People v. Shreck, 02CA1413.

Decision Date23 September 2004
Docket NumberNo. 02CA1413.,02CA1413.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael SHRECK, Defendant-Appellant.
CourtColorado Court of Appeals

Ken Salazar, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

C. Keith Pope, Boulder, Colorado; Nancy Holton, Boulder, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Michael Shreck, appeals the judgments of conviction entered upon jury verdicts finding him guilty of one count of second degree kidnapping and two counts of sexual assault. He also appeals his habitual offender adjudication. We affirm.

In 1990, a man knocked a young woman off her bike, tried to force her into the trunk of his car, and then took her to some nearby trees, where he sexually assaulted her both orally and vaginally at knifepoint. Although a sample of the perpetrator's semen was subsequently recovered in a rape kit examination of the victim, that sample was not subjected to deoxyribonucleic acid (DNA) testing until 1998. The testing resulted in a DNA match between the recovered semen sample and a sample of defendant's blood drawn in 1991 while he was in the custody of the Department of Corrections (DOC). Thereafter, the victim identified defendant as her assailant from a picture in a photo array and again at trial.

I. DOC Collection of Defendant's DNA Sample

Defendant contends that the trial court erred in not suppressing the DNA sample collected by the DOC in 1991 and evidence derived therefrom. We disagree. Defendant had been incarcerated in the DOC and then paroled in connection with convictions for burglary, robbery, and theft. His parole was revoked in 1991 after he was convicted in Minnesota of escape, robbery, unlawful possession of a firearm, and theft. Upon his return to the DOC, corrections officials drew a sample of his blood for analysis and use in a sex offender DNA database; they did so, based on (1) his admission that he had also been charged in Minnesota with a sexual offense involving a fifteen-year-old girl, and (2) information from his parole officer suggesting that the sexual offense had not been pursued because of the plea bargain reached with the Minnesota authorities.

Section 16-11-102.3(1.5) and (6), C.R.S.2003, currently require that every felon sentenced to the DOC submit to the collection and chemical testing of a biological substance sample, for purposes of determining the felon's genetic markers and including them in a database maintained by the Colorado Bureau of Investigation. When the DOC collected defendant's sample in 1991, however, only offenders "convicted of an offense for which the factual basis involved a sexual assault" were required to submit to such testing, "[a]s a condition of parole." Colo. Sess. Laws 1988, ch. 121, § 17-2-201(5)(g)(I) at 701 (currently codified, with minor amendments, at § 17-2-201(5)(g)(I), C.R.S.2003).

Despite his admission to the contrary, defendant was never actually charged, much less convicted, of a sexual offense. Because defendant had not been convicted of an offense for which the factual basis involved a sexual assault, the trial court found that the statute was inapplicable. Nonetheless, the court determined that suppression was not warranted because the DOC officials had acted in good faith in drawing defendant's blood for use in a sex offender DNA database.

Defendant asserts that suppression is required because the DNA sample was obtained in violation of federal and state constitutional guarantees against unreasonable searches and § 17-2-201(5)(g)(I).

A. Constitutional Issues

We reject defendant's assertion that the state could not collect and test a sample of his blood, consistent with constitutional search and seizure guarantees, in the absence of either a warrant supported by probable cause or individualized suspicion of wrongdoing.

Initially, we note that defendant made no argument either before the trial court or in this court as to why the state constitution should be applied any differently in this context than the federal constitution. We also note that the trial court did not, in its ruling, explicitly address any issues of state constitutional law. Under these circumstances, we presume the trial court applied federal law, and consequently, we resolve this issue solely on the basis of applicable federal constitutional standards. See People v. Mershon, 874 P.2d 1025, 1030 n. 2 (Colo.1994).

The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. A warrantless search or seizure is presumptively invalid unless justified by one of the established exceptions to the warrant requirement. People v. Allison, 86 P.3d 421, 426 (Colo.2004). One such exception is the "special needs exception." Timm v. Reitz, 39 P.3d 1252, 1256 (Colo.App.2001). Under that exception, neither a warrant, nor probable cause, nor even individualized suspicion of wrongdoing need be shown where "special needs, beyond the normal need for law enforcement" exist, and the search or seizure is found to be "reasonable" after balancing the government's special need against the individual's asserted privacy interests. See Ferguson v. City of Charleston, 532 U.S. 67, 74 n. 7, 121 S.Ct. 1281, 1286, 149 L.Ed.2d 205 (2001). Such a qualifying governmental need must be "important," "substantial," or "compelling" in nature before it may be considered special. Timm v. Reitz, supra, 39 P.3d at 1256.

