State v. Olsen

• Court: Washington Supreme Court
• Decided: August 3, 2017
• Docket: 93315-4
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

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SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) Respondent, ) No. 93315-4 ) v. ) En Banc ) BRITTANIE J. OLSEN, ) ) Filed AUG O3 2.617 Petitioner. ) __________ )

OWENS, J. - At issue in this case is whether a court may require a

probationer convicted of driving under the influence (DUI) to submit to random

urinalysis testing (UAs) for controlled substances. In particular, this issue centers on

whether this testing violates DUI probationers' privacy interests under article I,

section 7 of our state constitution. Random UAs do implicate a probationer's

reduced privacy interests. But here, where urinalysis was authorized to monitor

compliance with a valid probation condition requiring Olsen to refrain from drug and

alcohol consumption, the testing does not violate article I, section 7. Accordingly,

we affirm the Court of Appeals. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

FACTS

The facts are undisputed. In June 2014, Brittanie Olsen pleaded guilty in

Jefferson County District Court to one count of DUI, a gross misdemeanor offense

under RCW 46.61.502. The court imposed a sentence of 364 days of confinement

with 334 days suspended. As a condition of her suspended sentence, the court

ordered that Olsen not consume alcohol, marijuana, or nonprescribed drugs. Over

defense objection, the court also required Olsen to submit to "random urine

analysis screens ... to ensure compliance with conditions regarding the

consumption of alcohol and controlled substances." Clerk's Papers (CP) at 5.

Olsen appealed to Jefferson County Superior Court, arguing that the random

UAs requirement violated her privacy rights under the Fourth Amendment to the

United States Constitution and article I, section 7 of the Washington Constitution.

She contended a warrantless search of a misdemeanant probationer may not be

random but instead "must be supported by a well-founded suspicion that the

probationer has violated a condition of her sentence." CP at 7. The court agreed,

vacated Olsen's sentence, and remanded to the district court for resentencing

without the requirement that Olsen submit to random urine tests.

The State appealed, and the Court of Appeals reversed, holding that

"offenders on probation for DUI convictions do not have a privacy interest in

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

preventing the random collection and testing of their urine when used to ensure

compliance with a probation condition prohibiting the consumption of alcohol,

marijuana, and/or nonprescribed drugs." State v. Olsen, 194 Wn. App. 264, 272,

374 P.3d 1209 (2016). Olsen then petitioned this court for review, which was

granted. State v. Olsen, 186 Wn.2d 1017, 383 P.3d 1020 (2016).

ISSUE

Do random UAs ordered to monitor compliance with a valid probation

condition not to consume drugs or alcohol violate a DUI probationer's privacy

interests under article I, section 7 of the Washington Constitution?

ANALYSIS

The Washington State Constitution provides that "[n]o person shall be

disturbed in his private affairs, or his home invaded, without authority of law."

CONST. art. I, § 7. It is well established that in some areas, this provision provides

greater protection than the Fourth Amendment, its federal counterpart. York v.

Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 306, 178 P. 3d 995 (2008)

(plurality opinion).

One area of increased protection is the collection and testing of urine. Id. at

307. Compared to the federal courts, "we offer heightened protection for bodily

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

1 functions." Id. Washington courts have generally held that for ordinary citizens,

suspicionless urinalysis testing constitutes a disturbance of one's private affairs

that, absent authority of law, violates article I, section 7. Id. at 316 (holding that

suspicionless urinalysis tests of student athletes violate article I, section 7);

Robinson v. City of Seattle, 102 Wn. App. 795, 811, 10 P .3d 452 (2000) (holding

that preemployment UAs for jobs that do not directly relate to public safety violate

article I, section 7).

