State of Wash. v. GARCIA-SALGADO

• Decision Date: 07 October 2010
• Docket Number: No. 83156-4.,83156-4.
• Citation: 240 P.3d 153
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Alejandro GARCIA-SALGADO, Petitioner.

240 P.3d 153

STATE of Washington, Respondent,

v.Alejandro GARCIA-SALGADO, Petitioner.

No. 83156-4.

Supreme Court of Washington,En Banc.

Argued June 24, 2010.

Decided Oct. 7, 2010.

Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Petitioner.

James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondent.

FAIRHURST, J.

¶ 1 Alejandro Garcia-Salgado challenges his conviction for first degree rape of a child. He argues the State violated the Fourth Amendment to the United States Constitution and article I, section 7 of the state constitution when it procured his deoxyribonucleic acid (DNA) by cheek swab pursuant to a court order. Specifically, Garcia-Salgado asserts that the seizure was unlawful because it was made without a warrant and without probable cause based on oath or affirmation. The State contends there is sufficient evidence in the record to support a finding of probable cause and the order met the requirements of the Fourth Amendment and article I, section 7 because it was entered by a court pursuant to CrR 4.7(b)(2)(vi) after a contested hearing.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 In November 2006, Garcia-Salgado was visiting his friend Pablo Cruz-Guzman at the home of Cruz-Guzman's mother-in-law, Joylene Simmons. Also in the home were Simmons' children, including 11 year old P.H. Cruz-Guzman and Garcia-Salgado spent the evening drinking beer in the garage. At some point, Garcia-Salgado asked Cruz-Guzman to drive him home. Cruz-Guzman wanted to go to the store first, and told Garcia-Salgado to go sleep in the living room. Garcia-Salgado went inside to the living room while Cruz-Guzman and some others went to the store to get more beer.

¶ 3 While Cruz-Guzman and the others were away, Garcia-Salgado entered the room in which P.H. was sleeping. According to P.H., Garcia-Salgado climbed into her bed, removed her pajama pants, laid on top of her “going up and down,” and that she felt the part of his body “between his legs” against her “private spot.” Report of Proceedings (RP) (Sept. 25, 2007) at 60-62. Afraid, P.H. remained silent throughout the ordeal. After Garcia-Salgado left the room, P.H. told others in the house what had happened. Word quickly reached P.H.'s mother, who called the police.

¶ 4 Auburn Police Officer Theodus Millan responded to the call. He arrived at the house in time to see Cruz-Guzman and the others return from the store. While waiting for another officer to arrive, Millan observed Garcia-Salgado attempting to escape through the garage window. However, Cruz-Guzman and another family member apprehended and restrained Garcia-Salgado until Millan could arrest him. At the Auburn jail, an inventory search of Garcia-Salgado revealed that he had cocaine in his wallet. P.H. was taken to the hospital where a rape kit was used during an examination of P.H.

¶ 5 After waiving his Miranda ¹ rights, Garcia-Salgado stated through an interpreter that he “woke up” in P.H.'s bed and had kissed P.H. He denied that he was undressed or that he had sex with P.H.

¶ 6 Garcia-Salgado was charged with first degree rape of a child. ² After Garcia-Salgado was charged, but prior to trial, the State sought a sample of Garcia-Salgado's DNA pursuant to CrR 4.7(b)(2)(vi). At the CrR 4.7 hearing, Garcia-Salgado objected to giving a sample of his DNA on privacy grounds and argued that because the doctor who treated P.H. found no indication of penetration, the DNA request was nothing more than a “fishing expedition.” RP (Mar. 27, 2007) at 3. The court inquired into whether DNA other than the victim's had been discovered in the rape kit. Counsel for the State responded, “Your Honor, the way it works is: the lab does a presumptive test, and then, based on the results of the presumptive test, determines whether or not it's appropriate to take the next step, the most expensive step, of doing a DNA test.” Id. at 4-5. She continued, “I believe the presumptive tests were done, and there was something on them; I couldn't say exactly what at this point in time.” ³ Id. at 5.

¶ 7 Pursuant to CrR 4.7(b)(2)(vi), the trial court ordered Garcia-Salgado to submit to cheek swabs. The one page order reads:

The above-entitled Court, having heard a motion regarding taking of DNA sample of defendant.

IT IS HEREBY ORDERED that a DNA sample of defendant's DNA shall be taken by oral swab (DNA swab is minimally intrusive, [and] under [CrR] 4.7(b)(2)(vi) it shall be taken) [and] defendant must cooperate.

Clerk's Papers at 6.

¶ 8 The Washington State Patrol Crime Laboratory tested P.H.'s clothing and found evidence of semen on her shirt and underwear.

