State v. SurgeState v. Surge
- Reporters:
- Before:
- Kennedy, Becker, Baker
Following their felony convictions, the appellants in these six consolidated appeals were ordered to submit to a collection of biological samples for purposes of DNA identification analysis as required by
But while these appeals were pending, the Ninth Circuit ordered that Kincade be reheard en banc. See, United States v. Kincade, 354 F.3d 1000 (9th Cir.2004) (ordering
We disagree with the Kincade majority‘s conclusion that intervening United States Supreme Court case law has effectively overruled Ninth Circuit precedent that is consistent with Olivas. We believe that the Olivas court propеrly concluded that the drawing of blood from convicted felons to establish a DNA databank serves a special need beyond normal law enforcement that properly may be balanced against the privacy interests of convicted felons. But even if the Olivas court‘s special needs analysis is analytically flawed, our DNA statute nevertheless pаsses Fourth Amendment muster under a different exception to the general warrant requirement, in that obtaining biological samples from convicted felons serves a compelling state interest, the means of collecting such samples are minimally intrusive, and convicted felons have no reasonable expectation of privacy in such identifying markеrs as their fingerprints and DNA. Accordingly, we affirm the judgments and sentences here at issue.
FACTS
Antoine Surge pleaded guilty to murder in the second degree. (No. 51954-9). Christopher Yarbrough was found guilty by a jury of two counts of robbery and one count of burglary. (No. 52303-1). Shabray McMurry was found guilty by a jury of bail jumping. (No. 52373-2). James McClinton pleaded guilty to unlawful possession of cocaine. (No. 52472-1). Ricardo Guzman-Gil еntered an Alford1 plea to one count of third degree rape of a child and one count of second degree assault. (No. 52704-5). Allen Bowman entered an Alford plea to one count of possession of stolen property in the second degree. (No. 52277-9). As part of their sentences, all six defendants were required to provide DNA samples to the Stаte‘s DNA databank as required by
DISCUSSION
I. RCW 43.43.754 and the Fourth Amendment
The statute at issue on appeal,
Every adult or juvenile individual convicted of a felony, stalking under
RCW 9A.46.110 , harassment underRCW 9A.46.020 , communicating with a minor for immoral purposes underRCW 9.68A.090 , or adjudicated guilty of an equivalent juvenile offense must have a biological sample collected for purposes of DNA identification analysis[.]
Although Surge and the State have filed a stipulation that King County‘s preferred procedure for collecting DNA for purposes of
A threshold question is whether the challenged governmental act is a “search” or “seizure” within the scope of the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass‘n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Courts generally agree that the collection and analysis of biological samples from an individual constitutes a search for purposes of the Fourth Amendment. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 76, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (urine tests conducted by stаte hospital staff members were indisputably searches within the meaning of the Fourth Amendment); Skinner, 489 U.S. at 616, 109 S.Ct. 1402 (“compelled intrusion into the body for blood to be analyzed for alcohol content” is deemed a Fourth Amendment search.); In re Shabazz, 200 F.Supp.2d 578 (D.S.C.2002) (grand jury subpoena for saliva sample constitutes a search within the meaning
“The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). What is reasonable “`depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.‘” Skinner, 489 U.S. at 619, 109 S.Ct. 1402 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985)). Whether a particular practice is permissible “`is judged by balancing its intrusion on the individual‘s Fourth Amendment interests against its promotion of legitimate governmental interests.‘” Skinner, 489 U.S. at 619, 109 S.Ct. 1402 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)).
Generally, a search is not reasonable unless it is based on a warrant issued upon probable cause. Skinner, 489 U.S. at 619, 109 S.Ct. 1402. An exception to this general rule arises when “`special needs, beyond the normаl need for law enforcement, make the warrant and probable-cause requirement impracticable.‘” Skinner, 489 U.S. at 619, 109 S.Ct. 1402 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). When faced with legitimate special needs, the United States Supreme Court has not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requiremеnts in the particular context. Skinner, 489 U.S. at 619, 109 S.Ct. 1402.
