Doles v. State
| Decision Date | 22 December 1999 |
| Docket Number | No. 98-273.,98-273. |
| Citation | 994 P.2d 315 |
| Parties | Jeffrey Wayne DOLES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; T. Alan Elrod, Assistant Appellate Counsel, Cheyenne, Wyoming. Argument by Mr. Elrod.
Representing Appellee: Gay Woodhouse, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Deputy Attorney General. Argument by Mr. Rehurek.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
In 1997, Wyoming enacted legislation establishing a state deoxyribonucleic acid (DNA) database as part of a DNA Identification Record System. The statutory scheme requires convicted felons to submit DNA samples for identification purposes. Appellant Jeffrey Wayne Doles was convicted of conspiracy to commit larceny and ordered to submit a DNA sample. On appeal, Doles contends the statutory scheme constitutes an unreasonable search, violating the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution.
We hold that legislation establishing Wyoming's DNA Identification Record System is constitutional and affirm the district court's judgment.
Doles states the issue as:
Does compelling appellant to submit to searches to obtain Appellant's DNA according to Wyo. Stat. §§ 7-19-401 to 7-19-406 violate appellant's rights to be free from unreasonable searches?
The State rephrases the issue as:
Does the compelled submission of DNA samples by convicted felons under Wyoming's DNA Identification Record System, Wyo. Stat. §§ 7-19-401 through 7-19-406, violate the Fourth Amendment to the United States Constitution or Art. 1, § 4 of the Wyoming Constitution?
In 1997, Wyoming passed legislation establishing a state DNA database identification system. Wyo. Stat. Ann. § 7-19-401 through 7-19-406 (LEXIS 1999). Wyoming's Act directs the division of criminal investigation (division) within the office of the Wyoming attorney general to establish a state DNA database for convicted felons, crime scene specimens, and close biological relatives of missing persons. Wyo. Stat. Ann. § 7-19-402(a) (LEXIS 1999). The Act requires that every person convicted of a felony on or after July 1, 1997, and every person who on or after July 1, 1997, is in custody because of a felony conviction, provide a DNA tissue sample. Wyo. Stat. Ann. § 7-19-403(a) (LEXIS 1999).
The Act defines a DNA sample as a human tissue sample containing DNA which may include, but is not limited to, blood, hair, and buccal (saliva) cells. Wyo. Stat. Ann. § 7-19-401(viii) (LEXIS 1999). DNA samples are analyzed to determine identification characteristics specific to the person and stored as a DNA record in the database. Wyo. Stat. Ann. § 7-19-403(a) (LEXIS 1999). The identification information can be accessed by federal, state, and local criminal justice agencies for criminal law enforcement purposes. Wyo. Stat. Ann. § 7-19-404(a), (b) (LEXIS 1999). The database may also be used in developing a DNA population statistics database, and, in the event of a mass disaster, for humanitarian purposes. Wyo. Stat. Ann. § 7-19-404(iii), (iv) (LEXIS 1999). Unauthorized access or accessing the database for impermissible purposes is a criminal offense. Wyo. Stat. Ann. § 7-19-404(d) (LEXIS 1999).
The Act does not specify the method for collecting DNA samples; however, the division is directed to promulgate rules and regulations governing collection and transfer of DNA samples. Wyo. Stat. Ann. § 7-19-403(b) (LEXIS 1999). Reasonable force to secure a DNA sample is authorized, as is expungement of a DNA profile when a conviction is reversed and dismissed. Wyo. Stat. Ann. §§ 7-19-406, -405 (LEXIS 1999).
On March 13, 1998, police arrested Doles and a companion for stealing electronic merchandise from the Wal-Mart store in Gillette, Wyoming. Doles was tried and convicted for conspiracy to commit larceny and appeared for sentencing on August 12, 1998. In addition to imprisonment and a fine, the district court ordered that he supply a DNA sample as required under the Act. The district court entered its order despite Doles' objection that the Act violated the Fourth Amendment's guarantee against unreasonable searches and seizures. This appeal followed.
