State v. Sanders

• Decision Date: 21 June 2007
• Docket Number: CA A122330.,CC 011137484.,SC S53056.
• Citation: 163 P.3d 607,343 Or. 35
• Parties: STATE of Oregon, Respondent on Review, v. Travis Ray SANDERS, Petitioner on Review.
• Court: Oregon Supreme Court

163 P.3d 607

343 Or. 35

STATE of Oregon, Respondent on Review, v. Travis Ray SANDERS, Petitioner on Review.

CC 011137484.

CA A122330.

SC S53056.

Supreme Court of Oregon.

Argued and Submitted September 6, 2006.

Decided June 21, 2007.

On review from the Court of Appeals.^*

Susan F. Drake, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender.

Mary H. Williams, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Janet A. Klapstein, Assistant Attorney General.

Before DE MUNIZ, Chief Justice, and CARSON, GILLETTE, DURHAM, BALMER, and KISTLER, Justices.^**

GILLETTE, J.

This criminal case presents the issue whether a state statute mandating the collection of blood or buccal samples for purposes of DNA profiling from all persons convicted of felonies violates either the state or federal constitutional prohibitions against unreasonable searches and seizures. The Court of Appeals upheld a trial court order requiring the defendant to submit a blood or buccal sample as a condition of his probation. State v. Sanders, 202 Or.App. 672, 126 P.3d 1260 (2005). For the reasons set out below, we affirm the decision of the Court of Appeals.

The operative facts are brief and undisputed. In 2003, after a jury trial, defendant was convicted of the felony offense of fleeing or attempting to elude a police officer in a motor vehicle.¹ Under ORS 137.076, because defendant had been convicted of a felony,² the trial court was required to include in the judgment of conviction an order requiring defendant to submit a blood or buccal sample at the request of either the Department of Corrections or a law enforcement agency.³ If the court were to sentence defendant to probation then the court would be required to include an order to submit the sample as a condition of probation. ORS 137.076(2)(b). Before sentencing, defendant moved to prohibit the seizure of his DNA through a blood or buccal sample under ORS 137.076 on the ground that requiring him to submit to such a procedure would violate his state and federal constitutional rights to be free from unreasonable searches and seizures. The trial court rejected defendant's arguments, sentenced defendant to 18 months' probation on the felony conviction,⁴ and imposed various conditions of probation including, as required under ORS 137.076(2)(b), a direction that defendant provide a blood or buccal sample at the request of the Multnomah County Sheriff or the state Department of Corrections.

Defendant appealed the sentence to the Court of Appeals, assigning error to the trial court's imposition of the condition of probation requiring him to submit a blood or buccal sample. As noted, the Court of Appeals affirmed without opinion.

In this court, defendant reprises his arguments that the requirement in ORS 137.076 that he provide a blood or buccal sample violates his state and federal constitutional rights to be free from unreasonable searches and seizures. He argues that, for purposes of both constitutions, taking a blood or buccal sample is both a search and a seizure. Defendant then contends that that search and seizure is done without a warrant, and without probable cause or even reasonable suspicion, and does not fall within any exception to the warrant requirement under either constitution. Therefore, according to defendant, the search and seizure are unreasonable and unconstitutional.

In analyzing the constitutionality of ORS 137.076, we follow our usual paradigm: We consider state constitutional claims before considering federal constitutional claims. See State v. Cookman, 324 Or. 19, 25, 920 P.2d 1086 (1996) (so stating). Article I, section 9, of the Oregon Constitution provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

