IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 69663-7-1 Respondent, CZ r~ ) DIVISION ONE (V)
v. corn
JOSE FIGEROA MARTINES, ) PUBLISHED OPINION PO o —-
Appellant. ) FILED: July 21, 2014 —i
Becker, J. — The extraction of blood from a drunk driving suspect is a
search. Testing the blood sample is a second search. It is distinct from the initial
extraction because its purpose is to examine the personal information blood
contains. We hold that the State may not conduct tests on a lawfully procured
blood sample without first obtaining a warrant that authorizes testing and
specifies the types of evidence for which the sample may be tested.
The events leading to this appeal occurred on June 20, 2012. Appellant
Jose Martines was observed driving his sport utility vehicle erratically on State SOVTA/FECOPA UFRT Route 167. He veered into another car, careened across the highway, bounced
off the barrier, and rolled over. Washington State Trooper Dennis Tardiff arrived
and took Martines into custody. Martines smelled of intoxicants, had bloodshot
and watery eyes, and stumbled while walking.
Trooper Tardiff sought a warrant to extract a blood sample from Martines.
His affidavit of probable cause stated that a blood sample "may be tested to No. 69663-7-1/2
determine his/her current blood alcohol level and to detect the presence of any
drugs that may have impaired his/her ability to drive." He obtained a warrant that
authorized a competent health care authority to extract a blood sample and
ensure its safekeeping. The warrant did not say anything about testing of the
blood sample.
Pursuant to the warrant, a blood sample was drawn from Martines at a
local hospital. Then it was tested for the presence of drugs and alcohol. The test
results indicated that Martines had a blood alcohol level of .121 within an hour
after the accident and that the drug diazepam (Valium) was also present.
Martines had a prior conviction for vehicular assault while driving under the
influence. The State charged him with felony driving under the influence of an
intoxicant, RCW 46.61.502(6)(b)(ii).
Martines moved to suppress evidence of drugs or drug testing. He argued
there was no probable cause to support testing his blood for drugs because the
witnesses observed only the signs and smells of alcohol. The trial court found
that probable cause to test for alcohol included probable cause to test for drugs.
At trial, a toxicologist presented the results of the blood test. She testified
that both alcohol and diazepam can affect driving ability.
To convict Martines as charged, one of the elements the jury had to find
was that at the time of driving a motor vehicle, he:
(a) was under the influence of or affected by intoxicating liquor or any drug; or (b) was under the combined influence of or affected by intoxicating liquor and a drug. No. 69663-7-1/3
The prosecutor argued in closing that the blood test results confirmed the
opinions of various witnesses who believed Martinez was intoxicated based on
their observations at the scene. "You take a look at all of that together, and it's
pretty clear the defendant was under the influence at that time, alcohol and
drugs."
The jury returned a guilty verdict. Martines appeals.
On appeal, Martines briefly repeats his argument that without specific
facts in the search warrant supporting a suspicion that Martines was affected by
a drug, it was improper to admit the results of the laboratory tests for the
presence of drugs. We do not address that argument in this opinion. The
primary issue Martines raises on appeal is that testing a blood sample for any
purpose is a search for which a warrant is required. Because the warrant
authorizing the extraction of blood did not specifically authorize blood testing of
any kind, Martines contends that the results should have been suppressed as the
fruit of an illegal search. This additional issue is constitutional in nature, and
therefore we consider it even though it is raised for the first time on appeal. RAP
2.5(a).
The State responds that a warrant is needed only for the extraction of
blood and no further authority is needed to test the extracted sample. It is
undisputed that the State had probable cause to suspect that Martines was
driving under the influence of alcohol and that evidence of the crime could be
found in his blood. In the State's view, once the police obtained a blood sample
as authorized by the warrant, they could subject it to testing without any further No. 69663-7-1/4
showing of probable cause and without a search warrant authorizing testing and
particularly identifying the types of evidence for which the sample could be
tested. The State asserts that blood is a thing to be seized, not a place to be
searched, and once a blood sample is lawfully seized, the individual whose blood
has been seized no longer has a constitutionally protected privacy interest in it.