On the other hand, we have repeatedly upheld blood or urine tests of

prisoners, probationers, and parolees without explicitly conducting an analysis

under article I, section 7. For example, in In re Juveniles A, B, C, D, E, we upheld

HIV (human immunodeficiency virus) tests of convicted felons without

individualized suspicion, but decided the case under the Fourth Amendment

instead of our state constitutional provision. 121 Wn.2d 80, 98, 847 P.2d 455

(1993); see also State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993) (DNA

(deoxyribonucleic acid) blood testing of convicted felons). In other cases, lower

courts have upheld random drug testing of probationers or parolees on statutory

1 The parties seem to agree that article I, section 7 provides greater protection than the Fourth Amendment in this context. Accordingly, they do not analyze the issue under the federal constitution. Neither party has suggested performing an analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986) to determine whether article I, section 7 provides broader protection than the Fourth Amendment under the specific facts of this case.

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

grounds, without examining the question under either constitution. See, e.g., State

v. Acevedo, 159 Wn. App. 221,234,248 P.3d 526 (2010); State v. Vant, 145 Wn.

App. 592, 603-04, 186 P.3d 1149 (2008).

We have not, however, directly addressed the issue under our state

constitutional provision. Two inquiries are implicit in an article I, section 7 claim:

(1) whether the contested state action "disturbed" a person's "private affair[s]"

and, if so, (2) whether the action was undertaken with "authority of law." State v.

Reeder, 184 Wn.2d 805, 814, 365 P.3d 1243 (2015). "Part of this inquiry focuses

on what kind of protection has been historically afforded to the interest asserted,

and part of it focuses on the nature and extent of the information that may be

obtained as a result of government conduct." Id. (citing State v. Miles, 160 Wn.2d

236, 244, 156 P.3d 864 (2007)).

A. UAs Implicate a DUI Probationer's Privacy Interests

We first look to whether UAs disturb DUI probationers' "private affairs."

More specifically, we consider whether providing a urine sample is among '"those

privacy interests which citizens of this state have held, and should be entitled to

hold, safe from governmental trespass."' Id. (quoting In re Pers. Restraint of

Maxfield, 133 Wn.2d 332, 339, 945 P.2d 196 (1997)).

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

We have consistently held that the nonconsensual removal of bodily fluids

implicates privacy interests. York, 163 Wn.2d at 307; Juveniles, 121 Wn.2d at 90;

Olivas, 122 Wn.2d at 83; State v. Curran, 116 Wn.2d 174, 184, 804 P.2d 558

(1991), abrogated on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d

700 (1997). UAs implicate privacy interests in two ways. First, the act of

providing a urine sample is fundamentally intrusive. This is particularly true

where urine samples are collected under observation to ensure compliance. 2 See

York, 163 Wn.2d at 308 ("Even if done in an enclosed stall, this is a significant

intn1sion on a student's fundamental right of privacy."). Second, "chemical

analysis of urine, like that of blood, can reveal a host of private medical facts about

[a person], including whether he or she is epileptic, pregnant, or diabetic." Skinner

v. Ry. Labor Executives' Ass'n, 489 U.S. 602,617,109 S. Ct. 1402, 103 L. Ed. 2d

639 (1989). These privacy interests are precisely what article I, section 7 is meant

2 The record does not contain details of the procedure used in this case, but direct observation of urination is a common requirement for UAs conducted in the criminal justice system. See, e.g., U.S. DEP'T OF JUSTICE OFFICE OF JUSTICE PROGRAMS, BUREAU OF JUSTICE ASSISTANCE, AMERICAN PROBATION AND PAROLE ASSOCIATION'S DRUG TESTING GUIDELINES FOR PRACTICES FOR ADULT PROBATION AND PAROLE AGENCIES 42-43 (1991) (providing for "direct observation of the collection process"), https:// https://www.appa-net.org/eweb/docs/appa/pubs/DTGPAPP A.pdf [https://perma.cc/Y33J-BYY7]; KING COUNTY DRUG DIVERSION COURT, PARTICIPANT HANDBOOK 8 (2015) ("The observed collection and scientific testing of your urine for drngs, alcohol, and other mood-altering substances is an important part of [drng diversion court]."), http://www.kingcounty.gov/-/media/ courts/Clerk/drngCourt/documents/K.CD DC_Participant_H andbook.ashx?la=en [https://perma.cc/UT69-GJXA].

