Mario W. v. Kaipio

• Decision Date: 27 June 2012
• Docket Number: No. CV–11–0344–PR.,CV–11–0344–PR.
• Citation: 637 Ariz. Adv. Rep. 22,230 Ariz. 122,281 P.3d 476
• 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 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.
• Court: Arizona Supreme Court

230 Ariz. 122

281 P.3d 476

637 Ariz. Adv. Rep. 22

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, RespondentCommissioner,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, RespondentCommissioner,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, RespondentCommissioner,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, RespondentJudge,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, RespondentJudge,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, RespondentCommissioner,State of Arizona, Real Party in Interest.

Eric R., Petitioner,

v.The Honorable Thomas Kaipio, Commissioner of The Superior Court of The State Of Arizona, in and for the County of Maricopa, RespondentCommissioner,State of Arizona, Real Party In Interest.

No. CV–11–0344–PR.

Supreme Court of Arizona.

June 27, 2012.

Held Unconstitutional

A.R.S. § 8–238

Christina Phillis, Maricopa County Public Advocate ByDavid Katz, Deputy Public Advocate, Aaron Jason Max, Deputy Public Advocate, Colleen Engineer, Deputy Public Advocate, Devra N. Ellexson, Deputy Public Advocate, Suzanne Sanchez, Deputy Public Advocate, Andrew Meissen, Deputy Public Advocate, Mesa, Attorneys for Mario W., Bradley W., Alexis A. Bailey J., Devon C., Eric R., and Noble B.

William G. Montgomery, Maricopa County Attorney ByLinda Van Brakel, Deputy County Attorney, Phoenix, Attorneys for State of Arizona.

Arizona Attorneys for Criminal Justice By David J. Euchner, Julie M. Levitt–Guren, Chandler, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.

OPINION

HURWITZ, Vice Chief Justice.

¶ 1 Arizona law requires juveniles charged with certain offenses and summoned to appear at an advisory hearing to submit to the investigating law enforcement agency “a sufficient sample of buccal cells or other bodily substances for deoxyribonucleic acid [DNA] testing and extraction.”A.R.S. § 8–238(A).The penalty for failure to comply is revocation of release pending adjudication.§ 8–238(B).In this casewe consider whether the statutory scheme violates the Fourth Amendment prohibition against unreasonable searches and seizures.

I.

¶ 2 Seven juveniles (collectively, the “Juveniles”) were separately charged with violations of offenses specified in § 8–238(A).Each was summoned to an advisory hearing, released, and ordered to submit a buccal sample to law enforcement within five days.In each case, the superior court rejected Fourth Amendment objections to the sampling order.

¶ 3 The Juveniles then jointly filed a special action in the court of appeals.That court accepted jurisdiction and a divided panel held that requiring the submission of DNA samples from five juveniles for whom 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 privacy, id. at 214–15 ¶ 22, 265 P.3d at 396–97, and that the State's “interest in identifying these juveniles outweighs their right to privacy,”id. at 217 ¶ 30, 265 P.3d at 399.¹A different 2–1 majority, however, held that the Fourth Amendment forbids the DNA sampling of the two juveniles for whom no probable cause determination has yet been made.Id. at 210 ¶ 2, 265 P.3d at 392.²

¶ 4The State and two of the Juveniles petitioned for review.We granted both petitions to address a recurring legal issue of statewide importance.We exercise jurisdiction pursuant to Article 6, Section 5(3) of the Arizona ConstitutionandA.R.S. § 12–120.24(2003).

II.

