Mario W. v. Kaipio
| Decision Date | 27 October 2011 |
| Docket Number | 1 CA–SA 11–0031,1 CA–SA 11–0020,1 CA–SA 11–0032,1 CA–SA 11–0042,1 CA–SA 11–0025,Nos. 1 CA–SA 11–0016,1 CA–SA 11–0043.,s. 1 CA–SA 11–0016 |
| Citation | 228 Ariz. 207,265 P.3d 389 |
| Parties | MARIO W., Petitioner, v. The Honorable Thomas KAIPIO, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner,State of Arizona, Real Party in Interest.Bradley W., Petitioner, v. The Honorable Thomas Kaipio, Commissioner of the Superior Court of the State of Arizona, In and for the County of Maricopa, Respondent Commissioner,State of Arizona, Real Party in Interest.Alexis A., Petitioner, v. The Honorable Mark Brain, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner,The State of Arizona, Real Party in Interest.Noble B., Petitioner, v. The Honorable Thomas Kaipio, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,State of Arizona, Real Party in Interest.Bailey J., Petitioner, v. The Honorable Mark F. Aceto, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,State of Arizona, Real Party in Interest.Devon C., Petitioner, v. The Honorable Peter A. Thompson, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner,State of Arizona, Real Party in Interest.Eric R., Petitioner, v. The Honorable Kaipio, Commissioner Of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,State of Arizona Real Party in Interest, Respondent. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Maricopa County Public Defender's Office By Aaron Jason Max, Deputy Public Defender, Thomas R. Garrison, Deputy Public Defender, Lori A. Markle, Deputy Juvenile Public Defender, Phoenix, Attorneys for Petitioner Mario W.
Maricopa County Public Defender's Office By Ian Pettycrew, Deputy Juvenile Public Advocate, Mesa, Attorneys for Bradley W.
Maricopa County Public Defender's Office By Lori A. Markle, Deputy Juvenile Public Defender, Phoenix, Attorneys for Petitioner Alexis A.Maricopa County Public Defender's Office By Colleen Engineer, Deputy Juvenile Public Defender, Mesa, Attorneys for Petitioner Noble B. and Devon C. Maricopa County Public Defender's Office By Vincent Troiano, Deputy Juvenile Public Defender, Mesa, Attorneys for Petitioner Baily J.Maricopa County Public Defender's Office By Devra N. Ellexson, Deputy Juvenile Public Defender, Mesa, Attorneys for Petitioner Eric R.Maricopa County Attorney's Office By Linda Van Brakel, Deputy County Attorney, David J. Flader, Deputy County Attorney, Jeffrey W. Trudgian, Deputy County Attorney, Phoenix, Attorneys for Real Party In Interest.
¶ 1 These consolidated special actions require us to evaluate the constitutionality of the requirement under Arizona Revised Statutes (“A.R.S.”) section 8–238 (Supp. 2009) that the seven juvenile petitioners submit a tissue sample for deoxyribonucleic acid (“DNA”) testing as a condition of their release.1 For the reasons that follow, we decide that the taking of DNA samples from five of the juveniles (Mario, Bradley, Alexis, Eric, and Noble) (hereinafter “five juveniles”) is constitutional but that the proposed taking of DNA samples from two of the juveniles (Bailey and Devon) (“two juveniles”) would be unconstitutional in the absence of a judicial finding of probable cause to believe the juvenile committed one of the offenses listed in A.R.S. § 8–238.
¶ 2 Regarding the five juveniles, Judge Orozco and I agree that the DNA sample may constitutionally be taken, although our reasoning differs to some extent, and Judge Norris dissents from our decision regarding these five juveniles. Regarding the two juveniles, Judge Norris and I agree that application of A.R.S. § 8–238 to take DNA samples from these two juveniles would be unconstitutional, although our reasoning differs significantly. Judge Orozco concludes that the operation of applicable statutes and juvenile court rules will, as a practical matter, prevent the taking of DNA samples from these two juveniles in the absence of a judicial finding of probable cause, and she therefore disagrees with our conclusion regarding the two juveniles.
¶ 3 For the reasons that follow in my portion of this opinion, I conclude that DNA samples may constitutionally be taken from the five juveniles primarily because there has been a judicial finding of probable cause to believe that each juvenile has committed one of the enumerated offenses within A.R.S. § 8–238. For the two juveniles, there has been no such finding, and I conclude that the constitutional protection against unreasonable searches and seizures precludes the taking of the DNA samples under these circumstances.
¶ 4 For the reasons stated in Judge Orozco's separate concurrence and dissent, she concludes that the statutorily authorized use of the DNA information for identification is substantively similar to the common use of fingerprints and that A.R.S. § 8–238 is constitutionally applied to all seven juveniles because a finding of probable cause will necessarily be made regarding the two juveniles before they can be detained.
¶ 5 For the reasons stated in Judge Norris's separate dissent and concurrence, she concludes that under most circumstances the pre-adjudication taking of DNA from juveniles accused of the offenses listed in A.R.S. § 8–238 is unconstitutional even if there has been a judicial finding of probable cause to believe that the juvenile has committed one of the listed offenses.