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No.93315-4

to protect. See State v. Jorden, 160 Wn.2d 121, 126, 156 P.3d 893 (2007) ("[A]

central consideration [under article I, section 7] is ... whether the information

obtained via the governmental trespass reveals intimate or discrete details of a

person's life.").

However, probationers do not enjoy constitutional privacy protection to the

same degree as other citizens. Probationers have a reduced expectation of privacy

because they are "persons whom a court has sentenced to confinement but who are

serving their time outside the prison walls." State v. Jardinez, 184 Wn. App. 518,

523, 338 P.3d 292 (2014); see also State v. Simms, 10 Wn. App. 75, 82, 516 P.2d

1088 (1973) (parolees and probationers still "in custodia legis" until expiration of

maximum term of sentence). Therefore, the State may supervise and scrutinize a

probationer more closely than it may other citizens. State v. Lucas, 56 Wn. App.

236,240, 783 P.2d 121 (1989); State v. Parris, 163 Wn. App. 110, 117,259 P.3d

331 (2011 ). However, "this diminished expectation of privacy is constitutionally

permissible only to the extent 'necessitated by the legitimate demands of the

operation of the parole process."' Parris, 163 Wn. App. at 11 7 (internal quotation

marks omitted) (quoting Simms, 10 Wn. App. at 86).

Nevertheless, relying on State v. Surge, 160 Wn.2d 65, 156 P.3d 208 (2007)

(plurality opinion), the State argues that UAs do not implicate Olsen's privacy

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interests because probationers lack any privacy interest in their urine. We

disagree. Even though misdemeanant probationers have a reduced expectation of

privacy, this does not mean that they have no privacy rights at all in their bodily

fluids.

In Surge, we considered the constitutionality of a statute that authorized the

collection of convicted felons' DNA for identification purposes. Id. at 69. A

plurality held that the statute is constitutional, reasoning that incarcerated felons

lack a privacy interest in their identities due to their status. But Surge is

distinguishable from this case. First, it involved incarcerated felons, not

misdemeanant probationers. Id. at 72. Further, the lead opinion in Surge

emphasized that the DNA test was only for identification purposes. Id. at 79 ("the

statute does not unconstitutionally authorize disturbance of an individual's bodily

integrity by allowing the DNA results to be used for purposes other than identity").

The UAs here gather information beyond the probationer's identity by analyzing

urine for the presence of controlled substances. Although these tests are meant to

enforce probation conditions, they also collect evidence for possible revocation

hearings, implicating the probationer's liberty interests. See Simms, IO Wn. App.

at 83-84 (probationers have an interest in their continued liberty). Surge does not

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

support the State's argument that DUI probationers lack any privacy interest

whatsoever in their urine.

In sum, even though probationers do not enjoy the same expectation of

privacy as other citizens, the UAs here still implicate their reduced privacy

interests under article I, section 7.

B. Random UAs ofDUI Probationers Do Not Violate Article I, Section 7 Because They Are Conducted with Authority of Law

Next, we turn to the second step of our inquiry under article I, section 7:

whether the invasion is performed with authority of law. The government has a

compelling interest in disturbing Olsen's privacy interest in order to promote her

rehabilitation and protect the public. The random testing here is narrowly tailored

to monitor compliance with a validly imposed probation condition. Thus, the

judgment and sentence constitutes sufficient "authority of law" to require random

UAs here.

Typically, under article I, section 7, an intrusion into an individual's private

affairs is conducted with authority of law when it is supported by a warrant or a

recognized exception to the warrant requirement. York, 163 Wn.2d at 310. But

because probationers have a reduced expectation of privacy, the State does not

need a warrant, an applicable warrant exception, or even probable cause to search a

probationer. See Lucas, 56 Wn. App. at 243-44. However, as discussed above,

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probationers do not forfeit their rights entirely and thus some authority of law must

still justify the intrusion into their reduced expectation of privacy. See Parris, 163

Wn. App. at 117.

