State v. Maass

Decision Date07 March 2003
Docket NumberNo. 87,918,87,918
Citation64 P.3d 382,275 Kan. 328
PartiesSTATE OF KANSAS, Appellee, v. JAMES E. MAASS, Appellant.
CourtKansas Supreme Court

Mary Curtis, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with her on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by


James Maass appeals from the district court's order requiring that specimens of his blood and saliva be submitted to the Kansas Bureau of Investigation (KBI). Maass contends the court lacked statutory authority to enter the order or, in the alternative, that the application of K.S.A. 2001 Supp. 21-2511 in his case is unconstitutional. Upon motion, this appeal has been transferred from the Court of Appeals to the Supreme Court. See K.S.A. 20-3018(c).

We affirm. We hold: (1) K.S.A. 2001 Supp. 21-2511 does not constitute an unreasonable infringement upon the defendant's right of privacy or constitutional protection from an unreasonable search and seizure; (2) K.S.A. 2001 Supp. 21-2511 does require Maass to provide blood and saliva specimens; and (3) the district court's order requiring blood and saliva specimens does not infringe upon Maass' right of privacy or constitute an unreasonable search and seizure.

Maass committed a nonresidential burglary and theft on June 8, 2001, and was convicted on August 16, 2001. K.S.A. 2001 Supp. 21-2511(a) provides, in material part, that any person convicted of a nonresidential burglary shall be required to submit specimens of blood and saliva to the KBI. Prior to the legislature's 2001 amendment, K.S.A. 21-2511(a) was more discrete, directed at persons who committed certain enumerated crimes, primarily murder and sex offenses. Parenthetically, the statute was amended again in 2002 and now includes all felonies. See K.S.A. 2002 Supp. 21-2511(a). At sentencing, Maass objected to providing the KBI with specimens of his blood and saliva, contending K.S.A. 2001 Supp. 21-2511 could only be given prospective application, applying to crimes occurring on or after July 1, 2001. The district judge overruled Maass' objection, stating: "I'm taking the position that there is a retroactive application, or that it applies to sentencings that take place after July 1st of 2001, notwithstanding the fact that the offense may have occurred prior to that date." The court ordered Maass to provide specimens to the KBI.

Maass' claim requires interpretation of K.S.A. 2001 Supp. 21-2511(a), which states:

"(a) Any person convicted as an adult or adjudicated as a juvenile offender because of the commission of any offense which requires such person to register as an offender pursuant to the Kansas offender registration act, K.S.A. 22-4901 et seq., any off-grid felony, any nondrug severity level 1 through 6 felony, or a violation of subsection (a)(1) of K.S.A. 21-3505, 21-3508, 21-3602, 21-3715, 21-4310, subsections (e)(2), (e)(3) and (e)(4) of K.S.A. 65-4142 or K.S.A. 65-4159, and amendments thereto, including an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of any such offenses provided in this subsection regardless of the sentence imposed, shall be required to submit specimens of blood and saliva to the Kansas bureau of investigation in accordance with the provisions of this act, if such person is:
(1) Convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in subsection (a) on or after the effective date of this act;
(2) ordered institutionalized as a result of being convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in subsection (a) on or after the effective date of this act; or
(3) convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in this subsection before the effective date of this act and is presently confined as a result of such conviction or adjudication in any state correctional facility or county jail or is presently serving a sentence under K.S.A. 21-4603, 22-3717 or 38-1663, and amendments thereto."

Interpretation of a statute is a question of law, and an appellate court's review is unlimited. An appellate court is not bound by the district court's interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). When a statute is plain and unambiguous, the court's duty is to respect the intention of the legislature as expressed. State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001).

Under our stated canons of review, we need not go beyond the plain and unambiguous language of the statute. Under K.S.A. 2001 Supp. 21-2511(a)(1), it is the date of conviction that controls, not the date the crime was committed. Thus, Maass' first argument to support his claim of error by the district court must fail.

We note Maass' tangential claim that the collection, analysis, and storage of blood and saliva samples under K.S.A. 2001 Supp. 21-2511 constitutes a penalty and cannot be applied retroactively to a crime committed before the statute was amended. We have no quarrel with the proposition that the criminal penalty to be applied must be as it stood on the date the crime was committed. See State v. Patterson, 25 Kan. App. 2d 245, 252-53, 963 P.2d 436, rev. denied 265 Kan. 888 (1998). However, the provisions of K.S.A. 2001 Supp. 21-2511 do not constitute a penalty but are intended to assist law enforcement agencies in the identification and detection of crimes and offenders. State action in furtherance of achieving those goals is not a penalty or punishment.

For the foregoing reasons, we conclude that although the district court erred in concluding K.S.A. 2001 Supp. 21-2511 should be applied retroactively, the court came to the correct conclusion that Maass should be ordered to provide specimens. See Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999).

Maass raises for the first time on appeal a claim that, as applied to him, K.S.A. 2001 Supp. 21-2511 is unconstitutional, violating his right of privacy and subjecting his person to an unreasonable search and seizure. Ordinarily, an issue not presented to the district court will not be considered on appeal. State v. Mincey, 265 Kan. 257, 266-67, 963 P.2d 403 (1998). However, an appellate court may decide to consider such an issue when arising on admitted facts and where resolution of the issue will serve the ends of justice. 265 Kan. at 267. We conclude Maass' claim comes within this recognized exception and should be considered on its merits.

The constitutionality of K.S.A. 21-2511 prior to the 2001 amendment was upheld in Schlicher v. Peters, 103 F.3d 940, 943 (10th Cir. 1996). In Schlicher, the court relied upon the holdings in Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), Jones v. Murray, 962 F.2d 302 (4th Cir.), cert. denied 506 U.S. 977 (1992), and Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), cert. denied 517 U.S. 1160 (1996). In Boling, the court noted:

"In Jones, the Fourth Circuit rejected a Fourth Amendment challenge to a Virginia statute requiring all convicted felons to submit blood samples for DNA analysis and inclusion in a data bank for future law enforcement purposes. In reaching that conclusion, the court determined there is no `per se Fourth Amendment requirement of probable cause, or even a lesser degree of individualized suspicion, when government officials conduct a limited search for the purpose of ascertaining and recording the identity of a person who is lawfully confined to prison.' [Citation omitted.] The [Jones] court relied in part on an inmate's diminished expectation of privacy in the prison setting.
"`[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes. This becomes readily apparent when we consider the universal approbation of "booking" procedures that are followed for every suspect arrested for a felony, whether or not the proof of a particular suspect's crime will involve the use of fingerprint identification. Thus a tax evader is fingerprinted just the same as is a burglar. While we do not accept even this small level of intrusion for free persons without Fourth Amendment constraint, see Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969), the same protections do not hold true for those lawfully confined to the custody of the state. As with fingerprinting, therefore, we find that the Fourth Amendment does not require an additional finding of individualized suspicion before blood can be taken from incarcerated felons for the purpose of identifying them.' [Citation omitted.]" 101 F.3d at 1339.

The Jones court held, after balancing the minimal intrusion caused by the blood sampling against the government's interest in making a permanent identification record of convicted felons for the purpose of resolving future crimes, DNA sampling was a reasonable search within the meaning of the Fourth Amendment to the United States Constitution. 962 F.2d at 307.

The Boling court also noted the Ninth Circuit Court of Appeal's decision in Rise in which it equated "everyday `booking' procedure" and DNA sampling. 101 F.3d at 1340.

"The Ninth Circuit first examined the plaintiffs' separate interests in the privacy of the DNA information and their interest in bodily integrity. [Citation omitted.] The Rise court noted that `[t]he information

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