State v. Surge

• Decision Date: 12 July 2004
• Docket Number: No. 52303-1-I, No. 52704-5-I, No. 51954-9-I, No. 52373-2-I, No. 52472-1-I, No. 52277-9-I.
• Citation: 122 Wash.App. 448,94 P.3d 345
• Parties: STATE of Washington, Respondent, v. Antoine Robert SURGE; Christopher Yarbrough; Shabray McMurry; James McClinton; Ricardo Guzman-Gil; Allen Bowman, Appellants.
• Court: Washington Court of Appeals

94 P.3d 345

122 Wash.App. 448

STATE of Washington, Respondent, v. Antoine Robert SURGE; Christopher Yarbrough; Shabray McMurry; James McClinton; Ricardo Guzman-Gil; Allen Bowman, Appellants.

Nos. 51954-9-I, 52303-1-I, 52373-2-I, 52472-1-I, 52704-5-I, 52277-9-I.

Court of Appeals of Washington, Division 1.

July 12, 2004.

Reconsiderations Denied August , 2004.

David B. Koch, Jennifer Dobson, Eric J. Nielsen, Gregory Charles Link, Maureen Cyr, Seattle, WA, for Appellants.

Carla Barbieri Carlstrom, King County Pros. Atty., Seattle, WA, for Respondent.

KENNEDY, J.

Following their felony convictions, the appellants in these six consolidated appeals were ordered to submit to a collection of biological samples for purposes of DNA identification analysis as required by RCW 43.43.754. Each appellant raises the same issue on appeal: whether our state supreme court's opinion in State v. Olivas, 122 Wash.2d 73, 856 P.2d 1076 (1993) upholding an earlier version of this same statute under Fourth Amendment "special need" analysis is still good law, in light of intervening United States Supreme Court and Ninth Circuit authority. In United States v. Kincade, 345 F.3d 1095 (9th Cir.2003), a panel of the Ninth Circuit Court of Appeals held that a similar federal statute violates the Fourth Amendment. The Kincade court refused to follow Ninth Circuit precedent to the contrary, reasoning that the prior case had been undermined by two intervening United States Supreme Court cases.

But while these appeals were pending, the Ninth Circuit ordered that Kincade be reheard en banc. See, United States v. Kincade, 354 F.3d 1000 (9th Cir.2004)

(ordering that the case be reheard and that the three-judge panel opinion not be cited as precedent pending further ruling of the court en banc). At this writing, an en banc opinion has not been issued in Kincade.

We disagree with the Kincade majority's conclusion that intervening United States Supreme Court case law has effectively overruled Ninth Circuit precedent that is consistent with Olivas. We believe that the Olivas court properly concluded that the drawing of blood from convicted felons to establish a DNA databank serves a special need beyond normal law enforcement that properly may be balanced against the privacy interests of convicted felons. But even if the Olivas court's special needs analysis is analytically flawed, our DNA statute nevertheless passes Fourth Amendment muster under a different exception to the general warrant requirement, in that obtaining biological samples from convicted felons serves a compelling state interest, the means of collecting such samples are minimally intrusive, and convicted felons have no reasonable expectation of privacy in such identifying markers as their fingerprints and DNA. Accordingly, we affirm the judgments and sentences here at issue.

FACTS

Antoine Surge pleaded guilty to murder in the second degree. (No. 51954-9). Christopher Yarbrough was found guilty by a jury of two counts of robbery and one count of burglary. (No. 52303-1). Shabray McMurry was found guilty by a jury of bail jumping. (No. 52373-2). James McClinton pleaded guilty to unlawful possession of cocaine. (No. 52472-1). Ricardo Guzman-Gil entered an Alford¹ plea to one count of third degree rape of a child and one count of second degree assault. (No. 52704-5). Allen Bowman entered an Alford plea to one count of possession of stolen property in the second degree. (No. 52277-9). As part of their sentences, all six defendants were required to provide DNA samples to the State's DNA databank as required by RCW 43.43.754. All six defendants appeal the portion of their sentences that require compulsory DNA samples. A motion to consolidate the appeals was granted.

DISCUSSION

I. RCW 43.43.754 and the Fourth Amendment

The statute at issue on appeal, RCW 43.43.754(1) provides:

Every adult or juvenile individual convicted of a felony, stalking under RCW 9A.46.110, harassment under RCW 9A.46.020, communicating with a minor for immoral purposes under RCW 9.68A.090, or adjudicated guilty of an equivalent juvenile offense must have a biological sample collected for purposes of DNA identification analysis[.]