The principal case upon which the State relies is State v. Cheatam. 150
Wn.2d 626, 81 P.3d 830 (2003). The defendant in Cheatam was suspected of
rape. He was arrested on an unrelated charge and booked into jail. His clothing
and personal effects were inventoried and stored in the jail's property room. A
detective took his shoes from the property room and confirmed a visual match
between the tread and a footprint near the site of the alleged rape. The State
charged Cheatam with rape, the court admitted the shoe evidence at the trial,
and Cheatam was convicted. He argued on appeal, unsuccessfully, that the
shoe evidence should have been suppressed as the fruit of a warrantless search.
Cheatam, 150 Wn.2d at 634. The court held that "once an inmate's personal
effects have been exposed to police view in a lawful inventory search and stored
in the continuous custody of the police, the inmate no longer has a legitimate
expectation of privacy in the items free of further governmental intrusion."
Cheatam, 150 Wn.2d at 638. It made no difference that an investigation was
being conducted into a different crime than the one the inmate was arrested for
"because one's privacy interest does not change depending on which crime is
under investigation once lawful exposure has already occurred." Cheatam, 150
Wn.2d at 642 (emphasis added). No. 69663-7-1/5
The State here argues that blood, like shoes, belongs in the category of
personal effects and police therefore have unlimited authority to subject a lawfully
obtained blood sample to forensic testing for any purpose. The State contends
our Supreme Court adopted that position when it applied Cheatam in State v.
Gregory. 158 Wn.2d 759, 147 P.3d 1201 (2006). We believe the State reads
Gregory too expansively.
In Gregory, the State drew the defendant's blood in connection with a rape
investigation, pursuant to a court order authorized by CrR 4.7(b)(2)(vi) and
supported by probable cause. By testing the blood sample, the State obtained
Gregory's DNA (deoxyribonucleic acid) profile. Gregory did not challenge the
reasonableness of the test that produced his DNA profile. Gregory, 158 Wn.2d
at 822-23. Later, the State compared the DNA profile to DNA in semen collected
from the scene of a murder. The result of this comparison implicated Gregory in
the murder. He moved to suppress the use of the DNA evidence in the murder
case. He asserted "an ongoing privacy interest in the characteristics of his DNA"
such that the State was obligated to obtain a warrant to compare his DNA profile
with material collected in connection with an unrelated crime. Gregory, 158
Wn.2d at 825-26.
The court rejected the argument that a warrant was necessary, following
Cheatam and holding that Gregory's DNA profile was comparable to Cheatam's
shoes:
While unique requirements must be met to support a blood draw, Gregory has failed to adequately explain why, after the blood draw is complete, a DNA profile that is lawfully in the State's possession should be treated differently from other items of a No. 69663-7-1/6
defendant's property with regard to subsequent criminal investigations. Gregory's blood was drawn for the very purpose of conducting DNA analyses and the resulting DNA profile was lawfully in the possession of police, regardless of which evidence that DNA profile was being compared against, swabs from R.S.'s rape kit or samples from the G.H. crime scene. Gregory does not point to any court that has concluded that DNA evidence, lawfully in the possession of the State for the purposes of one criminal investigation, cannot be compared with evidence collected for the purposes of an unrelated criminal investigation. We conclude that once the suspect's DNA profile is lawfully in the State's possession, the State need not obtain an independent warrant to compare that profile with new crime scene evidence.
Gregory, 158 Wn.2d at 827 (emphasis added) (footnote omitted).
