State v. Surge

• Decision Date: 19 April 2007
• Docket Number: No. 76013-6.,76013-6.
• Citation: 156 P.3d 208,160 Wn.2d 65
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Antoine Robert SURGE, aka "Little Nut"; Christopher T. Yarbrough; Shabray Traysunday McMurry; James McClinton; Ricardo Guzman-Gil; and Allen Lee Bowman, aka Alan Bowman, Petitioners.

156 P.3d 208

160 Wn.2d 65

STATE of Washington, Respondent, v. Antoine Robert SURGE, aka "Little Nut"; Christopher T. Yarbrough; Shabray Traysunday McMurry; James McClinton; Ricardo Guzman-Gil; and Allen Lee Bowman, aka Alan Bowman, Petitioners.

No. 76013-6.

Supreme Court of Washington, En Banc.

Argued May 26, 2005.

Decided April 19, 2007.

Gregory Charles Link, Maureen Marie Cyr, Washington Appellate Project, David Bruce Koch, Eric Broman, Eric J. Nielsen, Nielson Broman & Koch PLLC, Seattle, WA, for Petitioners.

Carla Barbieri Carlstrom, King County Prosecutor's Office, Prosecuting Atty. King County, King County Pros/App Unit Supervisor, Seattle, WA, for Respondent.

Douglas B. Klunder, Seattle, for Amicus Curiae on behalf of American Civil Liberties Union.

C. JOHNSON, J.

¶ 1 This case asks us to determine if RCW 43.43.754, a statute authorizing the collection of biological samples for DNA (deoxyribonucleic acid) identification purposes from those convicted of certain crimes, violates article I, section 7 of the Washington State Constitution or the Fourth Amendment. The six petitioners in these consolidated cases were convicted of felonies and, pursuant to the challenged statute, ordered to submit to compulsory DNA sampling. The petitioners appealed the requirement. The Court of Appeals affirmed the trial court's sentencing requirement and held the State's collection of the biological samples constitutes a special need for which a warrant is not required. We affirm the Court of Appeals and hold the compelled collection of DNA from convicted felons does not invade a recognized private affair under the state constitution nor is it prohibited under the Fourth Amendment.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Petitioner Antoine Surge pleaded guilty to murder in the second degree. Petitioner Christopher Yarbrough was convicted of two counts of robbery and one count of burglary. Petitioner Shabray McMurry was convicted of bailjumping. Petitioner James McClinton pleaded guilty to unlawful possession of cocaine. Petitioner Ricardo Guzman-Gil entered an Alford¹ plea to one count of third degree rape of a child and one count of second degree assault. Petitioner Allen Bowman entered an Alford plea to one count of possession of stolen property in the second degree. Pursuant to the challenged statute, each petitioner was ordered to provide a biological sample for DNA identification analysis and inclusion in the State's DNA database. All six appealed, arguing the compulsory collection of DNA under RCW 43.43.754² constituted an unreasonable search under the Fourth Amendment. The Court of Appeals affirmed the requirement, finding the special needs analysis from State v. Olivas, 122 Wash.2d 73, 856 P.2d 1076 (1993) dispositive. State v. Surge, 122 Wash. App. 448, 450, 94 P.3d 345 (2004). The court noted that even if the special needs analysis is no longer valid under federal law, the statute is constitutional under the minimally intrusive search analysis advanced by the concurring opinion in Olivas. All six defendants petitioned this court for review, this time arguing the statute violated their rights under both article I, section 7 and the Fourth Amendment. We granted review at 153 Wash.2d 1008, 111 P.3d 1190 (2005).

ANALYSIS

¶ 3 When presented with arguments under both the state and federal constitutions, we review the state constitution arguments first. State v. Carter, 151 Wash.2d 118, 125, 85 P.3d 887 (2004). Under the Washington Constitution, it is well established that article I, section 7 qualitatively differs from the Fourth Amendment and in some areas provides greater protections than does the federal constitution. State v. McKinney, 148 Wash.2d 20, 29, 60 P.3d 46 (2002). Accordingly, a Gunwall³ analysis is unnecessary to establish that this court should undertake an independent state constitutional analysis.⁴ State v. Jackson, 150 Wash.2d 251, 259, 76 P.3d 217 (2003); McKinney, 148 Wash.2d at 26, 60 P.3d 46. The only relevant question is whether article I, section 7 affords enhanced protection in the particular context. McKinney, 148 Wash.2d at 26-27, 60 P.3d 46.