We have examined what constitutes "authority of law" to drug test "ordinary

citizens," striking down suspicionless drug testing of students and other members

of the public. For example, in York, a plurality of this court held that no authority

of law justified drug testing of student athletes. 163 Wn.2d at 315. We noted that

student athletes' privacy interests differ from those of convicted offenders, as

students have "merely attended school and chosen to play extracurricular sports."

Id.; see also Kuehn v. Renton Sch. Dist. No. 403, 103 Wn.2d 594,602,694 P.2d

1078 (1985) (plurality opinion) (school officials violated article I, section 7 when

they mandated across the board search of luggage as a condition of participating in

band concert tour). The lead opinion also declined to adopt a doctrine akin to the

federal "special needs" exception in the context of randomly drug testing student

athletes. York, 163 Wn.2d at 316; see also Griffin v. Wisconsin, 483 U.S. 868, 873,

107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (defining the federal "special needs"

exception).

But DUI probationers are distinguishable from student athletes. Olsen was

convicted of a crime and is still in the State's legal custody. Simms, 10 Wn. App.

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at 82. She has a duty to engage in her rehabilitation in exchange for the privilege

of being relieved from jail time and "should expect close scrutiny" of her conduct.

Lucas, 56 Wn. App. at 241; see also City of Spokane v. Marquette, 146 Wn.2d 124,

132, 43 P.3d 502 (2002). Her privacy interests are more constrained than those of

a student athlete or a performer.

Justices of this court have suggested a balancing test may be appropriate to

evaluate whether there is "authority of law" in these circumstances. In Surge,

Justice Fairhurst suggested a compelling interests test, stating that "[ o]utside the

law enforcement context, this court applies a two-part, narrowly tailored

compelling state interest test to determine whether state intrusions of autonomous

decision making privacy interests were conducted under authority oflaw." 160

Wn.2d at 91 (Fairhurst, J., concurring in the dissent); see also Juveniles, 121

Wn.2d at 97-98; State v. Farmer, 116 Wn.2d 414, 430-31, 805 P.2d 200 (1991);

Robinson, 102 Wn. App. at 816-18. In York, Justice J.M. Johnson suggested a

similar test, noting that "a constitutional program of random suspicionless drug

testing of student athletes should advance compelling interests, show narrow

tailoring, and employ a less intrusive method of testing." 163 Wn.2d at 342 (J.M.

Johnson, J., concurring).

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We find these considerations useful here, in light of probationers'

significantly reduced expectation of privacy and the unique nature and

rehabilitative goals of the probation system. We therefore examine whether a

compelling interest, achieved through narrowly tailored means, supports the

intrusion into a DUI probationer's reduced privacy interests.

1. The State Has a Strong Interest in Supervising DUI Probationers in Order To Promote Rehabilitation and Protect the Public

Probation is "simply one point (or, more accurately, one set of points) on a

continuum of possible punishments." Griffin, 483 U.S. at 874. It is not a right, but

"an act of judicial grace or lenience motivated in part by the hope that the offender

will become rehabilitated." Gillespie v. State, 17 Wn. App. 363, 366-67, 563 P.2d

1272 (1977) (citing State ex rel. Woodhouse v. Dore, 69 Wn.2d 64,416 P.2d 670

(1966)). A sentencing court has great discretion to impose conditions and

restrictions of probation to "assure that the probation serves as a period of genuine

rehabilitation and that the community is not harmed by the probationer's being at

large." Griffin, 483 U.S. at 875; see also State v. Summers, 60 Wn.2d 702, 707,

375 P.2d 143 (1962).

As such, the State has a compelling interest in closely monitoring

probationers in order to promote their rehabilitation. Parris, 163 Wn. App. at 117.

As probation officers' role is "rehabilitative rather than punitive in nature," they

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must, then, have tools at their disposal in order to accurately assess whether

rehabilitation is taking place. State v. Reichert, 158 Wn. App. 374, 387, 242 P.3d

44 (2010); see also Simms, 10 Wn. App. at 85 (probation officers' duties differ

from police officers "'ferreting out crime"' (quoting Johnson v. United States, 333

U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948))).

