State v. MartinezState v. Martinez
- Reporters:
- , ,
- Before:
- Gernon
The opinion of the court was delivered by
Gernon, ].:In this criminal appeal, Juan Pablo Martinez challenges the constitutionality of the Kansas statute which requires an individual to provide blood and saliva samples for a DNA database after a conviction of burglary. We affirm.
Martinez was charged with one count each of felony aggravated burglary and misdemeanor theft. Martinez entered an
Alford
plea to one count of burglary pursuant to
Martinez argues that forcing him to provide blood and saliva samples pursuant to
We recently addressed the constitutionality of
Case law clearly establishes that the extraction and analysis of bodily fluids, such as blood, saliva, urine, and semen, are searches in the context of the Fourth Amendment to the United States Constitution. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 618, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989) (blood and urine); Schmerber v. California, 384 U.S. 757, 767, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966) (blood); Schlicher, 103 F.3d at 942-43 (blood and saliva); Henry v. Ryan, 775 F. Supp. 247, 253 (N.D. Ill. 1991) (saliva); State v. Murry, 271 Kan. 223, 226, 21 P.3d 528 (2001) (blood); Crutchfield v. Hannigan 21 Kan. App. 2d 693, 694-95, 906 P.2d 184 (1995) (urine); State v. Williams, 15 Kan. App. 2d 656, 667, 815 P.2d 569 (1991) (semen). The United States Supreme Court, however, has not yet addressed whether the collection of blood and saliva for a DNA database is constitutional.
The Fourth Amendment does not protect against all searches and seizures, only those that are unreasonable. Whether a search or seizure is reasonable depends on the circumstances surrounding the search or seizure. Skinner, 489 U.S. at 619. Generally, a search or seizure is unreasonable if it is not accompanied by individualized suspicion. City of Indianapolis v. Edmond, 531 U.S. 32, 37, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000). However, individualized suspicion is not an indispensable component of reasonableness. Treasury Employees v. Von Raab, 489 U.S. 656, 665, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989).
The United States Supreme Court has recognized three exceptions to the general rule requiring individualized suspicion.
Edmond,
531 U.S. at 37. When analyzing a search that lacks individ
The first exception to the rule requiring individualized suspicion recognizes the government’s “ ‘special needs, beyond the normal need for law enforcement.’ ” Edmond, 531 U.S. at 37 (citing Vernonia School Dist. 47] v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564, 115 S. Ct. 2386 [1995] [validating the random drug-testing of high school athletes]; Von Raab, 489 U.S. 656 [upholding the drug testing of United States Customs employees for transfer or promotion]; Skinner, 489 U.S. 602 [approving the drug and alcohol testing of railroad employees]); see also Ferguson v. City of Charleston, 532 U.S. 67, 149 L. Ed. 2d 205, 121 S. Ct. 1281 (2001) (invalidating a program for drug testing pregnant mothers); Griffin v. Wisconsin, 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987) (upholding the search of a probationer’s home without probable cause). In determining whether a special need exists, a court must closely review the scheme at issue to determine its primary purpose. Ferguson, 532 U.S. at 81.
The United States Supreme Court has established several different categories of special needs. The
Griffin
Court concluded that the government’s responsibility to supervise probationers is a special need allowing probation officers to search a probationer’s private dwelling without probable cause. 483 U.S. at 875-76. Finding a similar responsibility for supervising schoolchildren to be a special need, the
Vernonia School Dist. 47]
Court upheld a program of drug testing high school athletes. 515 U.S. at 664-65. In
The second exception to the general rule requiring individualized suspicion involves limited administrative searches. Edmond, 531 U.S. at 37 (citing New York v. Burger, 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636 [1987] [upholding the administrative inspection of a closely regulated car-dismantling business]; Michigan v. Tyler, 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942 [1978] [validating the administrative inspection of fire-damaged building]; Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 [1967] [approving an administrative inspection for compliance with city housing code]); see also Wolfish, 441 U.S. 520 (validating the strip search of inmates); Pool v. McCune, 267 Kan. 797, Syl. ¶ 7, 987 P.2d 1073 (1999) (upholding the use of plethysmograph testing for sex offenders).
The third exception to the rule requiring individualized suspicion involves motorist checkpoints. Edmond, 531 U.S. at 37 (invalidating a highway checkpoint for illegal narcotics); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990) (validating a sobriety checkpoint); United States v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976) (validating an illegal alien checkpoint). This exception clearly has no application to the facts of this case. However, it is interesting to note that although the Edmond Court recognized the checkpoint exception as a separate class, it blurred the line between the special needs exception and the checkpoint exception by invalidating a drug interdiction checkpoint because the government’s primary purpose was crime control. 531 U.S. at 44.
Although DNA collection and cataloging statutes do not fall within the special needs analysis previously articulated by the United States Supreme Court, some courts have reviewed DNA statues using the special needs exception. Those cases include
Roe v. Marcotte,
193 F.3d 72, 79-82 (2d Cir. 1999);
United States v. Kimler, 335 F.3d
1132 (10th Cir. 2003);
United States v. Miles,
228 F. Supp. 2d 1130 (E.D. Cal. 2002) (overturning the statute by refusing to find a special need beyond normal law enforcement);
United States v. Reynard,
220 F. Supp. 2d 1142, 1165-69 (S. D.
This distinction is significant in light of the United States Supreme Court’s decisions in Ferguson and Edmond. In Ferguson, the Court determined that the immediate objective for drug testing certain pregnant mothers was to “generate evidence for law enforcement purposes” rather than to treat drug addicted mothers and babies. 532 U.S. at 82-83. Finding that the immediate objective was not a special need beyond the normal need for law enforcement, the Ferguson court struck down a municipal hospital’s policy ordering that nonconsensual drug screens be performed on maternity patients who were suspected of using cocaine. 532 U.S. at 84, 86.
