State v. Houey

651 S.E.2d 314, 375 S.C. 106, 2007 S.C. LEXIS 333

• Court: Supreme Court of South Carolina
• Decided: September 10, 2007
• Docket: 26381
• Status: Published

Opinions

Justice PLEICONES:

Ronte Houey (Appellant) was charged with second-degree criminal sexual conduct with a minor (CSCM). The solicitor moved pursuant to S.C.Code Ann. § 16-3-740(B) (2003) for an order requiring Appellant to submit to testing for HIV and other diseases. The circuit court ordered the testing, and we affirm.

FACTS

After Appellant was arrested and charged with second-degree CSCM, the solicitor, at the request of the victim’s legal guardian, moved for an order requiring Appellant to submit to HIV and other STD testing pursuant to S.C.Code Ann. § 16-S^OCB).¹ Appellant opposed the motion, arguing the State must first demonstrate probable cause that Appellant actually carries the disease before testing may be ordered. He claimed the failure of § 16-8-740(B) to require such a probable cause determination resulted in an unconstitutional invasion of his privacy. Appellant also argued the statute was unconstitutionally vague.

The circuit court issued an order requiring Appellant to be tested, finding any alleged constitutional violations were irrelevant in light of the State’s stipulation that it would not use the test results during trial. The circuit court also found that testing ordered pursuant to § 16-3-740(B) did not violate Appellant’s constitutional rights.

ISSUES

1. Does S.C.Code Ann. § 16-3-740(B) require the State to establish probable cause that a suspect is actually infected with a disease before testing may be ordered?

2. Is S.C.Code Ann. § 16-3-740(B) unconstitutionally vague?

1. PROBABLE CAUSE

Appellant asserts § 16-3-740(B) permits a search of an individual’s bodily fluids without a probable cause determination the defendant is actually infected. As such, he argues it violates Fourth Amendment guarantees against unreasonable searches and seizures, as well as Article I, section 10 of the South Carolina Constitution. We disagree.²

Section 16-3-740(B) provides:

(B) Upon the request of a victim who has been exposed to body fluids during the commission of a criminal offense, or upon the request of the legal guardian of a victim who has been exposed to body fluids during the commission of a criminal offense, the solicitor must, at any time after the offender is charged, or at any time after a petition has been filed against an offender in family court, petition the court to have the offender tested for Hepatitis B and HIV. An offender must not be tested under this section for Hepatitis B and HIV without a court order. To obtain a court order, the solicitor must demonstrate the following:

(1) the victim or the victim’s legal guardian requested the tests;

(2) there is probable cause that the offender committed the offense;

(3) there is probable cause that during the commission of the offense there was a risk that body fluids were transmitted from one person to another; and

(4) the offender has received notice of the petition and notice of his right to have counsel represent him at a hearing.

The results of the tests must be kept confidential and disclosed only to the solicitor who obtained the court order. The solicitor shall then notify only those persons designated in subsection (C).

S.C.Code Ann. § 16-3-740(B).

The State concedes the testing of blood is a search within the ambit of the Fourth Amendment. See Skinner v. Ry. Lab. Exec., 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); State v. Baccus, 367 S.C. 41, 53, 625 S.E.2d 216, 222 (2006). However, the United States Supreme Court has used a special needs analysis, rather than a traditional probable cause inquiry, in cases where testing of bodily fluids was sought not as part of a criminal investigation, but rather to promote other important state interests.³

The special needs exception allows a search unsupported by probable cause when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirements of the Fourth Amendment impracticable. Skinner; supra at 619, 109 S.Ct. 1402. In “special needs” cases, where the object of the search is not to discover evidence to be used at a criminal trial, the State’s need to search must be balanced against the invasion occasioned by the search, and the search will be reasonable if the State’s interest outweighs the interest of the individual. Adams v. State, 269 Ga. 405, 498 S.E.2d 268, 271 (1998) (citing Skinner, supra at 619, 109 S.Ct. 1402).

We must first determine whether a special need exists which allows the State to test an offender pursuant to § 16-3-740(B). We find that the State has a valid interest in protecting the health and safety of victims. Moreover, since § 16-3-740(C) requires counseling for the offender and counseling for the victim at the victim’s request, the statute furthers the State’s interest in stemming the spread of HIV and Hepatitis B through education and counseling. As stated by the Illinois Supreme Court:

There are few, if any, interests more essential to a stable society than the health and safety of its members. Toward that end, the State has a compelling interest in protecting and promoting public health and, here, in adopting measures reasonably designed to prevent the spread of AIDS.... Once persons who are carriers of the virus have been identified, the victims of their conduct and the offenders themselves can receive necessary treatment, and, moreover, can adjust their conduct so that other members of the public do not also become exposed to HIV. In this way, the spread of AIDS through the community can be slowed, if not halted. We believe that the HIV testing requirement advances a special governmental need.

