State v. SurgeState v. Surge
¶ 1 This case asks us to determine if
FACTUAL AND PROCEDURAL HISTORY
¶ 2 Petitioner Antoine Surge pleaded guilty to murder in the second degree. Petitioner Christopher Yarbrough was convicted of two counts of robbery and one count of burglary. Petitioner Shabray McMurry was convicted of bailjumping. Petitioner James McClinton pleaded guilty to unlawful possession of cocaine. Petitioner Ricardo Guzman-Gil entered an Alford1 plea to one count of third degree rape of a child and one count of second degree assault. Petitioner Allen Bowman entered an Alford plea to one count of possession of stolen property in the second degree. Pursuant to the challenged statute, each petitioner was ordered to provide a biological sample for DNA identification analysis and inclusion in the State‘s DNA database. All six appealed, arguing the compulsory collection of DNA under
¶ 3 When presented with arguments under both the state and federal constitutions, we review the state constitution arguments first. State v. Carter, 151 Wash.2d 118, 125, 85 P.3d 887 (2004). Under the Washington Constitution, it is well established that
Article I, Section 7
¶ 4
¶ 5 The “private affairs” inquiry focuses on “`those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.‘” State v. Young, 123 Wash.2d 173, 181, 867 P.2d 593 (1994) (quoting State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984)). Private affairs are not determined according to a person‘s subjective expectation of privacy because looking at subjective expectations will not identify privacy rights that citizens have held or privacy rights that they are entitled to hold. We begin by examining the historical treatment of the interest asserted, which may disclose that the interest is one a citizen has held. McKinney, 148 Wash.2d at 27, 60 P.3d 46. For example, in Gunwall, we relied in part on a statute first enacted in 1909 to establish the historical treatment of the interest asserted in that case. If history does not show whether the interest is one entitled to protection under
¶ 6 In this case, the “private affairs” inquiry focuses on a convicted felon‘s asserted privacy interest in his or her identity, not on the privacy interests of the ordinary citizen. The distinction is important to our inquiry because the statute involved in this case applies only to the narrow class of individuals who have been convicted of the listed crimes, and the focus must be on their rights.
¶ 8 Petitioners argue
¶ 9 Petitioners read Simpson too broadly. In Simpson, we focused our analysis on the
¶ 10 We find the petitioners’ arguments unpersuasive for two additional reasons. First, the constitutional rights afforded to a person often depend on his or her status. In Washington, a person‘s privacy rights under
¶ 11 Further, petitioners assume they have a valid privacy interest in their identities under
¶ 12 Here, we do not find a private affair has been disturbed because collecting identifying information from convicted felons does not infringe on a privacy interest that convicted felons of this state have held, or should be entitled to hold, safe from government trespass. It is a well established practice of government to collect fingerprints from convicted felons for identification purposes. We find no distinction between that practice and the collection of DNA. In this case, the collection of identifying information authorized by the statute is limited to the same purposes as fingerprints, photos, or other identifying information. Under
¶ 13 Petitioners further contend the Court of Appeals erred in relying on the special needs approach and the traditional balancing test because those tests conflict with our
¶ 14 The search in Kuehn, where school officials searched the luggage of a group of students, is easily distinguished from the searches challenged here. We held the students had a valid privacy interest in their luggage, which, even assuming a lessened expectation of privacy, required at least a reasonable belief the students’ luggage contained contraband. Conversely, petitioners here retain almost no privacy interest in their identity. Upon conviction, they lose the privilege of keeping their identity from becoming part of a government record. The State already collects from convicted persons identifying information such as photographs and fingerprints; a DNA sample is simply another piece of identifying information routinely collected. Individualized suspicion is not required for the government to obtain and record the identity of a person convicted of a crime.
¶ 15 Petitioners also rely on Seattle v. Mesiani, 110 Wash.2d 454, 755 P.2d 775 (1988), and City of Seattle v. McCready, 123 Wash.2d 260, 868 P.2d 134 (1994), to support their contention that this court has repeatedly struck down statutes authorizing searches without individualized suspicion even though the purpose of the searches could be considered a special need. In Mesiani, we found a sobriety checkpoint program unconstitutional under
¶ 16 In McCready, the nonconsensual inspection of residential apartments was conceded by the City of Seattle to be a disturbance of “private affairs” under
¶ 17 Moreover, petitioners contend the appellate court erred in its balancing of the rights of petitioners against the government‘s interest. They quote from our Mesiani opinion “`[t]he easiest and most common fallacy in “balancing” is to place on one side the entire, cumulated “interest” represented by the state‘s policy and compare it with one individual‘s interest in freedom from the specific intrusion on the other’ . . . A fairer balance would weigh the actual expected alleviation of the social ill against the cumulated interests invaded.” Mesiani, 110 Wash.2d at 459, 755 P.2d 775 (quoting State v. Tourtillott, 289 Or. 845, 881, 618 P.2d 423 (1980) (Linde, J., dissenting)). Petitioners maintain the cumulated interest invaded here includes the privacy interest of any person who has a prior felony conviction, even if that person has served his or her term of confinement, as well as the privacy interest of a person currently serving a sentence for a felony conviction. Petitioners argue the privacy rights of a person who has served his or her sentence for a felony conviction are no longer diminished. Thus, they conclude, the diminished privacy right argument does not apply to the entire class of persons the statute targets. We disagree.