The State has a duty not just to promote and assess the rehabilitation of a

probationer, but also to protect the public. State v. Kuhn, 7 Wn. App. 190, 194,

499 P.2d 49 (1972) ("[i]n granting or denying probation, the judge makes the

delicate balance of protecting the rights of the public and providing for the

rehabilitation of the offender"). The public safety risk here is substantial: fatalities

in crashes involving alcohol-impaired drivers continue to represent almost one-

third (31 percent) of the total motor vehicle fatalities in the United States. In

Washington, the proportion is even higher than the national average: impaired

driving is one of the leading contributors to highway deaths and major injuries. 3

Offender treatment and monitoring, however, are effective countermeasures to

prevent driving fatalities and reduce recidivism. See generally U.S. DEP'T OF

3 See WASH. STATE DEP'T OF TRANSP., WASHINGTON STATE STRATEGIC HIGHWAY SAFETY PLAN 6 (2013), https://www.wsdot.wa.gov/NR/rdonlyres/5FC5452D-8217-4F20-B2A9- 080593625C99/0/TargetZeroPlan.pdf [https://perma.cc/V2HW-XA4M]; MOTHERS AGAINST DRUNK DRIVING, 2013 Drunk Driving Fatalities by State (drunk driving cause of 34 percent of traffic deaths in Washington in 2013), http://www.madd.org/blog/2014/december/2013-drunk- driving-fatalities.html [https://perma.cc/KTF4-L75B] (last visited July 27, 2017).

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TRANSP., NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., COUNTERMEASURES THAT

WORK: A HIGHWAY SAFETY COUNTERMEASURE GUIDE FOR STATE HIGHWAY

SAFETY OFFICES 1-4 (8th ed. 2015) (COUNTERMEASURES), https://www.nhtsa.gov/

sites/nhtsa. dot. gov/files/812202-countermeasuresthatworkSth. pdf [https ://perma.

cc/N4UC-6K8E].

Thus, the State has a compelling interest here in supervising a probationer in

order to assess his or her progress toward rehabilitation and compliance with

probation conditions. In the case of DUI probationers, monitoring and supervision

ensure that treatment is taking place and serve to protect the public in the case that

a probationer fails to comply with court-imposed conditions.

2. Random UAs Are Narrowly Tailored To Monitor Compliance with Another Probation Condition Next, we examine whether random UAs are a narrowly tailored means of

effectuating the State's goals. We find that here, random UAs are narrowly

tailored: they are a crucial monitoring tool that is limited in scope when imposed

only to assess compliance with a valid prohibition on drug and alcohol use.

a. Random UAs Are an Effective Monitoring Tool

We have approved of monitoring tools used to enforce a valid parole or

probation conditions. State v. Riles, 135 Wn.2d 326, 339, 342, 957 P.2d 655

(1998) (discussing polygraph testing and UAs ), abrogated on other grounds by

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

State v. Valencia, 169 Wn.2d 782,239 P.3d 1059 (2010); see also State v.

Combs, 102 Wn. App. 949, 952, 10 P.3d 1101 (2000) (concluding that polygraph

testing may be ordered to monitor offender's compliance with other conditions).

As the Court of Appeals discussed in detail, the trial court permissibly conditioned

Olsen's release on her agreement to refrain from drug and alcohol use. See RCW

3.66.067; RCW 46.61.5055; State v. Williams, 97 Wn. App. 257, 262-63, 983 P.2d

687 (1999). It follows that the trial court also has authority to monitor compliance

with that condition through narrowly tailored means.

Random UAs are a permissible means here. UAs are an important

monitoring tool utilized by courts during the rehabilitative process of probation.