¶ 6 Special action jurisdiction is appropriate when there is no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R. Spec. Act. 1(a); State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App.2001). “Special action jurisdiction is more likely to be accepted in cases involving a matter of first impression, statewide significance, or pure questions of law.” State ex rel. Pennartz, 200 Ariz. at 585, ¶ 8, 30 P.3d at 652. This case involves the interpretation of a statute, A.R.S. § 8–238, 2 as a matter of first impression, and presents both a pure question of law and a matter of statewide importance. Accordingly, in our discretion we will exercise our special action jurisdiction in these consolidated matters.
¶ 7 Seven juveniles, Mario, Bradley, Alexis, Eric, Noble, Bailey, and Devon, petition for special action relief regarding the necessity of their compliance with the statutory requirement to submit to a DNA sample prior to their release.
¶ 8 Mario, age fourteen years, was the subject of a juvenile referral alleging that he committed sexual conduct with a minor. A petition for delinquency was subsequently filed, charging him with one count of sexual conduct with a minor, in violation of A.R.S. § 13–1405 (2010). At an advisory hearing, the court found that there was probable cause to believe Mario committed the offense with which he was charged. The court ordered that the juvenile submit to DNA testing within five days of the hearing as a condition of his release. Counsel for Mario requested a stay of the order for DNA testing, which the court denied. Mario was released to a family member on the Juvenile Electronic Tracking System (“JETS”), and the court ordered him to have a DPS ankle bracelet and refrain from contact with the victim. The court also ordered that Mario participate in the mental competency process. The court advised Mario that, if he did not provide the DNA sample, the prosecutor could move to revoke his release, and he could be brought back into detention for failing to comply with the statute.
¶ 9 Thirteen-year-old Bradley was also the subject of a juvenile referral for allegedly committing sexual conduct with a minor. The State filed a petition for delinquency and charged Bradley with count one, attempted sexual conduct with a minor under fifteen, in violation of A.R.S. § 13–1405, and, count two, assault with intent to injure, insult, or provoke, in violation of A.R.S. § 13–1203(A)(3) (2010). At an advisory hearing, the court found that there was probable cause that Bradley committed the charged offenses. The court released Bradley to the care of a family member, and the court ordered that Bradley undergo a mental competency evaluation, refrain from contact with the victim, be released with an ankle bracelet, and submit a DNA sample within five days.
¶ 10 Fifteen-year-old Alexis was the subject of a juvenile referral alleging that he committed burglary in the second degree. The State subsequently filed a delinquency petition charging Alexis with count one, burglary in the second degree, in violation of A.R.S. § 13–1507 (2010), and, count two, possession of burglary tools, in violation of A.R.S. § 13–1505 (2010). At a pretrial conference, the juvenile court noted that the court had neglected to order that Alexis provide a DNA sample within five days following his advisory hearing. Counsel for Alexis requested that the court order a stay regarding the DNA sample because A.R.S. § 8–238 was unconstitutional and there had been no finding of probable cause for the taking of the DNA. The court recognized that there had been two previous judicial findings of probable cause that Alexis committed the offenses with which he was charged. In denying the stay request, the court concluded that the taking of the DNA sample was “like taking photos of someone ... [or] taking fingerprints of them.” The court released Alexis to a family member and ordered that he attend school daily, undergo urinalysis testing as directed, refrain from contact with the victims, and provide a DNA sample within five days. The court advised Alexis that, if Alexis did not provide the DNA sample, his release conditions could be revoked.
¶ 11 Thirteen-year-old Eric was the subject of a juvenile referral for burglary in the...
To continue reading
Request your trial
-
King v. State
...court upheld an Arizona statute allowing a judge to condition pre-trial release upon collection of a DNA sample. Mario W. v. Kaipio, 265 P.3d 389 (Ariz. Ct. App. 2011). Five juveniles were charged30 and an "advisory" court concluded there was probable cause for bringing the charges. Mario W......
-
King v. State
...upheld an Arizona statute allowing a judge to condition pre-trial release upon collection of a DNA sample. Mario W. v. Kaipio, 228 Ariz. 207, 265 P.3d 389 (Ariz.Ct.App.2011). Five juveniles were charged 30 and an “advisory” court concluded there was probable cause for bringing the charges. ......
-
Maryland v. King
...of arrestees is impermissible. See, e.g., People v. Buza, 129 Cal.Rptr.3d 753 (App.2011) (officially depublished); Mario W. v. Kaipio, 228 Ariz. 207, 265 P.3d 389 (App.2011).Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the col......
-
Mario W. v. Kaipio
...a probable cause determination has been made does not violate the Fourth Amendment. Mario W. v. Kaipio, 228 Ariz. 207, 210 ¶ 1, 265 P.3d 389, 392 (App.2011). The majority reasoned that a judicial finding of probable cause is a “watershed event” that reduced these juveniles' expectations of ......