State v. H. K. D. S. (In re H. K. D. S.)

• Decision Date: 01 July 2020
• Docket Number: A163158
• Citation: 469 P.3d 770,305 Or.App. 86
• Parties: In the MATTER OF H. K. D. S., a Youth. State of Oregon, Respondent, v. H. K. D. S., Appellant.
• Court: Oregon Court of Appeals

305 Or.App. 86

469 P.3d 770

In the MATTER OF H. K. D. S., a Youth.

State of Oregon, Respondent,

v.H. K. D. S., Appellant.

A163158

Court of Appeals of Oregon, En Banc.

Argued and submitted August 17, 2018

Resubmitted en banc January 15, 2020

July 1, 2020

Christa Obold Eshleman argued the cause and filed the briefs for appellant.

Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.

LAGESEN, J.

Does Article I, section 9, of the Oregon Constitution permit law enforcement officers investigating a crime to obtain a DNA sample from a juvenile suspect without a warrant if the child's parents consent to the search but the child does not? If it does, does the Fourth Amendment to the United States Constitution do the same? We took this case into full court to consider those important questions. We conclude that parental consent is not an exception to Article I, section 9 ’s otherwise-applicable warrant requirement for the search of a person for DNA evidence in the course of a criminal investigation. As we will explain, that answer disposes of this appeal and requires us to reverse. We therefore do not reach the Fourth Amendment question.

This is a delinquency proceeding. Youth, age 12, was found to be within the juvenile court's delinquency jurisdiction for acts that if committed by an adult would constitute first-degree sexual abuse, ORS 163.427. That finding was based, in part, on evidence that seminal fluid containing DNA matching youth's was found on underwear belonging to youth's four-year-old stepsister. Officers made the DNA match after obtaining a buccal swab from youth. Youth complied with the buccal swab after the officer described the process to him and his mother told him that it was "okay."

Officers did not obtain a warrant for the buccal swab from youth. Instead, they asked youth's mother and father each to sign written consent forms, which each parent did. Both parents signed forms provided by the Carlton Police Department. Those forms authorized the collection of "biological evidence samples" from youth. The forms required each parent to certify that "I further understand that these samples may be used in a court of law during a criminal procedure/prosecution and may be used as evidence against [youth]."

Because youth and youth's mother were living in Alaska at the time of the swab, the Anchorage Police Department collected the swab on behalf of the Carlton Police Department. The Alaska officers requested that mother also sign the Anchorage Police Department's consent form, and mother did. On that form—which did not fully track the situation at hand—mother acknowledged that, "having been informed of my Constitutional Rights not to have a search made of my * * * person, without a search warrant," she was authorizing police "to conduct a complete search of [youth]." Mother further acknowledged that she was authorizing officers to take "from my * * * person any evidence or property needed for the criminal investigation of [unspecified crime] which was reported on 12/22/15."

Before the adjudicatory hearing, youth moved to suppress the DNA evidence obtained through the buccal swab. He argued that the collection of the DNA was both an unconstitutional search and seizure under Article I, section 9, and the Fourth Amendment because officers did not obtain a warrant and, in youth's view, no exception to the warrant requirement applied. In particular, youth contended that he had not himself consented to the search for purposes of the consent exception to the warrant requirement and, further, that the consent of third parties—in this case, his parents—cannot authorize officers to search someone's person in the context of a criminal investigation. The state argued in response that both youth and his parents had validly consented to the search.

The juvenile court denied youth's motion to suppress. Recognizing that the buccal swab was a search of youth, the court concluded that youth validly consented to that search, obviating the need for officers to obtain a warrant. Following the adjudicatory hearing, the court found that youth had committed two acts which, if committed by an adult, would constitute first-degree sexual abuse. In its ruling, the court noted that the evidence connecting youth to the victim's underwear played a pivotal role in its findings. Youth appealed.