The high court has upheld warrantless searches as reasonable in various “special need” situations, including drug testing of railroad employees without individualized suspicion because of safety issues inherent in the work, minimal intrusiveness of urine testing, and reduced expectation of privacy of employees of highly regulated industriеs (Skinner, 489 U.S. at 624-27, 109 S.Ct. 1402); work-related searches of government employees’ desks and offices without suspicion of wrongdoing because of interest of employers in conducting business efficiently and reduced expectations of privacy of employees at work (O‘Connor v. Ortega, 480 U.S. 709, 721-26, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987)); search of a student‘s property by school officials based on a suspicion that the student wаs violating school policy, balancing the privacy interests of the student with the substantial need of the school to maintain order (New Jersey v. T.L.O., 469 U.S. at 333, 337-42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)); validating the search of a probationer‘s home based on State‘s interest in operating its probation system, the probationer‘s conditional liberty, and suspicion that the probationer had a weapon (Griffin, 483 U.S. at 873, 107 S.Ct. 3164); and validating visual body cavity searches of prison inmates after balancing the significant security interests of the prison against the privacy interests of the inmates (Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).
Congress and all 50 states have enacted legislation similar to
Our own Supreme Court has previously addressed whether an earlier version of
Appellants assert that Olivas is no longer gоod law. Following the reasoning of the majority in Kincade, the appellants cite Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), cert. denied, 539 U.S. 928, 123 S.Ct. 2583, 156 L.Ed.2d 605 (2003), and City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) for this proposition. Ferguson addressed the practice of a state-run hospital providing urine test results from unsuspecting pregnant women to law enforcement officials for drug prosecutions. Ferguson, 532 U.S. at 69-70, 121 S.Ct. 1281. Weighing the intrusion on the individuals’ interest in privacy against the claimed “special need,” the Ferguson court first noted that the invasion of the patients’ privаcy was “far more substantial” than in previous cases involving drug testing of railroad employees, U.S. Customs agents, and high school students interested in participating in athletics. Ferguson, 532 U.S. at 77-78, 121 S.Ct. 1281 (citing Skinner, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639; Nat‘l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)). The court then stated that the searches were not justified under the “special need” exception because the State‘s primary purpose was to generate evidence for the specific purpose of incriminating the patients. Ferguson, 532 U.S. at 79-83, 121 S.Ct. 1281. Thus, the court held that the practice violated the women‘s Fourth Amendment rights against unreasonable search and seizure. Ferguson, 532 U.S. at 85-86, 121 S.Ct. 1281.
Edmond analyzed the constitutionality of a city highway checkpoint program where vehicles were stopped, their interiors visually inspected from the outside, and drug-sniffing dogs were tаken around the exteriors of the vehicles. Edmond, 531 U.S. at 34, 121 S.Ct. 447. In determining whether individualized suspicion was required to justify the stops, the court considered “the nature of the interests threatened and their connection to the particular law enforcement practices at issue.” Edmond, 531 U.S. at 42-43, 121 S.Ct. 447. The court ultimately held because the primary purpose of the highway checkpоints, to intercept drivers with drugs and to charge them with drug crimes, was indistinguishable from the general purpose of crime control, the program violated the Fourth Amendment. Edmond, 531 U.S. at 48, 121 S.Ct. 447.
Appellants argue that the sole purpose of
[t]herе is a high rate of recidivism among certain types of violent and sex offenders ... [c]reating an expanded DNA data bank bears a rational relationship to the public‘s interest in enabling law enforcement to better identify convicted violent and sex offenders who are involved in unsolved crimes, who escape to reoffend, and who reoffend after release.
Laws 1999, Ch. 329, Sec.1.
Appellants assert that because it is clear that the primary purpose of
Neither Ferguson nor Edmond addressed incarcerated individuals or their reduced privacy rights, previously rеcognized by the U.S. Supreme Court in Griffin, 483 U.S. 868, 107 S.Ct. 3164 and Bell, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447. Ferguson and Edmond focus on non-incarcerated individuals and Ferguson involves the extremely high expectation of privacy of patients receiving medical care. Neither case addresses creation of a DNA database for the purposes of identifying inmates and curbing future recidivism. Rather, both Ferguson and Edmond focused on situations involving coordinated efforts by law enforcement to find evidence of immediate crimes and to prosecute specific individuals based on that evidence.
Defendants also cite United States v. Kincade, 345 F.3d 1095 (9th Cir.2003), a case that analyzed a Federal statute that requires a parolee to provide a DNA sample to the Federal DNA database. Kincade, 345 F.3d at 1099;
But the Ninth Circuit has recently vacated the Kincade opinion in United States v. Kincade, 354 F.3d 1000 (9th Cir.2004), and ordered that the case be reheard en banc. At this writing no en banc decision has been issued.