Article I, Section 7

¶ 4 Article I, section 7 reads, "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." The language of article I, section 7 requires a two-part analysis. We begin by determining whether the action complained of constitutes a disturbance of one's private affairs. If there is no private affair being disturbed, no article I, section 7 violation exists. If a valid privacy interest has been disturbed, the second step in our analysis asks whether authority of law justifies the intrusion. In general terms, the "authority of law" required by article I, section 7 is satisfied by a valid warrant. However, the protections of article I, section 7 and the authority of law inquiry are triggered only when a person's private affairs are disturbed or the person's home is invaded. Carter, 151 Wash.2d at 126, 85 P.3d 887.

¶ 5 The "private affairs" inquiry focuses on "`those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.'" State v. Young, 123 Wash.2d 173, 181, 867 P.2d 593 (1994) (quoting State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984)). Private affairs are not determined according to a person's subjective expectation of privacy because looking at subjective expectations will not identify privacy rights that citizens have held or privacy rights that they are entitled to hold. We begin by examining the historical treatment of the interest asserted, which may disclose that the interest is one a citizen has held. McKinney, 148 Wash.2d at 27, 60 P.3d 46. For example, in Gunwall, we relied in part on a statute first enacted in 1909 to establish the historical treatment of the interest asserted in that case. If history does not show whether the interest is one entitled to protection under article I, section 7, we then turn to the question whether the expectation is one that a citizen of this state is entitled to hold. McKinney, 148 Wash.2d at 29, 60 P.3d 46. This part of the inquiry includes looking at the nature and extent of the information which may be obtained as a result of the governmental conduct. McKinney, 148 Wash.2d at 27-29, 60 P.3d 46. The extent to which the information has been voluntarily exposed to the public is also a consideration because it may show, objectively, that there is no expectation of privacy.

¶ 6 In this case, the "private affairs" inquiry focuses on a convicted felon's asserted privacy interest in his or her identity, not on the privacy interests of the ordinary citizen. The distinction is important to our inquiry because the statute involved in this case applies only to the narrow class of individuals who have been convicted of the listed crimes, and the focus must be on their rights.

¶ 7 The State argues that convicted felons have always had a diminished privacy interest in their identity. The State points out that upon conviction, the defendant's name, date of birth, physical features, race, distinguishing scars or tattoos, and fingerprints all become part of the person's criminal history and this information is maintained as to these individual identifying characteristics. The State contends that DNA sampling,⁵ which further identifies a defendant, is no more of an intrusion into the defendant's privacy rights than collecting fingerprints or other identifying data. As to monitoring this information for further use, the State points out that fingerprints are filed and regularly compared to fingerprints found at crime scenes or used to identify bodies with no other means of identification. The State notes that the constitutionality of any of the above identification requirements is unchallenged and that no case or statute exists recognizing a heightened privacy interest held by convicted felons in these identifying requirements.

¶ 8 Petitioners argue article I, section 7 provides greater protection in all warrantless search situations and no exceptions apply. Petitioners' argument assumes ordinary citizens and convicted felons enjoy the same privacy interests under the state constitution and, therefore, our article I, section 7 analysis will not vary based on the status of a petitioner. Petitioners rely on one sentence in State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980), to assert article I, section 7 recognizes an individual's right to privacy with no express limitations and, therefore, any invasion into a person's privacy requires either a warrant or a narrowly drawn exception to the warrant requirement.

¶ 9 Petitioners read Simpson too broadly. In Simpson, we focused our analysis on the Fourth Amendment to find the challenged search unreasonable. Also, in State v. Cheatam, 150 Wash.2d 626, 81 P.3d 830 (2003), we declared article I, section 7 recognized an individual's right to privacy with no express limitations, but explicitly analyzed Cheatam's claim under state constitutional principles, and found Cheatam, as an arrestee, had lost any privacy interest in his personal items that had already been lawfully exposed to police view. Thus, while article I, section 7 does not expressly limit the right to privacy, not every asserted right qualifies as a "private affair." We still analyze the interest under state constitutional principles to determine if a valid privacy interest exists.

¶ 10 We find the petitioners' arguments unpersuasive for two additional reasons. First, the constitutional rights afforded to a person often depend on his or her status. In Washington, a person's privacy rights under article I, section 7 may vary based on that person's status as an arrestee, pretrial detainee, prisoner, or probationer. See, e.g., Cheatam, 150 Wash.2d at 642, 81 P.3d 830 (holding an arrestee loses any privacy interest in personal items already searched and...