People v. Adams, 149 Ill.2d 331, 173 Ill.Dec. 600, 597 N.E.2d 574, 580-581 (1992) (cited in Adams v. State, supra).

In relation to Appellant’s privacy interest, the Fourth Amendment permits minor intrusions by the State into an individual’s body under stringently limited conditions. State v. Allen, 277 S.C. 595, 597, 291 S.E.2d 459, 460 (1982). Although § 16-3-740(B) does not specify how the offender should be tested, the statute has a provision for additional testing by blood, saliva, and head or pubic hair. S.C.Code Ann. § 16-3-740(F). Regardless of the manner tested pursuant to this section, Appellant has a nominal privacy interest in being free from HIV and Hepatitis B testing, even where such minimally invasive testing is done only for health reasons outside the context of a criminal investigation.

Where the privacy interests implicated by the search are minimal, and where an important non-criminal governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. Skinner, supra at 624, 109 S.Ct. 1402. Such is the case here. The State’s interest in these cases would be jeopardized by requiring individualized suspicion because it would be nearly impossible to show probable cause that an offender suffers from HIV or Hepatitis B, since neither disease usually manifests clear outward symptoms. Thus, the statute does not violate the Fourth Amendment by failing to require probable cause that the offender has HIV or Hepatitis B before a court may order testing pursuant to § 16-3-740(B).

While the Fourth Amendment does not require probable cause and a warrant where special needs exist, our legislature has acted to provide extra protection. Under § 16-3-740(B), both probable cause AND a court order are required before an offender may be tested. Our holding today that the special needs exception applies to the issue of particularized suspicion does not render these statutory prerequisites impracticable or unnecessary.

Appellant’s argument that § 16-3-740(B) is unconstitutional under the South Carolina Constitution also fails. Although our constitution favors a higher level of privacy protection than the Fourth Amendment, State v. Forrester, 343 S.C. 637, 541 S.E.2d 837 (2001), the testing at issue here is not overly intrusive or so unreasonable as to render the statute violative of the South Carolina Constitution.

Accordingly, we hold that probable cause based on individualized suspicion that an offender carries HIV or Hepatitis B is not required by the Fourth Amendment of the United States Constitution or by Article I, section 10, of the South Carolina Constitution.

2. VAGUENESS

Appellant also contends § 16-3-740(B) is unconstitutionally vague, inasmuch as it allows testing without regard to the timing of an alleged crime. Appellant’s argues that since there is no requirement of immediate testing of a suspect, any test result may not necessarily be indicative of the suspect’s condition at the time of the alleged assault. We disagree.

The void-for-vagueness doctrine rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. Peterson Outdoor Advert. v. City of Myrtle Beach, 327 S.C. 230, 236, 489 S.E.2d 630, 633 (1997). As to civil standards, there appears a less stringent test than that applied in criminal contexts. See Village of Hoffman Est., 455 U.S. 489, 498-499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (stating criminal statutes, in general, face a higher vagueness standard than do civil statutes because the consequences of imprecision in the latter are qualitatively less severe).

Appellant’s arguments regarding the timing of testing address evidentiary concerns in the context of the criminal proceeding. Appellant’s concerns are not relevant in light of the State’s interest in preventing the spread of HIV and Hepatitis B and the State’s interest in protecting the health of alleged victims. These interests are advanced regardless of the time of testing. Accordingly, we find no constitutional violation due to vagueness.

CONCLUSION

We hold that the State need not show probable cause that an offender has a disease before testing may be ordered pursuant to § 16-3-740(B), provided the statutory requirements have been met. In addition, § 16-3-740(B) is not unconstitutionally vague. The circuit court’s order is

AFFIRMED.

TOAL, C.J., and Acting Justice E.C. Burnett, III, concur. WALLER, J., concurring in result only in a separate opinion in which MOORE, J., concurs.

1 . Despite the caption which implies sexually transmitted diseases are included, § 16-3-740(B) only allows for petitions for court orders to have an offender tested for Hepatitis B and HIV.

2 . Initially, we find the circuit court erred by holding any potential constitutional violation would be harmless given the State’s agreement not to use the test results against Appellant. The agreement is irrelevant because § 16-3-740(1) precludes admission of test results gathered pursuant to subsection (B) in the offender’s criminal trial. Nonetheless, we do not believe the testing violated Appellant’s constitutional rights.

3 . See Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) (analyzing Georgia statute requiring drug tests of candidates for state office); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (analyzing school district's requirement that student athletes be tested for drug use); Natl. Treas. Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (analyzing United States Customs Service employee drug testing program); and Skinner, supra (analyzing Federal Railroad Administration employee drug testing program).