What must be noted in the passage quoted above is that the item the
court regarded as comparable to Cheatam's shoes was Gregory's DNA profile-
not his blood. The court held that once the police lawfully obtained Gregory's
DNA profile from his blood sample, they were free to compare that profile to DNA
found during an investigation into a different crime. The court did not hold that
the police were free to go back to the blood sample and test it for other types of
information not contained in the DNA profile.1 Gregory does not answer the
question posed by Martines—whether a forensic test to acquire particular
1In a footnote to the passage from Gregory quoted above, the court cited cases from other jurisdictions in support of the conclusion that once a blood sample has been lawfully procured for the purpose of DNA testing, the police do not need an independent warrant to compare it to DNA evidence found at the scene of another crime. Gregory. 158 Wn.2d at 827 n.36, citing People v. King. 232 A.D.2d 111, 663 N.Y.S.2d 610, 614 (1997); Bicklev v. State, 227 Ga. App. 413, 489 S.E.2d 167, 170 (1997); Wilson v. State, 132 Md. App. 510, 752 A.2d 1250, 1272 (2000). Arguably, King goes further and indicates that a blood sample, lawfully seized for any purpose at all, is no different from lawfully seized items of tangible property such as a gun or a controlled substance. King. 232 A.D.2d at 117. We are not persuaded by that reasoning, and we do not read Gregory as going that far. No. 69663-7-1/7
information from a blood sample is itself a search separate from the drawing of
the sample.
That question is also unanswered by the next case on which the State
relies, State v. Athan. 160 Wn.2d 354, 158 P.3d 27 (2007). In Athan, the court
held that the defendant abandoned any expectation of privacy he may have had
in his saliva when he unwittingly but voluntarily mailed to detectives an envelope
he had licked. Athan. 160 Wn.2d at 374. Martines did not voluntarily give up his
blood sample or any expectation of privacy he had in its contents.
In Athan, the court declined to address an argument by amicus curiae
American Civil Liberties Union that "DNA should constitute a privacy interest"
because of its potential to reveal a vast amount of personal information, including
medical conditions and familial relations. Athan. 160 Wn.2d at 368. The court
stated that the concern raised by amicus, "while valid," was not present because
the State had used the saliva sample only for identification purposes, not to
investigate more personal matters. Athan. 160 Wn.2d at 368. Here, the State
suggests that this court can similarly avoid addressing whether there is a privacy
interest in blood because the blood sample was used only to investigate whether
Martines was guilty of driving under the influence, not to test for unrelated
personal information. But in this case, we cannot avoid deciding whether testing
of blood is a separate search distinct from drawing of blood. The issue
determines the outcome. The importance of deciding it is heightened by the fact
that the exigency exception to the Fourth Amendment no longer categorically
applies in drunk driving investigations. Missouri v. McNeelv. U.S. , 133 S. No. 69663-7-1/8
Ct. 1552, 1555, 185 L. Ed. 2d 696 (2013). Warrants for testing the blood of
drunk driving suspects will now become more prevalent. Law enforcement
officers who seek warrants and judges who issue them need guidance as to what
these warrants must authorize.
If a government action intrudes upon an individual's "reasonable
expectation of privacy," a search occurs under the Fourth Amendment. Katz v.
United States. 389 U.S. 347, 360-61, 88 S. Ct. 507, 19 L. Ed. 576 (1967) (Harlan,
J., concurring). When the government disturbs those privacy interests that
citizens of the state have held, and should be entitled to hold, safe from
governmental trespass absent a warrant, a search occurs under article I, section
7 of the Washington Constitution. State v. Mvrick. 102 Wn.2d 506, 511, 688 P.2d
151 (1984).
"The overriding function of the Fourth Amendment is to protect personal
privacy and dignity against unwarranted intrusion by the State." Schmerber v.
California. 384 U.S. 757, 767, 86 S. Ct. 1826, 1834, 16 L Ed. 2d 908 (1966). In
the context of determining what limitations the Fourth Amendment imposes upon
intrusions into the human body, limitations on the kinds of property which may be
seized under warrant "are not instructive." Schmerber, 384 U.S. at 768.
Similarly, the examinations that may be made of shoes and other personal
effects are not instructive when determining whether limitations on the testing of
blood are required by the Fourth Amendment or article I, section 7.