¶ 5 After a buccal sample is obtained under A.R.S. § 8–238(A), the investigating law enforcement agency transmits it to the Department of Public Safety(“DPS”), where it is analyzed and a DNA profile produced.§§ 8–238(C),8–238(D),13–610(H)(1), (2).The profile is entered into an Arizona DNA identification system, see§ 41–2418(establishing state system), and a national database, the Combined DNA Index System (CODIS), see42 U.S.C. § 14132(a)(establishing national database).See generallyHaskell v. Harris,669 F.3d 1049, 1051–52(9th Cir.2012)(discussing interface of California database and CODIS).The sample and profile may then be used, inter alia,“[f]or law enforcement identification purposes.”A.R.S. § 13–610(I)(1).³A juvenile not ultimately found delinquent “may petition the superior court” to expunge the profile and sample from the Arizona system.A.R.S. § 13–610(M);see also42 U.S.C. § 14132(d)(2)(providing for expungement from CODIS);A.R.S. § 13–610(J)(providing for expungement when an adjudication is overturned on appeal or in a postconviction relief proceeding).

III.

A.

¶ 6 Before addressing the constitutional claims raised by the Juveniles, it is appropriate to begin by noting what is not at issue in this case.

¶ 7 First, the parties agree that DNA sampling involves a search or seizure governed by the Fourth Amendment.

¶ 8 Second, it is common ground that none of the Juveniles had been adjudicated delinquentfor the charged crimes when ordered to submit a buccal cell sample.If such an adjudication is made, a statute not at issue today, A.R.S. § 13–610(O)(2), governs DNA sampling and profiling.Neither the State nor the Juveniles contest that post-adjudication sampling and profiling are constitutional.See In re Leopoldo L., 209 Ariz. 249, 250 ¶ 1, 99 P.3d 578, 579(App.2004)(finding post-adjudication sampling and profiling constitutional);accordIn re Lakisha M.,227 Ill.2d 259, 317 Ill.Dec. 690, 882 N.E.2d 570, 582(2008);Petitioner F v. Brown,306 S.W.3d 80, 93(Ky.2010);see alsoWilson v. Collins,517 F.3d 421, 423(6th Cir.2008)(upholding DNA profiling of convicted felons);United States v. Amerson,483 F.3d 73, 89(2d Cir.2007)(upholding DNA profiling of probationers);United States v. Kincade,379 F.3d 813, 839(9th Cir.2004)(upholding DNA profiling of conditional releasees).

¶ 9 Third, the State does not claim probable cause that a DNA profile will provide evidence that any of these juveniles committed the charged offenses.Nor does the State even reasonably suspect that a juvenile committed another offense for which the DNA profile might provide investigative assistance.Cf.Hayes v. Florida,470 U.S. 811, 817, 105 S.Ct. 1643, 84 L.Ed.2d 705(1985)(“[T]he Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with that crime, and if the procedure is carried out with dispatch.”);A.R.S. § 13–3905(permitting temporary detention for investigative fingerprinting upon judicial order).

¶ 10 Fourth, although § 13–610(I)(1) permits use of the DNA samples and resulting profiles for “law enforcement identification purposes,”the State does not seek a profile simply to identify any juvenile in the normally accepted use of that term.Put differently, the State does not claim that it needs a DNA profile in any of the cases before us to determine who the charged juvenile is.Rather, the State argues that the statutory phrase includes not only authentication of a juvenile's identity, but also use of the profile to investigate whether the juvenile has committed other uncharged crimes.Indeed, given that the DNA profiles are placed both in Arizona and national databases, and are available to law enforcement officers throughout the country for investigative purposes, it is plain that the legislature intended the profile to be used for purposes other than simply confirming the name of the person charged with the current crime.⁴

¶ 11 Finally, the Juveniles do not contest the efficacy of the DNA database systems—both state and national—in solving crimes and providing unique identification information about an individual.But neither does the State claim—nor does any case suggest—that these law enforcement goals would justify DNA sampling and profiling of ordinary citizens.SeeHaskell,669 F.3d at 1058(majority opinion)(assuming unconstitutionality of such a procedure);id. at 1061(noting that the majority and the dissent agreed on the unconstitutionality of such a procedure).

B.

¶ 12We turn then to the issue at hand: May the State, consistent with the Fourth Amendment, compel these Juveniles to submit to DNA extraction and profiling as a condition of release?

¶ 13 The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It has been long established that warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576(1967).Supreme Court jurisprudence also long taught...