¶ 19 The State has established that DNA extraction under
¶ 20 Finally, petitioners argue their DNA has the potential to provide more than just identifying information and this additional information constitutes a disturbance of their private affairs. While we recognize the validity of petitioners’ concerns, we feel they are adequately addressed by the statute itself. The statute at issue expressly limits the use of DNA samples to “identification analysis and prosecution of a criminal offense or for the identification of human remains or missing persons.”
¶ 21 Additionally, the concurrence in dissent (Fairhurst, J.) erroneously cites to cases to support its assertion that, here, a privacy interest exists under
¶ 22 Here, we deal with convicted felons who have, under any form of analysis, a minimal privacy interest in their identities. The analogy to fingerprinting is extremely persuasive in that both DNA typing and fingerprinting impinge on similar privacy interests. The constitutionality of fingerprinting convicted persons is unquestioned. See
¶ 23 Insofar as the use to which the DNA typing results can be put is concerned, the statute does not permit, as we have explained, any use other than for identity purposes. It does not authorize, therefore, an impermissible invasion of bodily integrity through, for example, disclosure of medical conditions or similar information, and there is no basis to conclude that samples contained in these cases have been used for any improper purpose. Therefore, contrary to the view of the dissenting opinions, the statute does not unconstitutionally authorize disturbance of an individual‘s bodily integrity by allowing the DNA results to be used for purposes other than identity.
¶ 24 The minimally invasive procedure involved under this statute is constitutional under
Fourth Amendment
¶ 25 Having determined
¶ 26 First, in City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), the Court invalidated a highway checkpoint program whose primary purpose was the discovery and interdiction of drugs because the primary purpose was indistinguishable from a general interest in crime control. The Court stated they were “particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.” Edmond, 531 U.S. at 43, 121 S.Ct. 447. Then again, in Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), the Court affirmed the limited nature of the special needs doctrine when it struck down a state hospital program that tested pregnant women for drug use and made the results of the test available for police use. While the Court found a significant goal of the program was to protect the health of both the mother and the child, the Court noted “the immediate objective of the searches was to generate evidence for law enforcement purposes. . . .” Ferguson, 532 U.S. at 83, 121 S.Ct. 1281. Finally, petitioners rely on United States v. Kincade, 345 F.3d 1095 (9th Cir.2003), where two judges of the three judge panel held forced blood extractions under the federal DNA statute violated the
¶ 27 The State urges this court to apply the totality of the circumstances approach as outlined by the concurring opinion in Olivas. In the concurring opinion, after making a threshold finding that blood extractions are a minimal intrusion, Justice Utter would have balanced the government‘s need for a DNA database, the degree to which the testing serves that need, and the burden the testing imposes on individual privacy. Olivas, 122 Wash.2d at 104, 856 P.2d 1076. Justice Utter found this approach superior to the special needs analysis used by the majority because it conditioned the constitutionality of the statute on the class of persons being tested, it recognized the close fit between the purpose of the statute and the testing taking place, and he feared the use of special needs balancing in the context of law enforcement would lead to the eventual balancing away of the traditional warrant requirement whenever a strong governmental need was present. Olivas, 122 Wash.2d at 107-08, 856 P.2d 1076. In the alternative, the State contends the special needs analysis of Olivas is still viable and distinguishes Edmond and Ferguson as involving the privacy interests of ordinary citizens who, unlike the petitioners here, enjoyed the full array of protections under the
¶ 28 We find nothing in the federal cases which calls into question our analysis in Olivas under either the majority‘s special needs approach or the concurrence‘s balancing approach. Certainly the concurring opinion in Olivas is more consistent with our cases interpreting
CONCLUSION
¶ 29 We find
WE CONCUR: GERRY L. ALEXANDER, C.J, BARBARA A. MADSEN, J.
CHAMBERS, J. (concurring).
¶ 30 I largely concur. Convicted felons do have a diminished privacy interest in their identifying information. State v. Olivas, 122 Wash.2d 73, 106, 856 P.2d 1076 (1993) (Utter, J., concurring). I write separately to caution that to the extent that
¶ 31 Critically, the statute we are asked to review specifically limits the use of DNA to identification purposes.
¶ 32 However, the statute clearly limits the government‘s use of DNA to identification purposes. Should the State use or permit others to use DNA gathered pursuant to this statute in any manner other than that permitted by the current statute, the State may
¶ 33 I respectfully concur in result.
OWENS, J. (concurring in the result).