Specifically, spermatozoa were discovered on the shirt, and a protein found only in seminal fluid was found on the underwear. DNA from the sperm and seminal fluid matched the DNA profile generated from Garcia-Salgado's cheek swab. A jury found Garcia-Salgado guilty of first degree rape of a child, and the trial court sentenced him to 110 months of confinement. Garcia-Salgado appealed his conviction, arguing that the taking of his DNA constituted a warrantless search in violation of the Fourth Amendment and article I, section 7. The Court of Appeals affirmed in a published opinion, concluding that there was sufficient evidence in the record to establish probable cause to search and that CrR 4.7(b)(2)(vi) provided the “authority of law” required by article I, section 7 of the state constitution. State v. Garcia-Salgado, 149 Wash.App. 702, 706-07, 205 P.3d 914 (2009). The Court of Appeals relied on the prosecuting attorney's statement that genetic material had been discovered in the rape kit. Id. at 705-06, 205 P.3d 914. We granted Garcia-Salgado's petition for review on September 9, 2009. State v. Garcia-Salgado, 166 Wash.2d 1033, 217 P.3d 782 (2009). In a letter dated December 16, 2009, the State informed Garcia-Salgado that testing of the rape kit did not occur until after Garcia-Salgado's DNA had been taken.

II. ISSUE

¶ 9 Did the State violate the Fourth Amendment or article I, section 7 when it procured a sample of Garcia-Salgado's DNA pursuant to a court order?

III. ANALYSIS

¶ 10 By court rule, a trial court may order a criminal defendant to permit the State to take samples from the defendant's body. CrR 4.7(b)(2)(vi). However, the court's power is explicitly “subject to constitutional limitations.” CrR 4.7(b)(2). Garcia-Salgado asserts that the cheek swab in this case violated the Fourth Amendment and article I, section 7 because the court's order that he submit to the cheek swab was made without probable cause and without a warrant.

¶ 11 “Generally, a trial court's decisions regarding discovery under CrR 4.7 will not be disturbed absent manifest abuse of discretion.” State v. Gregory, 158 Wash.2d 759, 822, 147 P.3d 1201 (2006) (citing State v. Yates, 111 Wash.2d 793, 797, 765 P.2d 291 (1988)). However, “while the determination of historical facts relevant to the establishment of probable cause is subject to the abuse of discretion standard, the legal determination of whether qualifying information as a whole amounts to probable cause is subject to de novo review.” Id. (citing In re Det. of Petersen v. State, 145 Wash.2d 789, 799-801, 42 P.3d 952 (2002)).

¶ 12 The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Similarly, article I, section 7 provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” While the protections guaranteed by the Fourth Amendment and article I, section 7 are qualitatively different, the provisions protect similar interests. State v. Eisfeldt, 163 Wash.2d 628, 634, 185 P.3d 580 (2008). In some cases, article I, section 7 may provide greater protection than the Fourth Amendment; however, article I, section 7 “necessarily encompasses those legitimate expectations of privacy protected by the Fourth Amendment.” State v. Parker, 139 Wash.2d 486, 493-94, 987 P.2d 73 (1999).

¶ 13 Generally, warrantless searches are per se unreasonable under both the Fourth Amendment and article I, section 7. State v. Garvin, 166 Wash.2d 242, 249, 207 P.3d 1266 (2009) (citing State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002)). There are limited exceptions to the warrant requirement, and the State bears the burden of establishing that one of these narrowly drawn exceptions applies. Id. at 249-50, 207 P.3d 1266.

¶ 14 Swabbing a cheek to procure a DNA sample constitutes a search under the Fourth Amendment and article I, section 7. The United States Supreme Court has recognized “that a ‘compelled intrusio[n] into the body for blood to be analyzed for alcohol content’ ” is a search. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (alteration in original) (quoting Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). Similarly, the Court found Breathalyzer tests to “implicate[ ] similar concerns about bodily integrity” and constitute searches as well. Id. at 617, 109 S.Ct. 1402. We find that the swabbing of a person's cheek for the purposes of collecting DNA evidence is a similar intrusion into the body and constitutes a search for the purposes of the Fourth Amendment and article I, section 7.

¶ 15 Because a cheek swab to procure a DNA sample is a search, the search must be supported by a warrant unless the search meets one of the “ ‘jealously and carefully drawn’ ” exceptions to the warrant requirement. State v. Winterstein, 167 Wash.2d 620, 628, 220 P.3d 1226 (2009) (internal quotations omitted) (quoting State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996)); Schmerber, 384 U.S. at 770, 86 S.Ct. 1826 (“Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into...