See, e.g., Williams, 97 Wn. App. at 260 (authorizing requirement that probationer

submit to a breath test, blood test, or UA upon probation officer's request); KING

COUNTYDRUGDNERSIONCOURT,PARTICIPANTHANDBOOK 5-7 (2015) (drug court

participants required to participate in random, observed UAs)

http://www.kingcounty.gov/-/media/courts/Clerk/drug Court/documents/KCDDC _

Participant_Handbook.ashx?la=en [https ://perma.cc/UT69-GJXA]. Unannounced

testing is, arguably, crucial if a court is to impose drug testing at all. 4 Random

4 See U.S. DEP'T OF JUSTICE OFFICE OF JUSTICE PROGRAMS, DRUG COURT PROGRAM OFFICE, DRUG TESTING IN A DRUG COURT ENVIRONMENT: COMMON ISSUES TO ADDRESS (2000) (DRUG TESTING) (stating that the effective operation of a drug court program is premised on having the

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testing seeks to deter the probationer from consuming drugs or alcohol by putting

her on notice that drug use can be discovered at any time. It also promotes

rehabilitation and accountability by providing the probation officer with a

"practical mechanism to determine whether rehabilitation is indeed taking place."

Macias v. State, 649 S.W.2d 150, 152 (Tex. Crim. App. 1983) (weekly UAs).

Amicus curiae American Civil Liberties Union (ACLU) argues that random

UAs are unnecessary. As an alternative, it suggests that UAs should be permitted

only if a probation officer has a well-founded suspicion of a probation violation. It

points out that probation officers could detect alcohol or drug use by receiving a tip

or "tak[ing] note of drug paraphernalia or alcohol while visiting the probationer."

Br. of Amicus Curiae ACLU at 18. But such a standard would be impracticable

here. Drug or alcohol impairment can be difficult to detect by observation. See,

e.g., Skinner, 489 U.S. at 628-29. Additionally, as noted by the National Drug

Court Institute, "it is crucial that samples be collected in a random, unannounced

capacity to conduct frequent and random drng tests of participants, obtain test results immediately, and maintain a high degree of accuracy in test results), https ://www.ncjrs.gov/pdffiles 1/ojp/181103.pdf [https ://perma. cc/J7N9-C66P]; COUNTERMEASURES, supra, at 1-43 (driving while intoxicated offender monitoring, including randomized drng testing proven to reduce recidivism); AM. Soc'Y OF ADDICTION MED., DRUG TESTING: A WHITE PAPER OF THE AMERICAN SOCIETY OF ADDICTION MEDICINE 40 (2013) (random testing preferred over scheduled testing), https://www.asam.org/docs/default- source/public-po1icy-statements/drng-testing-a-white-paper-by-asam.pdf?sfvrsn=l25866c2_4 [https://perma.cc/C2PB-Q66DJ.

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manner," as random testing prevents individuals from planning ahead and avoiding

detection. 5 Requiring reasonable suspicion as a basis to test could make it

prohibitively difficult for the probation officer to carry out his or her

responsibilities of supervising the probationer and accurately assessing progress

toward rehabilitation. See State v. Zeta Chi Fraternity, 142 N.H. 16, 28, 696 A.2d

530 (1997) (citing State v. Berrocales, 141 N.H. 262, 681 A.2d 95 (1996)).

b. The Judgment and Sentence Limits the Scope of the Random UAs To Monitor Compliance with a Valid Probation Condition

Amicus curiae also argues that allowing random UAs of DUI probationers

would open the door to permitting random, suspicionless searches of all

probationers. We disagree: random UAs are distinguishable from other, more

broad-sweeping probation conditions. The judgment and sentence here limits the

scope of the testing to monitor compliance with a valid restriction on drug and

alcohol use.

It is true that there are a host of cases in which lower courts analyzed other

parole and probation conditions and found that in those contexts, reasonable

suspicion is required to search the offender's home, vehicle, or electronic devices.

5 NAT'L DRUG COURT INST., THE DRUG COURT JUDICIAL BENCHBOOK 121, https ://www.ndci.org/wp-content/uploads/14146_NDCI_Benchbook_v6. pdf [https://perma.cc/36L3-XHMR]; see also DRUG TESTING, supra, at 10.