¶ 34 While I agree with the majority‘s conclusion that the compulsory collection of deoxyribonucleic acid (DNA) samples from convicted felons does not violate
¶ 35 Although the majority correctly acknowledges that “in some areas”
¶ 36 The majority‘s mistaken notion that this court must engage in both “an independent state constitutional analysis” and a federal constitutional analysis betrays the majority‘s misunderstanding of this court‘s important holding in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). Majority at 211. The majority opinion actually leaves us where the Gunwall court started, as can be seen from the Gunwall court‘s first issue statement: ”When is it appropriate for this court to resort to independent state constitutional grounds to decide a case, rather than deferring to comparable provisions of the United States Constitution as interpreted by the United States Supreme Court?” Id. at 58, 720 P.2d 808 (emphasis added). The Gunwall court‘s mission was to provide a principled way to determine when the state constitution is more protective in a given situation and when, consequently, an independent state analysis is warranted. Providing background on the genesis of that issue, the Gunwall court quoted the following passage from Justice Utter‘s law review article:
“Washington is one of many states that rely on their own constitutions to protect civil liberties. Since the recent retrenchment of the United States Supreme Court in this area, the appellate courts of a majority of the states have interpreted their state constitutions to provide greater protection for individual rights than does the United States Constitution.”
Id. at 59, 720 P.2d 808 (emphasis added) (quoting Justice Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. PUGET SOUND L.REV. 491, 499 (1984)). To determine “[w]hen” our state constitution is to be interpreted as providing “`greater protection for individual rights‘” than the federal constitution, id. at 58, 59, 720 P.2d 808 (emphasis added), the Gunwall court set forth six “nonexclusive neutral criteria . . . relevant in determining whether, in a given situation, the Washington State Constitution should be considered as extending broader rights to its citizens than the United States Constitution.” Id. at 58, 720 P.2d 808 (emphasis added); see also id. at 61, 720 P.2d 808 (reiterating that the six factors are “relevant to determining whether, in a given situation, the constitution of the State of Washington should be considered as extending broader rights to its citizens than does the United States Constitution” (emphasis added)).
¶ 37 In sum, although the majority rightly acknowledges that
¶ 38 That the majority embarks on an
¶ 39 Moreover, although the majority asserts that “an independent state constitutional analysis” is warranted, majority at 211 (emphasis added), the majority nonetheless contradicts that contention by following the
¶ 40 In sum, I would plainly state that we have not previously considered the relative scope of
¶ 41 Finally, even if the majority had defensibly embarked on an independent
WE CONCUR: Justice BOBBE J. BRIDGE.
SANDERS, J. (dissenting).
¶ 42 The majority concludes
A Person‘s Body is Among Their “Private Affairs”
¶ 43 “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
¶ 44 Under
¶ 45 The majority‘s error is simple, but fundamental. It contends collecting these biological samples disturbed no “private affairs” because these prisoners lack “a valid privacy interest in their identities under article
¶ 46 The “private affairs” protected by
¶ 47 First among those privacy interests is a person‘s body. See Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). “A man‘s home is his castle.” State v. Young, 76 Wash.2d 212, 214, 455 P.2d 595 (1969). But his body is his temple. “If any thing is sacred, the human body is sacred.” WALT WHITMAN, “I Sing the Body Electric” in LEAVES OF GRASS (1900). Prisoners lose their privacy interest in “private affairs” lawfully exposed to state agents. State v. Cheatam, 150 Wash.2d 626, 642, 81 P.3d 830 (2003) (holding prisoner lacks privacy interest in personal items lawfully searched and stored by prison). Accordingly, they may indeed have “a diminished privacy interest in their identity.” Majority at 211. But their privacy interest in their body is neither lost nor diminished. Because
¶ 48 A person‘s body is cardinal among the “private affairs” protected by
¶ 49 The majority contends the State may collect biological samples from prisoners because their privacy interests are diminished. But as Judge Reinhardt recently observed, under this rationale “any person who experiences a reduction in his expectation of privacy would be susceptible to having his blood sample extracted” and included in a DNA registry. United States v. Kincade, 379 F.3d 813, 844 (9th Cir.2004) (Reinhardt, J., dissenting). While DNA databanks certainly facilitate effective law enforcement, effectiveness is no guarantee of constitutionality. Individual rights always pale in comparison to societal needs. But it is the ultima ratio of tyranny to claim “you can‘t make an omelet without breaking eggs.” Walter Duranty, Russians Hungry, But Not Starving, N.Y. TIMES Mar. 31, 1933, at 13.2 We trust in
¶ 50 I dissent.
FAIRHURST, J. (concurring in the dissent)
¶ 51 The majority frames Antoine Surge‘s privacy interest as being limited to his identity and, therefore, it holds that
¶ 52 When the State intrudes on an individual‘s autonomous decision making privacy interest under
¶ 53 In Juveniles, we found state interest in mandatory human immunodeficiency virus (HIV) testing of juvenile sexual offenders compelling because it “protects society from a communicable disease, safeguards the interests of victims, [and] facilitates the efficient operation of prisons.”1 Id. at 97-98, 847 P.2d 455. We also found mandatory HIV testing of sexual offenders narrowly tailored because it is “aimed at a high-risk group” and “limits disclosure of test results.” Id. at 98, 847 P.2d 455.
¶ 55 I would conclude that the State intruded on Surge‘s privacy interest in his body and bodily functions and the intrusion was not conducted under authority of law because the State did not have a narrowly tailored compelling interest. I concur in the dissent.
Notes
Every adult or juvenile individual convicted of a felony, stalking under