On appeal, youth assigns error to the denial of his motion to suppress. He contends that the juvenile court erred in determining that he had voluntarily consented to the buccal swab. He argues further that his parents’ consent to the buccal swab, in the absence of his own voluntary consent, did not excuse officers from obtaining the warrant otherwise required by Article I, section 9, and the Fourth Amendment for the search of his person that occurred when officers swabbed his mouth for DNA. In response, the state, taking a different approach than it did before the juvenile court, does not contend that youth himself voluntarily consented to the buccal swab. The state, instead, contends that youth's mother's consent to the search authorized officers to obtain youth's DNA without a warrant under both Article I, section 9, and the Fourth Amendment.

Following briefing and oral argument, we took this appeal into full court to consider the question presented by the parties’ arguments:

When a child is a suspect in a criminal investigation, does Article I, section 9, or the Fourth Amendment allow for law enforcement to obtain a DNA sample from the child without first obtaining a warrant or the child's voluntary consent where a parent consents to the taking of the sample? We did so because it is a question of first impression, one that asks us to recognize a new exception to the warrant requirements of Article I, section 9, and the Fourth Amendment, and one for which the answer could have far-reaching consequences for the constitutional rights of Oregon children. For the reasons that follow, we conclude that, for purposes of Article I, section 9, parental consent is not an exception to the warrant requirement that permits law enforcement to search the person of a child suspected of a crime for DNA without obtaining a warrant. The juvenile court therefore erred in concluding that the collection of youth's DNA did not violate his rights under Article I, section 9, and in denying his motion to suppress the DNA evidence from the swab. Accordingly, we reverse and remand.

We review the juvenile court's denial of youth's motion to suppress for legal error. State v. Bliss , 363 Or. 426, 428, 423 P.3d 53 (2018). In so doing, "we are bound by the [juvenile] court's findings of historical facts if there is evidence in the record to support them." Id .

Under our well-established "first things first" approach to constitutional claims, see State v. Babson , 355 Or. 383, 432-33, 326 P.3d 559 (2014), we begin with the Article I, section 9, question, starting with a brief refresher on the basics.

Article I, section 9, gives us the right "to be secure in [our] persons, houses, papers, and effects, against unreasonable search, or seizure." It "generally requires law enforcement officers to obtain a warrant before executing a search." Bliss , 363 Or. at 430, 423 P.3d 53. That is, "warrantless searches are per se unreasonable unless they fall within one of the few specifically established and limited exceptions to the warrant requirement." Id . at 430-31, 423 P.3d 53. It is on the state, not a defendant, to demonstrate that a warrantless search is permitted by one of the recognized exceptions to the warrant requirement: "The state has the burden of proving that circumstances existing at the time [of the search] were sufficient to satisfy any exception to the warrant requirement." State v. Baker , 350 Or. 641, 647, 260 P.3d 476 (2011).

When officers take a buccal swab, they conduct a "search" within the meaning of Article I, section 9. State v. Sanders , 343 Or. 35, 39, 163 P.3d 607 (2007). Therefore, because the officers in this case did not obtain a warrant for youth's buccal swab, the swab amounted to a "per se unreasonable" search under Article I, section 9, unless the state proved circumstances showing that the swab fell "within one of the few specifically established and limited exceptions to the warrant requirement." Bliss , 363 Or. at 430-31, 423 P.3d 53. Did the state do that here?

In the juvenile court's view, it did. The court thought that the consent exception allowed for the search of youth. That exception, in its most familiar form, allows law enforcement to search a person or the person's property if the person voluntarily consents to the search. See State v. Blair , 361 Or. 527, 535-36, 396 P.3d 908 (2017). The state argued below, and the court agreed, that youth himself had voluntarily consented to the buccal swab. On appeal, however, the state has not renewed that argument, and we agree with the state's tacit concession that the search cannot be justified on the ground that youth voluntarily consented to it. That is because a "defendant's ‘mere acquiescence’ to police authority does not constitute voluntary consent." State v. Stanley , 287 Or. App. 399, 407, 404 P.3d 1100 (2017).

"Acquiescence occurs when an individual is not given a reasonable opportunity to choose to consent or when he or she is informed that a search will occur regardless of whether consent is given." Id . (internal quotation marks and brackets omitted). "In determining whether a particular interaction between police and a defendant amounts to consent, courts pay close attention to the words used by the officer requesting consent." Id. "When those words do not provide the listener with a reasonable opportunity to choose to consent, or...