We note that a recent Seventh Circuit case, Green v. Berge, 354 F.3d 675 (7th Cir.2004) criticizes the analysis of the Kincade majority. Green addresses a Wisconsin statute that requires all felons tо give DNA samples for analysis. Green, 354 F.3d at 676. The Green court noted that all 50 states had similar statutes. The Green court recognized that although the U.S. Supreme Court has yet to address the validity of DNA collection statutes under the Fourth Amendment, state and federal courts are nearly unanimous, with the exception of Kincade, in holding that these statutes do not violate the Fourth Amendment, because of the limited privacy interest of prisoners, the minimal intrusion оf blood drawing, and because the government has a “special need” to obtain identification DNA for purposes of establishing a DNA database. Green, 354 F.3d at 677 (citing Nicholas v. Goord, 2003 WL 256774 (S.D.N.Y.2003) (and cases contained therein); Kimler, 335 F.3d at 1146; Shelton v. Gudmanson, 934 F.Supp. 1048 (W.D.Wis.1996)).
The Green court agreed with these other courts and distinguished both Ferguson and Edmond. The court pointed out that neither Ferguson nor Edmond address safe, nondiscriminatory collection of DNA samples from lawfully incarcerated felons, the situation presented in all DNA database cases. Green, 354 F.3d at 678-79. The court held that the statute in question comported with Fourth Amendment reasonableness requirements under the “special need” doctrine, in part because it was not undertaken for the investigation of a specific crime but to obtain reliable proof of a felon‘s identity. Green, 354 F.3d at 678-79.
The concurring opinion in Green emphasizes that the Kincade court failed to recognize that what constitutes a “reasonable” search under the Fourth Amendment for a felon or parolee is necessarily different from a “reasonable” search for a person who has never been convicted of a crime. Green, 354 F.3d at 679 (quoting Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (“`the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell‘“); Bell, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (upholding prison body cavity search in absence of suspicion of criminal
After Kincade was vacated, appellants cited the recent U.S. Supreme Court decision of Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004). Lidster addresses the constitutionality of a police roadblock set up to obtain information from motorists about a hit-and-run accident occurring about one week earlier at the same location and time of night that resulted in a drunken motorist being apprehended after he nearly hit an officer. Lidster, 540 U.S. at ___, 124 S.Ct. at 886. Lidster adds nothing to the analysis articulated by Edmond, and merely reasserts that when the primary law enforcement purpose for a seizure is not to determine whether occupants of a vehicle are committing a crime, the reasonableness of the seizurе is determined by “`the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.‘” Lidster, 540 U.S. at ___, 124 S.Ct. at 887 (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). This standard comports with existing constitutional law on the “reasonableness” requirement of searches and seizures and does not add anything to the question of whether requiring incarсerated felons to submit DNA samples for a DNA database is reasonable or furthers a “special need.”
We are more persuaded by the analysis contained in Green than by the vacated opinion in Kincade. Establishment of a DNA database for the purposes of identifying incarcerated felons and deterring recidivism appears to fall within the “special need” exception and is not primarily for the normal law enforcement purpose of prosecuting current crimes. Moreover, even if the “special needs” analyses contained in the Green and Olivas opinions might be analytically flawed, the same result obtains by the “totality of the circumstances” approach of Rise. See also, Olivas, 122 Wash.2d at 99-109, 856 P.2d 1076 (Utter, J., concurring) (opining that although “special need” exception was not properly applied, search neverthеless comported with Fourth Amendment under a different narrowly crafted exception — the minimally intrusive search exception). See also, Rise, 59 F.3d at 1562 (taking into account the multiple factors of reduced expectations of privacy held by convicted felons, minimal intrusiveness of blood drawing, and public‘s incontestable interest in deterring recidivism and identifying persons who commit crimes and the likelihood that a DNA databank will advance this interest, the Oregon DNA database statute is reasonable and therefore constitutional under the Fourth Amendment).
We believe that even if our state supreme court were to conclude, after Ferguson and Edmond, that the special need analysis contained in Olivas is analytically flawed, the court would conclude, as do we, that
II. RCW 43.43.754 and Article 1, Section 7
Citing State v. Lucas, 56 Wash.App. 236, 244, 783 P.2d 121 (1989) appellants Guzman-Gil and Bowman additionally argue that even though probationers have diminished privacy expectations, Article 1, section 7, of the Washington State Constitution requires
We affirm the trial court‘s sentencing requirements based on
BECKER, J., concurs.
BAKER, J., concurring.
I concur, because this court is bound by the decision of our Supreme Court in State v. Olivas.1
I note that the Wisconsin statute at issue in Green v. Berge2 provides that if an individual‘s conviction or adjudication has been reversed, the state is required to purge its records and destroy all DNA samples from that person. Our own statute,