Likewise, in
Edmond,
531 U.S. at 41-42, the Court concluded that the primary purpose for a narcotics checkpoint was to detect ordinary criminal wrongdoing and prosecute the offenders. Because the primary purpose was not beyond the normal need for
The Miles court also considered the special needs doctrine when it analyzed a statute authorizing the collection and cataloging of DNA and determined that the government did not have a special need beyond the normal need for law enforcement. 228 F. Supp. 2d at 1139. Relying on Edmond and Ferguson, the Miles court invalidated a federal statute requiring a former felon to provide a DNA sample. 228 F. Supp. 2d at 1138-40. The Miles court distinguished case law upholding DNA statutes on the basis that they were either decided before Edmond and Ferguson or did not discuss the import of those decisions. 228 F. Supp. 2d at 1140.
This court has a duty to uphold a statute under constitutional attack if there is any reasonable way to construe the statute as constitutionally valid. State v. Engles, 270 Kan. 530, 531, 17 P.3d 355 (2001). The United States Supreme Court has routinely validated the collection and analysis of bodily fluids as long as there was a special need beyond detecting criminal wrongdoing. See, e.g., Vernonia School Dist. 47J, 515 U.S. at 653; Von Raab, 489 U.S. at 666; Skinner, 489 U.S. at 620-21; Griffin, 483 U.S. 868. Here, the State has a special need for accurately solving future crimes and, thereby, protecting the safety and welfare of Kansas citizens. This special need is beyond the normal need for law enforcement because it does not in and of itself detect criminal wrongdoing.
We disagree with the
Miles
court’s analysis of
Edmonds
and
Ferguson.
In determining that DNA collection was not beyond the normal need for law enforcement, the
Miles
court failed to consider the key distinction between DNA information and drug testing and checkpoint inspections. The key distinction is that the drug testing and the checkpoint inspections provide evidence of current or ongoing criminal wrongdoing. Based on the evidence obtained from the drug test and the checkpoint inspections, officers have probable cause to immediately arrest someone for a current or ongoing crime. With DNA information, however, there is no immediate possibility of finding probable cause to support an arrest. Like fingerprint and photograph identification information, the DNA information does not, in and of itself, detect or implicate any criminal
Having met the threshold requirement of establishing a special need as an exception to the general rule requiring individualized suspicion, we must balance the individual’s rights against the State’s legitimate interests by considering the scope of the intrusion, the manner in which the testing is conducted, the reason for the testing, and the place where the testing is conducted. See Wolfish, 441 U.S. at 559.
In balancing the reasons for the DNA testing, it is important to note that convicted felons, such as those specifically included in
It is also significant that convicted criminals have a reduced expectation of privacy. Finding that a probationer’s liberty is limited by the observance of special restrictions, the United States Supreme Court in Griffin upheld the search of a probationer’s residence without probable cause by distinguishing between a probationer’s expectation of privacy in his home and the general public’s expectation of privacy in their homes. 483 U.S. at 874-75. Likewise, we recognized an inmate’s limited expectation of privacy in his body when we upheld plethysmograph testing of sex offenders in a sexual abuse treatment program. Pool, 267 Kan. at 802-03.
Moreover, a person convicted of a crime has a reduced expectation of privacy in his or her identity. Jones, 962 F. 2d at 306; Rise, 59 F.3d at 1560. “Once a person is convicted of one of the felonies included as a predicate offense . . ., his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.” Rise, 59 F.3d at 1560.
The United States Supreme Court has recognized that dispensing with the warrant requirement may be necessaiy when it frustrates the government’s purpose for the search.
Skinner,
489 U.S. at 623. That principle applies in this case. The government cannot establish probable cause to collect DNA information when there is no indication that a crime has even been committed. The essential purpose for a warrant is “to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.”
Skinner,
489 U.S. at 621-22. Here, State authorities are not allowed to choose which offenders will provide samples but are directed by the stat
The State’s justification for DNA testing is accurately solving future crimes to protect Kansas citizens from dangerous criminals. Weighing this substantial State interest against a convicted person’s right to privacy, the balance must tip in favor of the State’s substantial interest. The collection and cataloging of DNA information pursuant to
Martinez attempts to distinguish his case from others by pointing to the recent addition of burglary as one of the crimes set forth in the statute. He argues that DNA evidence is not likely to be used for solving future burglary crimes because the leaving of DNA is so incidental and the chances of police finding such DNA is so remote that there is no legitimate nexus between the two. This argument is without merit.
In Bousman v. Dist. Ct. for Clinton County, 630 N.W.2d 789, 801 (Iowa 2001), the Iowa Supreme Court held that the State must have probable cause before issuing an order requiring a suspect to submit DNA samples. (The holding does not address the application of a DNA collection and cataloging statute.) The case involved the investigation of a burglary that was accomplished by breaking a window. The burglar left drops of blood at the crime scene. Although not relevant to the constitutional analysis in this case, the Bousman case clearly identifies a situation in which DNA evidence may be used to determine who committed a burglary. It also highlights the potential for finding DNA evidence at burglary crime scenes by demonstrating that entry may be achieved through excessive force or breaking windows. Anytime there is excessive force or broken glass, there is the potential for injury and resulting blood evidence.
Affirmed.
Abbott, J. not participating. Larson, S.J., assigned.