In light of our society's concern for the security of one's person, it has long
been recognized that a compelled intrusion into the body for blood to be
8 No. 69663-7-1/9
analyzed for alcohol content is a search. Skinner v. Ry. Labor Exec's. Ass'n, 489
U.S. 602, 616, 109 S. Ct. 1402, 103 L Ed. 2d 639 (1989), citing Schmerber, 384
U.S. at 767-68; State v. Judge. 100 Wn.2d 706, 711, 675 P.2d 219 (1984)
(following Schmerber). "It is obvious that this physical intrusion, penetrating
beneath the skin, infringes an expectation of privacy that society is prepared to
recognize as reasonable." Skinner, 489 U.S. at 616. According to Skinner, the
testing of the blood constitutes a second search. "The ensuing chemical analysis
of the sample to obtain physiological data is a further invasion of the tested
employee's privacy interests." Skinner. 489 U.S. at 616 (emphasis added).
Following Skinner, this court has held that in the context of government
employment, the collection and testing of urine invades privacy in at least two
distinct ways:
The invasion in fact is twofold: first, the taking of the sample, which is highly intrusive, and second, the chemical analysis of its contents—which may involve still a third invasion, disclosure of explanatory medical conditions or treatments.
Robinson v. City of Seattle. 102 Wn. App. 795, 822 n.105, 10 P.3d 452 (2000).
The State does not discuss Skinner and Robinson. The State contends,
however, that under Schmerber, the right to seize blood from a drunk driving
suspect encompasses the right to conduct a blood-alcohol test at some later
time. For this proposition, the State relies on United States v. Snyder. 852 F.2d
471t 474 (9th Cir. 1988). In Snyder, a drunk driving case, blood was drawn
without a warrant under the exigency exception to the Fourth Amendment. The
defendant argued that police had to seek a warrant for testing after the blood had No. 69663-7-1/10
been extracted. The court rejected the argument and explained that the seizure
and testing of the blood amounted to "a single event" under Schmerber:
The flaw in Snyder's argument is his attempt to divide his arrest, and the subsequent extraction and testing of his blood, into too many separate incidents, each to be given independent significance for fourth amendment purposes. He would have us hold that his person was seized when he was arrested, his blood was seized again upon extraction at the hospital, and finally his blood was searched two days later when the blood test was conducted. It seems clear, however, that Schmerber viewed the seizure and separate search of the blood as a single event for fourth amendment purposes.
Snyder. 852 F.2d at 473-74.
Snyder does not control our analysis in this case. The court did not
consider whether the Fourth Amendment permits a per se rule allowing unlimited
testing upon a lawfully obtained blood sample. The State's argument in this case
demands just such a per se rule. In addition, because the blood was drawn
under the exigency exception to the warrant requirement, the Snyder court did
not consider whether a warrant that expressly authorizes a blood draw should
also expressly authorize and limit the purposes for which testing can be
conducted. Finally, Skinner had not yet been decided and the Snyder court did
not have a precedent indicating that chemical analysis of blood is an independent
invasion of privacy.
Physical characteristics which are knowingly exposed to the public are not
subject to Fourth Amendment protection. Katz, 389 U.S. at 351; Athan, 160
Wn.2d at 374. Thus, one has no reasonable expectation of privacy in one's
voice, fingerprints, handwriting, or facial characteristics. United States v.
Dionisio, 410 U.S. 1, 14, 93 S. Ct. 764, 771, 35 L Ed. 2d 67 (1973) ("No person
10 No. 69663-7-1/11
can have a reasonable expectation that others will not know the sound of his
voice, any more than he can reasonably expect that his face will be a mystery to
the world.")
Blood is not like a voice or a face or handwriting or fingerprints or shoes.
The personal information contained in blood is hidden and highly sensitive.
Testing of a blood sample can reveal not only evidence of intoxication, but also
evidence of disease, pregnancy, and genetic family relationships or lack thereof,
conditions that the court in Skinner referred to as "private medical facts."
Skinner, 489 U.S. at 617. Citizens of this state have traditionally held, and
should be entitled to hold, this kind of information safe from governmental
trespass.
Consistent with Skinner and Robinson, we conclude the testing of blood
intrudes upon a privacy interest that is distinct from the privacy interests in bodily
integrity and personal security that are invaded by a physical penetration of the
skin. It follows that the testing of blood is itself a search, and we so hold.