Although Surge and the State have filed a stipulation that King County's preferred procedure for collecting DNA for purposes of RCW 43.43.754 is cheek swabs, a state regulation appears to provide for DNA analysis to be accomplished through blood samples. See, WAC 446-75-060. The appellants collectively assert that RCW 43.43.754 and WAC 446-75-060 violate the Fourth Amendment prohibition against unreasonable searches and seizures.

A threshold question is whether the challenged governmental act is a "search" or "seizure" within the scope of the Fourth Amendment. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Courts generally agree that the collection and analysis of biological samples from an individual constitutes a search for purposes of the Fourth Amendment. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 76, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001)

(urine tests conducted by state hospital staff members were indisputably searches within the meaning of the Fourth Amendment); Skinner, 489 U.S. at 616,

109 S.Ct. 1402 ("compelled intrusion into the body for blood to be analyzed for alcohol content" is deemed a Fourth Amendment search.); In re Shabazz, 200 F.Supp.2d 578 (D.S.C.2002) (grand jury subpoena for saliva sample constitutes a search within the meaning of the Fourth Amendment). Thus, we conclude that the samples taken here constituted a search for purposes of the Fourth Amendment, regardless of whether the samples were obtained by drawing blood or by cheek swabs.

"The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures." United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). What is reasonable "`depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.'" Skinner, 489 U.S. at 619, 109 S.Ct. 1402 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985)). Whether a particular practice is permissible "`is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" Skinner, 489 U.S. at 619, 109 S.Ct. 1402 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)).

Generally, a search is not reasonable unless it is based on a warrant issued upon probable cause. Skinner, 489 U.S. at 619, 109 S.Ct. 1402. An exception to this general rule arises when "`special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" Skinner, 489 U.S. at 619, 109 S.Ct. 1402 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). When faced with legitimate special needs, the United States Supreme Court has not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context. Skinner, 489 U.S. at 619, 109 S.Ct. 1402.

The high court has upheld warrantless searches as reasonable in various "special need" situations, including drug testing of railroad employees without individualized suspicion because of safety issues inherent in the work, minimal intrusiveness of urine testing, and reduced expectation of privacy of employees of highly regulated industries (Skinner, 489 U.S. at 624-27, 109 S.Ct. 1402); work-related searches of government employees' desks and offices without suspicion of wrongdoing because of interest of employers in conducting business efficiently and reduced expectations of privacy of employees at work (O'Connor v. Ortega, 480 U.S. 709, 721-26, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987)); search of a student's property by school officials based on a suspicion that the student was violating school policy, balancing the privacy interests of the student with the substantial need of the school to maintain order (New Jersey v. T.L.O., 469 U.S. at 333, 337-42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)); validating the search of a probationer's home based on State's interest in operating its probation system, the probationer's conditional liberty, and suspicion that the probationer had a weapon (Griffin, 483 U.S. at 873, 107 S.Ct. 3164); and validating visual body cavity searches of prison inmates after balancing the significant security interests of the prison against the privacy interests of the inmates (Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).

Congress and all 50 states have enacted legislation similar to RCW 43.43.754 requiring the establishment and maintenance of DNA databases of convicted criminal offenders. See, e.g., Landry v. Attorney General, 429 Mass. 336, 343-44, 709 N.E.2d 1085, 1090 (Mass.1999)

(citing cases), cert. denied sub nom. Landry v. Reilly, 528 U.S. 1073, 120 S.Ct. 785, 145 L.Ed.2d 663 (2000); 42 U.S.C. §§ 14131-35. A number of these statutes have withstood Fourth Amendment challenges. See, e.g., Groceman v. United States Dep't of Justice, 354 F.3d 411 (5th Cir.2004); United States v. Kimler, 335 F.3d 1132 (10th Cir.2003),

cert. denied, ___ U.S. ___, 124 S.Ct. 945, 157 L.Ed.2d 759 (2003).

Our own Supreme Court has previously addressed whether an earlier version of RCW 43.43.754 fits within the Fourth Amendment "special need" exception in State v. Olivas, 122 Wash.2d 73, 856 P.2d 1076 (1993). The previous version of the statute limited mandatory DNA blood testing to felons convicted of violent or sexually-related crimes, Olivas, 122 Wash.2d at 83, n. 17, 856 P.2d 1076, but in upholding...