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See Jardinez, 184 Wn. App. at 523-24 (search of parolee's iPod); Parris, 163 Wn.

App. at 117 (search of memory cards found in parolee's room); State v. Massey, 81

Wn. App. 198, 199, 913 P.2d 424 (1996) (parolee ordered to '"submit to testing

and searches of [his] person, residence and vehicle"' (alteration in original));

Lucas, 56 Wn. App. at 240 (search of probationer's home); State v. Lampman, 45

Wn. App. 228,233, 724 P.2d 1092 (1986) (search of probationer's purse); State v.

Keller, 35 Wn. App. 455, 457, 667 P.2d 139 (1983) (search of residence pursuant

to condition that "'[d]efendant shall submit to a search of residence, person and

vehicle upon request'"); State v. Coahran, 27 Wn. App. 664, 666-67, 620 P.2d 116

(1980) (search of parolee's truck). Courts require reasonable suspicion for such

searches in part because these intrusions run the risk of exposing a large amount of

private information.

As discussed above, UAs can also potentially reveal a variety of private facts

about a person. Skinner, 489 U.S. at 617. However, the judgment and sentence

here explicitly authorizes random UAs only to "ensure compliance with conditions

regarding the consumption of alcohol and controlled substances." CP at 5;

Williams, 97 Wn. App. at 263-64. While the record does not contain information

about the specific procedure used to conduct the UAs, we apply a commonsense

reading to the judgment and sentence and find that it authorizes urinalysis only to

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

test for drugs and alcohol. See State v. Figeroa Martines, 184 Wn.2d 83, 93, 355

P.3d 1111 (2015) (applying a commonsense reading to warrant and concluding it

authorized tests performed to detect the presence of drugs or alcohol). It impliedly

limits the scope of the testing to monitor only Olsen's compliance with an

underlying probation condition. See Combs, 102 Wn. App. at 953 (scope of

community placement order impliedly limits scope of polygraph testing).

Olsen was convicted of DUI, a crime involving the abuse of drugs and

alcohol. A probationer convicted of DUI can expect to be monitored for

consumption of drugs and alcohol, but should not necessarily expect broader-

ranging intrusions that expose large amounts of private information completely

unrelated to the underlying offense. For example, a probation condition

authorizing suspicionless searches of Olsen's home might turn up evidence of drug

and alcohol use, but would almost certainly reveal other, unrelated information

about her private affairs. See State v. Winterstein, 167 Wn.2d 620, 630, 220 P .3d

1226 (2009). But random UAs, if limited to monitoring for the presence of

alcohol, marijuana, or nonprescribed drugs, reveal a comparatively limited amount

of private information. Unlike a search of a home, the information potentially

revealed is directly linked to the "class of criminal behavior" that Olsen engaged

in. Juveniles, 121 Wn.2d at 92-93. Random UAs also run a smaller risk of

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

inadvertently exposing other private information unrelated to the underlying

prohibition on drug and alcohol use.

We also reiterate that DUI probationers have been sentenced to confinement

but are "serving their time outside the prison walls." Jardinez, 184 Wn. App. at

523. Keeping that in mind, UAs have the same privacy implications whether an

individual is serving her time in prison or on probation. A search of a

probationer's home, by comparison, has much wider-ranging privacy implications

than a search of a prisoner's cell. For example, a search of a residence implicates

not just the probationer's privacy, but potentially the privacy of third parties. In

Winterstein, we noted that third party privacy interests must be considered when

probation officers seek to search a probationer's residence, and held that probation

officers are required to have probable cause to believe that their probationers live

at the residence they seek to search. 167 Wn.2d at 630. But such considerations

are inapplicable in this context.

Accordingly, we hold that random UAs, under certain circumstances, are a

constitutionally permissible form of close scrutiny of DUI probationers. We find

that the testing here is a narrowly tailored monitoring tool imposed pursuant to a

valid prohibition on drug and alcohol use. Random UAs are also directly related to

a probationer's rehabilitation and supervision.