Under Article I, section 9, a "search" occurs when a government agent invades an individual's protected privacy interest. State v. Tiner, 340 Or. 551, 562, 135 P.3d 305 (2006). The privacy that is protected under Article I, section 9, is the "privacy to which one has a right." State v. Campbell, 306 Or. 157, 164, 759 P.2d 1040 (1988) (emphasis in original). One ordinarily has a right to privacy that extends to protecting against having a government agent draw one's blood, and this court has stated that "[t]he extraction of a blood sample by the police is both a search of the person and the seizure of an `effect' — the person's blood." State v. Milligan, 304 Or. 659, 664, 748 P.2d 130 (1988). One ordinarily also has a right to privacy that protects against having a government agent swab the inside of one's cheek and then testing the swab to reveal physiological data. Thus, in requiring convicted felons to provide a blood or buccal sample, ORS 137.076 effectively subjects those individuals to what commonly would be understood to be searches and seizures as an additional consequence of their convictions. If the person is sentenced to a term of imprisonment, then the Department of Corrections performs the search and seizure upon incarceration. ORS 137.076(2)(c)(A). If, on the other hand, the person is sentenced to a term of probation, then the statute directs the trial court to order the convicted person to submit to that search and seizure as a condition of the probation. ORS 137.076(2)(b).

In our view, it is the requirement of a felony conviction that is the key here. In most of the cases that we have cited above, the person whose privacy interests were invaded without a warrant had not been convicted. In those cases, the state had no basis for arguing that the person had any lesser privacy right than the general public. On the other hand, the warrant requirement never has been applied to convicted persons who have been placed in state custody as a result of their convictions. That is so, because it is inherent in the very notion of punishment for a felony conviction that an offender's freedom is or may be drastically curtailed. As this court recently stated in Tiner, in rejecting a defendant's challenge to the state's taking photographs of the tattoos on his chest,

"Neither the United States Constitution nor the Oregon Constitution requires a search warrant or its equivalent before the state may take pictures of or inspect defendant's torso because, once defendant became a prisoner, he enjoyed few rights regarding his privacy. * * * Once defendant was imprisoned, he lacked the right to privacy that he enjoyed when he was not in prison. Among the rights that he forfeited was the right to keep his personal appearance [-] including any distinguishing marks such as tattoos-from being known to the state."

340 Or. at 563, 135 P.3d 305 (citations omitted). See also Sterling v. Cupp, 290 Or. 611, 620, 625 P.2d 123 (1981) ("Those sentenced to prison forfeit many rights that accompany freedom."); State v. Lippert, 317 Or. 397, 856 P.2d 634 (1993) (seizure of paperfold containing controlled substance from defendant's pocket permissible, when defendant placed in protective custody for detoxification).

Similarly, probationers and other conditional releasees who have been lawfully convicted of a felony do not enjoy the full panoply of rights that the general public possesses. Rather, they are subject to a broad range of restrictions that might infringe on what otherwise would be constitutional rights of a person in a free society. Many such restrictions last only for the duration of the supervision or probation period. For example, probationers and parolees, while they are on probation or parole, often are forbidden to use liquor, to associate with certain people, to travel outside the state, and to change jobs or move without first seeking permission. In addition, at least one permissible restriction on a convicted felon's constitutional rights is permanent, whether that person has been sentenced to a term of imprisonment or to probation: Felony offenders permanently lose their state (and, perhaps, federal) constitutional right to bear arms as a consequence of conviction. See ORS 166.270 (making it a felony for a convicted felon to possess a firearm and a misdemeanor for a convicted felon to possess other "restricted weapons"); see also 18 U.S.C. § 922(g)(1) (making it a federal offense for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to transport, possess, or receive a firearm or ammunition that has been shipped or transported in interstate or foreign commerce); State v. Hirsch/Friend, 338 Or. 622, 114 P.3d 1104 (2005) (statute making it a crime for felon to possess firearm not unconstitutional under Article I, section 27, of the Oregon Constitution).

It follows from the foregoing that ORS 137.076 does not necessarily deprive felony offenders (be they prisoners, persons on supervision, or probationers) of certain of their constitutional rights in general, or of their Article I, section 9, rights in particular, by subjecting them to a specific form of search and seizure as a consequence of their convictions. Furthermore, the statute narrows the class of persons potentially subject to it by limiting its terms to felons and persons convicted of certain other serious offenses.

We turn to consider the nature of the search itself. The blood or buccal sample that a convicted felon must provide under ORS 137.076 permits the state to derive that person's DNA profile. That profile establishes a record of the convicted person's identity (an extremely accurate and detailed one). No...