"The protection afforded by the Fourth Amendment has been defined as the protection of persons from unreasonable government intrusions into their legitimate expectations of privacy." King v. State, 780 P.2d 943, 959 (Wyo.1989). This constitutional protection is violated by an unreasonable search and seizure. Saldana v. State, 846 P.2d 604, 610 (Wyo.1993); Pena v. State, 792 P.2d 1352, 1357 (Wyo.1990). Whether the Act unconstitutionally compels unreasonable searches presents a question of law that we review de novo. Hall v. State, 911 P.2d 1364, 1367 (Wyo.1996).
Doles argues that the Act violates his Fourth Amendment right to be free from unreasonable searches and seizures. He contends submitting a DNA sample that does not provide probative evidence connecting a person to a crime is an unreasonable search because it subjects him to a bodily intrusion without probable cause or individualized suspicion that he has engaged in criminal activity. The State recommends that we utilize the approach of the Fourth, Ninth, and Tenth Circuits to address this issue and contends that gathering evidence from "free persons" in order to determine the identity of those responsible for committing unsolved crimes must be distinguished from obtaining the DNA of "convicted felons" whose identity is a matter of legitimate state interest and who, because of their conviction, have a reduced expectation of privacy in their identifying information.
All fifty states have statutorily established DNA databases. Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 1087 (1999), petition for cert. filed, 68 U.S.L.W. 3153 (U.S. Aug. 20, 1999) (No. 99-359).
Springfield v. State, 860 P.2d 435, 439 (Wyo. 1993). DNA's usefulness in future criminal law investigation is the primary purpose facilitated by DNA databases and has been compared to fingerprinting and other methods of offender identification. Boling v. Romer, 101 F.3d 1336, 1339-40 (10th Cir. 1996). The state's interest in DNA permanent identification records of convicted persons has been found comparable to a state's interest in maintaining fingerprint, arrest, and photograph records for identification purposes of suspects arrested upon probable cause. Landry, 709 N.E.2d. at 1092; Jones v. Murray, 962 F.2d 302, 306 (4th Cir.1992), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992).
Obtaining a blood or saliva sample is a search and seizure implicating Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989). Relying on Skinner, courts have decided that a statutorily mandated submission of a DNA sample for analysis is a search and seizure implicating Fourth Amendment concerns. Boling 101 F.3d at 1340; Rise v. State of Oregon, 59 F.3d 1556, 1558-59 (9th Cir.1995), cert. denied, 517 U.S. 1160, 116 S.Ct. 1554, 134 L.Ed.2d 656 (1996). Also relying upon Skinner, we have previously held that urinalysis is a search implicating the Fourth Amendment. Matter of ALJ, 836 P.2d 307, 311 (Wyo.1992). We hold that the Act's demand for a DNA sample is a search and seizure implicating Fourth Amendment privacy rights.
State and federal decisions uphold DNA collection from convicted persons as a reasonable search. Landry, 709 N.E.2d at 1092; Boling, 101 F.3d at 1340; Rise, 59 F.3d at 1562; Jones, 962 F.2d at 307-08; People v. Wealer, 264 Ill.App.3d 6, 201 Ill.Dec. 697, 636 N.E.2d 1129, 1137 (1994); State ex rel. Juvenile Dep't of Multnomah County v. Orozco, 129 Or.App. 148, 878 P.2d 432, 436 (1994) (en banc); State v. Olivas, 122 Wash.2d 73, 856 P.2d 1076, 1086 (1993). The federal decisions, Boling, Rise, and Jones, distinguished between the rights of "free persons" and those in custody, a distinction discussed by the Tenth Circuit, but first made by the Fourth Circuit:
[T]here is no
Boling, 101 F.3d at 1339 (quoting Jones, 962 F.2d at 306-07 (citations omitted)).
The Ninth Circuit also recognized the distinction:
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