We review de novo whether a search or seizure satisfies the requirements of the Fourth Amendment. See People v. Matheny, 46 P.3d 453, 461 (Colo.2002).

Statutes requiring the collection of blood samples for DNA identification purposes from persons convicted of crimes have been enacted by the federal government and all fifty states. Green v. Berge, 354 F.3d 675, 676 (7th Cir.2004); see 3 W. LaFave, Search and Seizure § 5.4(c), at n. 51.1 (3d ed. Supp. 2004). In some jurisdictions, the statutes require blood to be drawn from all convicted felons. See Green v. Berge, supra (analyzing Wisconsin statute); Jones v. Murray, 962 F.2d 302, 305-06 (4th Cir.1992)(analyzing Virginia statute). Here, defendant's blood was drawn from him while he was a prisoner in the DOC, as part of an effort to create a sex offender DNA database.

Every federal and state appellate court which has considered the issue has upheld against Fourth Amendment attack the collection of blood samples from convicts for use in assembling a DNA database. See United States v. Kincade, 379 F.3d 813, 830-31 (9th Cir.2004)(collecting cases).

The United States Supreme Court has applied the "special needs" rationale in the law enforcement context. See Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987)("A State's operation of a probation system ... presents special needs beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements."; upholding warrantless search of probationers residence).

DNA databases serve a number of special needs beyond the normal need for law enforcement officials to secure evidence of a particular wrongdoing against a specific suspect. See Green v. Berge, supra, 354 F.3d at 676; United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003); Roe v. Marcotte, 193 F.3d 72, 79 (2d Cir.1999); Vore v. United States Dep't of Justice, 281 F.Supp.2d 1129, 1137 (D.Ariz.2003); United States v. Sczubelek, 255 F.Supp.2d 315, 319 (D.Del.2003); State v. Martinez, 276 Kan. 527, 78 P.3d 769, 775 (2003); State v. Steele, 155 Ohio App.3d 659, 802 N.E.2d 1127, 1137 (2003); In re D.L.C., 124 S.W.3d 354, 373 (Tex.App.2003); State v. Surge, 94 P.3d 345, 349-50 (Wash.Ct.App.2004).

These authorities (collectively, the Green-Surge cases) recognize that, because DNA samples are analogous to fingerprints or palm prints, they can be used as generic identification tools. By enhancing the accuracy of the criminal justice system, DNA databases assist in exonerating the innocent, solving past as well as future crimes, and deterring recidivism.

In United States v. Kincade, supra, 379 F.3d at 838-39, the court recognized that these and other interests (namely, bringing closure to countless victims of past crime and sheltering society from future victimization) served by DNA databases are "undeniably compelling," even "monumental" in weight.

Compared to the normal citizen on the street, a prisoner has a substantially reduced expectation of privacy. See Bell v. Wolfish, 441 U.S. 520, 537, 559-60, 99 S.Ct. 1861, 1873, 1885, 60 L.Ed.2d 447 (1979)(noting that [l]oss of freedom of choice and privacy are inherent incidents of confinement and upholding suspicionless visual inspection of body cavity following contact with visitor to institution); People v. Lee, 93 P.3d 544, 547 (Colo.App.2003)(cert. granted on other grounds July 19, 2004) ("Prisoners have little, if any, reasonable expectation of privacy while incarcerated."); see also Green v. Berge, supra, 354 F.3d at 679-80 (Easterbrook, J., concurring) ("Testing prisoners' blood, urine, saliva, or hair for drugs is routine and does not require individual suspicion.... Prisons, moreover, have a constitutional duty to attend to inmates' medical needs, and the discharge of this duty requires them to learn details about the inmates' medical conditions. That will entail the drawing of blood....").

When balanced against a prisoners greatly reduced expectation of privacy and the minimally intrusive nature of a blood draw, the significant governmental interests identified above have been found sufficient to justify suspicionless collection and testing of DNA samples from prisoners. See Green-Surge cases, supra; see also United States v. Kincade, supra, 379 F.3d at 840-41 (Gould, J., concurring); cf. United...

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