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

However, we clarify that our decision today does not mean that probationers

have no protection. Random UAs could potentially lack "authority of law" absent

a sufficient connection to a validly imposed probation condition or if the testing is

conducted in an unreasonable manner. We also reaffirm that general, exploratory

searches are not permissible under article I, section 7. See Kuehn, l 03 Wn.2d at

601-02 (general searches are "anathema to Fourth Amendment and Const. art. 1,

§ 7 protections"). As such, while we find that random UAs may be permissible in

order to monitor compliance with valid probation conditions, they may not be used

impermissibly as part of "a fishing expedition to discover evidence of other crimes,

past or present." Combs, 102 Wn. App. at 953.

CONCLUSION

While random UAs of DUI probationers do implicate privacy interests, the

UAs here are narrowly tailored and imposed to monitor compliance with a valid

probation condition. The judgment and sentence impliedly limits the scope of

testing to monitor only for alcohol and controlled substances. Taking into

consideration Olsen's reduced privacy interests as a probationer, we conclude that

the random UAs here were conducted with "authority of law" under article I,

section 7 of our state constitution. We affirm the Court of Appeals.

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen No. 93315-4

WE CONCUR:

22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

No. 93315-4

FAIRHURST, C.J. ( dissenting)-When the State collects and analyzes a

probationer's urine, it disturbs that probationer's private affairs. For decades,

Washington courts have held that similar intrusions bear the authority of law only

when supported by a reasonable suspicion that a probation condition has been

violated. This straightforward application of existing law should control our

decision here. But, uncomfortable with this result, the majority declines to apply the

law as it is and instead adopts a new test-cut from whole cloth and proposed by no

party in this case-to achieve its desired outcome. This change in the law diminishes

the promise of privacy enshrined in the Washington Constitution and confuses the

standard we use to evaluate probationary searches. For these reasons, I dissent.

I agree with the majority that although probationers have a reduced privacy

interest, a urinalysis test nevertheless implicates their privacy under article I, section

7 of the Washington Constitution. The remaining issue is whether this intrusion is

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

conducted with the authority of law. See Yorkv. Wahkiakum Sch. Dist. No. 200, 163

Wn.2d 297, 306, 178 P. 3d 995 (2008) (plurality opinion).

Typically, a search is conducted with the authority oflaw when it is supported

by a warrant or a recognized exception to the warrant requirement. Id. at 310. But

I agree with the majority that because probationers have a reduced expectation of

privacy, the State does not need a warrant, an applicable warrant exception, or even

probable cause to search a probationer. See State v. Lucas, 56 Wn. App. 236, 243-

44, 783 P.2d 121 (1989). Still, the State may not engage in suspicionless searches

of probationers. Id.; see also York, 163 Wn.2d at 314 ("[W]e have a long history of

striking down exploratory searches not based on at least reasonable suspicion.");

State v. Jorden, 160 Wn.2d 121, 127, 156 P.3d 893 (2007) ("[T]his court has

consistently expressed displeasure with random and suspicionless searches,

reasoning that they amount to nothing more than an impermissible fishing

expedition."). Instead, "[a] warrantless search of [a] parolee or probationer is

reasonable if an officer has well-founded suspicion that a violation has occurred."

State v. Parris, 163 Wn. App. 110,119,259 P.3d 331 (2011).

Indeed, every case addressing the issue has held that a warrantless search of a

probationer's person, residence, or effects must be based on a reasonable suspicion

that a probation violation has occurred. State v. Jardinez, 184 Wn. App. 518, 523-

24, 338 P.3d 292 (2014); Parris, 163 Wn. App. at 117; Lucas, 56 Wn. App. at 240;

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

State v. Lampman, 45 Wn. App. 228,233, 724 P.2d 1092 (1986); State v. Keller, 35

Wn. App. 455, 459-60, 667 P.2d 139 (1983); State v. Coahran, 27 Wn. App. 664,

666-67, 620 P.2d 116 (1980); State v. Simms, 10 Wn. App. 75, 85-86, 516 P.2d 1088

(1973). In State v. