State v. Superior Court In and For County of Maricopa

• Decision Date: 23 July 1996
• Docket Number: CA-SA,No. 1,R,JV-511263,1
• Citation: 187 Ariz. 411,930 P.2d 488
• Parties: , 65 USLW 2102 STATE of Arizona, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN and FOR the COUNTY OF MARICOPA, The Honorable Kirkby Roseveare, a judge thereof, Respondent Judge,eal Party in Interest. 95-0340.
• Court: Arizona Court of Appeals

Page 488

930 P.2d 488

187 Ariz. 411, 65 USLW 2102

STATE of Arizona, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN and FOR the COUNTY OF MARICOPA, The Honorable Kirkby Roseveare, a judge thereof, Respondent Judge, JV-511263, Real Party in Interest.

No. 1 CA-SA 95-0340.

Court of Appeals of Arizona,

Division 1, Department C.

July 23, 1996.

Review Denied Jan. 14, 1997.

[187 Ariz. 413] Richard M. Romley, Maricopa County Attorney by Elizabeth Ortiz, Deputy County Attorney, Mesa, for Petitioner.

Dean W. Trebesch, Maricopa County Public Defender by Susan G. White, Deputy Public Defender, Mesa, for Real Party in Interest.

OPINION

FIDEL, Presiding Judge.

In this special action we consider whether Arizona Revised Statues Annotated ("A.R.S.") § 8-241(N), which requires the court to order human immunodeficiency virus ("HIV") testing of a juvenile sex offender upon request of the victim, violates the Fourth Amendment's prohibition against unreasonable searches and seizures. We hold that it does not.

I. BACKGROUND

The juvenile real party in interest was adjudicated delinquent on one count of child molestation. The evidence shows that the juvenile attempted anal intercourse with the victim. Although there was no "significant exposure" to the juvenile's bodily fluids, as that term is defined in A.R.S. § 13-1415, ¹ the delinquent act possibly exposed the victim to the juvenile's bodily fluids.

The victim's mother requested that the juvenile be tested for the presence of HIV pursuant to A.R.S. § 8-241(N), which provides:

On the request of a victim of a delinquent act that may have involved significant exposure as defined in § 13-1415 or that if committed by an adult would be a sexual offense, the prosecuting attorney shall petition the adjudicating court to require that the delinquent child be tested for the presence of the human immunodeficiency virus. If the victim is a child the prosecuting attorney shall file this petition at the request of the victim's parent or guardian. If the act committed against a victim is an act that if committed by an adult would be a sexual offense or the court determines that sufficient evidence exists to indicate that significant exposure occurred, it shall order the department of juvenile corrections or the department of health services to test the child pursuant to § 13-1415. Notwithstanding any law to the contrary, the department of juvenile corrections and the department of health services shall release the test results only to the victim, the delinquent child, the delinquent child's parent or guardian and a minor victim's parent or guardian and shall counsel them regarding the meaning and health implications of the results.

After a hearing, the juvenile court denied the request, finding involuntary HIV testing to be "an unreasonable search under the 4th Amendment" to the U.S. Constitution. The court found that "the information sought as to whether the victim might be subject to the life threatening consequences of HIV can best be determined by medical examination of the victim." The juvenile court based this finding on medical evidence summarized in In re J.G., N.S., and J.T., 283 N.J.Super. 32, 660 A.2d 1274 (Ch. Div.1995), a New Jersey trial court opinion that was reversed after our juvenile court ruled. ²

II. JURISDICTION

The State challenges the trial court's ruling by petition for special action. The juvenile urges us to decline jurisdiction over the State's petition because the court's order was a "final order" that should have been challenged on direct appeal. We disagree.

The final order in a delinquency action is the final dispositional order. In re Maricopa County Juvenile Action No. J-78151-S, 119 Ariz. 320, 321, 580 P.2d 781, 782 (App.1978). The Rules of Procedure for the Juvenile Court do not provide for appeals from subsequent orders; such orders are properly attacked by special action. Id. Because the issue in this action arose after the final dispositional order, it is properly raised by special action.

The juvenile argues in the alternative that the order was directly appealable pursuant to A.R.S. § 13-4032(4), which permits the State to appeal in criminal matters from "[a] ruling on a question of law adverse to the state when the defendant was convicted and appeals from the judgment." Because "an order of the juvenile court ... shall not be deemed a conviction of crime," A.R.S. § 8-207, the juvenile was not "convicted." Nor did the juvenile appeal from the final dispositional order. A.R.S. § 13-4032(4) did not, therefore, offer the State an avenue for direct appeal.

We will accept special action jurisdiction in a case that raises "a constitutional issue of first impression and statewide importance" when "there [is] no adequate remedy in any other procedure or forum." Fairness & Accountability in Insurance Reform v. Greene, 180 Ariz. 582, 586, 886 P.2d 1338, 1342 (1994). This case raises such an issue.

III. FOURTH AMENDMENT

The State argues that the juvenile court erred when it found that A.R.S. § 8-241(N) violated the juvenile's Fourth Amendment right to be free from unreasonable searches and seizures. We agree.

The involuntary drawing and analysis of blood by the government "infringes an expectation of privacy that society is prepared to recognize as reasonable." Skinner v. Railway Labor Executives' Assoc., 489 U.S. 602, 616, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989). It is therefore a search subject to Fourth Amendment constraints. Id.; Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 1833-35, 16 L.Ed.2d 908 (1966).

The Fourth Amendment, however, proscribes only unreasonable searches. Skinner, 489 U.S. at 619, 109 S.Ct. at 1412-13. In most circumstances "a search must be supported ... by a warrant issued upon probable cause," but "neither a warrant nor probable cause ... is an indispensable component of reasonableness in every circumstance." National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989). We consider whether absence of a warrant or probable cause requirement is constitutionally problematic here.

A. Absence of a Warrant

In Skinner, the Supreme Court explained the purposes that the warrant requirement serves:

An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents. A warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope.... A warrant also provides the detached scrutiny of a neutral magistrate, and thus ensures an objective determination whether an intrusion is justified in any given case.

489 U.S. at 621-22, 109 S.Ct. at 1415-16.

No "warrant" is required for HIV testing under A.R.S. § 8-241(N); that is, the statute does not designate the testing order by that name. Yet by requiring the detached scrutiny of the juvenile court, the statute equals or exceeds the protection provided by a magistrate, and the statute establishes a pre-testing process that satisfies each of the further warrant purposes outlined in Skinner. Because a warrant would provide no additional protection to the juvenile's personal privacy, see Von Raab, 489 U.S. at 667, 109 S.Ct. at 1391-92, we deem it constitutionally insignificant that the authorizing document is denominated a judicial "order," not a "warrant." In re Maricopa County Juvenile Action Nos. JV-512600 and JV-512797, 187 Ariz. 419, 423, 930 P.2d 496, 500 (App.1996) (upholding DNA testing statute as providing procedural safeguards "more stringent than those required for the issuance of a warrant"). We therefore hold that the absence of a warrant requirement does not render A.R.S. § 8-241(N) unconstitutional.

B. Probable Cause

Nor is the statute rendered unconstitutional by the absence of a probable cause requirement. We first observe that probable-cause discussion is contextually ill-suited to cases such as this. "[T]he probable-cause standard is 'peculiarly related to criminal investigations.' " Von Raab, 489 U.S. at 667, 109 S.Ct. at 1392. The purpose of HIV testing under A.R.S. § 8-241(N) is not to obtain evidence for a criminal investigation but to assist the victim after adjudication of guilt. A positive test would not subject the juvenile to either civil or criminal penalties. Further, the "individualized suspicion" requirement of probable-cause analysis is awkward in this context. That the juvenile had sexual contact with the victim is more than a matter of individualized suspicion; it was proven beyond a reasonable doubt. See JV-512600, 187 Ariz. at 423, 930 P.2d at 500.

The statute requires no showing of probable cause that the juvenile has been infected with HIV. But any such requirement would defeat the statute's purpose, given the hidden nature of HIV. Cf. Von Raab, 489 U.S. at 668, 109 S.Ct. at 1392. When there is a special need, the courts "have not hesitated to balance the governmental and privacy interests to assess the practicality of the ... probable-cause requirement[ ] in the particular context." Skinner, 489 U.S. at 619, 109 S.Ct. at 1414. We undertake such "special need" analysis in this case.

Other courts that have addressed the issue of involuntary HIV testing have found that the possibility of HIV infection presents a "special need" of the type identified in Skinner and Von Raab. See, e.g., Johnetta J. v. Municipal Court, 218 Cal.App.3d 1255, 1279, 267 Cal.Rptr. 666 (1990); Fosman v. State, 664 So.2d 1163, 1165 (Fla.Dist.Ct.App.1995); People v. Adams, 149 Ill.2d 331, 173 Ill.Dec 600, 606, 597 N.E.2d 574, 580 (1992); In re J.G., N.S., and J.T., 289 N.J.Super. 575, 674 A.2d 625, 631 (App.Div.1996); In re Juveniles A, B, C, D, E, 121 Wash.2d 80, 847 P.2d 455, 459 (1993) ("In re Juveniles" ). Approaching the issue as those courts have done, we consider the questions (1)...