the dissipation of a suspect’s blood alcohol level “with every breath he took,” permitted the warrantless and unconsented extraction of blood from a DUII suspect.
This distinction between fingerprinting and blood extraction is constitutionally sound. As we implicitly recognized by our reference to United States v. Dionisio, supra, in State v. Cullop, supra, fingerprinting, like voice exemplars, involves personal features or attributes that are not hidden but are, instead, exposed to the public at large. There is no privacy right in such features or attributes:
“The physical characteristics of a person’s voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Lie a man’s facial*163 characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. * * *
“The required disclosure of a person’s voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in [Schmerber v. California,384 US 757 ,86 S Ct 1826 ,16 L Ed 2d 908 (1966)]. * * * Rather, this is like the fingerprinting in [Davis v. Mississippi].”410 US at 14-15 .
Cf. Davis v. Mississippi,
Blood extraction is different. By its very nature, blood extraction involves the puncturing of skin and the drawing out of bodily fluids that would otherwise be hidden from public scrutiny.
Consistent with Milligan, if police officers wish to obtain a blood sample from a murder suspect to compare the suspect’s blood with that found at the crime scene, they must first obtain a warrant based on “individualized suspicion” that the suspect was, in fact, involved in the murder. See State v. Boyanovsky,
Here, child is, at worst, constitutionally indistinguishable from the hypothetical murder suspect. There are no exigent circumstances or other established exceptions to the warrant requirement that would permit the extraction
Because the fingerprinting premise is inapt, the majority’s defense of the blood extraction statutes rests, ultimately, on the second premise, that even in the absence of special penological objectives,
The concurring opinion attempts to fill the breech by invoking State v. Robinson,
“According to page 469 of A History of the Oregon Constitution (Carey), Art I, § 27, was patterned upon and is identical to Art I, §§ 32 and 33, Constitution of Indiana. McIntyre v. State, 170 Ind 163,83 NE 1005 [1908], held that the Indiana provision (§ 32) permits reasonable regulation of the right to bear arms and that accordingly legislation prohibiting the carrying of concealed weapons is valid.” State v. Robinson, supra,217 Or at 619 .
Because Article I, section 27, imports a notion of “reasonable regulation,” the legislature may impose generic, cZass-based restrictions on the right to bear arms. See ORS
Unlike Article I, section 27, the protections of Article I, section 9, are not circumscribed by the general police power. Such protections do not depend on actuarial predictions, however “rational,” that members of a targeted class are generally more likely to engage in future criminal conduct than other citizens. Article I, section 9, requires individualized, not generic, suspicion. State v. Boyanovsky, supra,
Absent a showing of penological justification, convicted offenders are entitled to the same protections under Article I, section 9, as other citizens.
I respectfully dissent.
ORS 419C.473 (Or Laws 1993, ch 33, § 237) replaces former ORS 419.507(11) and is substantively the same.
Juvenile offenders found to have committed acts which, if committed by an adult, would constitute crimes are properly referred to as “within the jurisdiction of the juvenile court.” See OES 4190.005(1); State ex rel Juv. Dept. v. Cruz,
Because I would base my reversal on state constitutional grounds, there is no need to reach child’s Fourth Amendment arguments. See Sterling v. Cupp,
Article I, section 9, of the Oregon Constitution provides, in part:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * *
State v. Cullop, supra, was decided under a Fourth Amendment analysis, and no subsequent decision has addressed the application of Article I, section 9, to fingerprinting. Accord State v. Flores,
For the same reasons, suspects who are legally in custody can be compelled to participate in line-ups, and their mug shots can be taken without a warrant.
In such circumstances, the critical exigencies in Milligan — e.g., the potential for dissipation for blood alcohol levels, would not be present. Accord Cupp v. Murphy,
The majority concedes that there is no valid penological objective justifying the search in this case.
1 acknowledge, and appreciate, the concurring opinion’s observation that the conduct triggering statutory blood draws is “very serious.”
Valid penological objectives include rehabilitation of persons on probation or parole. Consequently, conditions of probation and parole pertaining to testing of breath or urine for controlled substances or alcohol use are permissible so long as such conditions are reasonably calculated to promote a particular offender’s rehabilitation. State v. Fisher,