Because the testing of blood is a search, a warrant is required. Riley v.
California. No. 13-132, slip op. at 5 (S. Ct. June 25, 2014) (where a search is
undertaken by law enforcement officials to discover evidence of criminal
wrongdoing, reasonableness generally requires the obtaining of a judicial
warrant). There are two distinct constitutional protections served by the warrant
requirement. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022,
2038-39, 29 L. Ed. 2d 564 (1971). First, the magistrate's scrutiny is intended to
eliminate altogether searches not based on probable cause. The second, distinct
11 No. 69663-7-1/12
objective is that those searches deemed necessary "should be as limited as
possible" so as to prevent the "rummaging in a person's belongings" that the
colonists so abhorred. Coolidge. 403 U.S. at 467. The particularity requirement
serves this second objective. A warrant ensures that a search will be "carefully
tailored to its justifications, and will not take on the character of the wide-ranging
exploratory searches the Framers intended to prohibit." Maryland v. Garrison.
480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). A properly
particularized warrant serves the dual function of limiting the executing officer's
discretion and informing the person subject to the search what items the officer
may seize. State v. Riley. 121 Wn.2d 22, 29, 846 P.2d 1365 (1993).
Where the State has probable cause to suspect driving under the
influence, the requirement to obtain a particularized warrant for blood testing will
prevent the State from rummaging among the various items of information
contained in a blood sample for evidence unrelated to drunk driving. For
example, when a blood sample is obtained in the course of investigating driving
under the influence, the State may not—without further warrant—use the sample
to produce a DNA profile that can be added to government data banks.
Here the warrant obtained by the trooper could easily have been written to
authorize testing the blood for evidence of alcohol and drug intoxication, but it
contained no such language. As written, the warrant did not authorize testing at
all. It did not limit the trooper's discretion to searching the blood sample only for
evidence of alcohol or drugs. Nor did it serve to inform Martines that the testing
12 No. 69663-7-1/13
would be limited to evidence of alcohol or drug consumption.2 The testing that
occurred in the toxicology lab was a warrantless search.
We presume that a warrantless search violates both the Fourth
Amendment to the United States Constitution and article 1, section 7 of the
Washington State Constitution. State v. Day. 161 Wn.2d 889, 893, 168 P.3d
1265 (2007). The State can rebut the presumption by showing that an exception
to the warrant requirement applies. Day, 161 Wn.2d 894. The State does not
claim there is an exception to the warrant requirement that would apply in this
case. Because the blood test results were obtained without a warrant, they
should have been suppressed. State v. White, 97 Wn.2d 92, 640 P.2d 1061
(1982).
Error in admitting evidence obtained through an unconstitutional search is
subject to the constitutional harmless error test of Chapman v. California. 386 U.S.
18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v. Peele. 10 Wn. App. 58, 66,
516 P.2d 788 (1973). review denied, 83Wn.2d 1014(1974). Constitutional error is
presumed to be prejudicial and the State bears the burden of proving that the error
2An overbroad warrant may be cured where the affidavit and the search warrant are physically attached and the warrant expressly refers to the affidavit and incorporates it with "'suitable words of reference.'" Riley, 121 Wn.2d at 29, quoting Bloom v. State, 283 So.2d 134, 136 (Fl. Dist. Ct. App. 1973). Though the issue was not briefed, we have considered whether the deficiencies in the warrant can be cured by recourse to the probable cause affidavit. The affidavit states that a sample of blood from Martines "may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive," and the warrant incorporates by reference the testimonial evidence given to the court. But it is not clear in the record that the affidavit was physically attached to the warrant. The State has not briefed the case under Riley and has not asked us to affirm the conviction on that narrow technical ground. 13 No. 69663-7-1/14
was harmless. State v. Watt. 160 Wn.2d 626, 635, 160 P.3d 640 (2007). The
State does not offer a harmless error analysis. Presenting the test results was a
major focus of the trial, and the prosecutor relied on them in closing. Under the
circumstances, we cannot conclude the admission of the alcohol and drug test
results was harmless.
The conviction is reversed.
WE CONCUR: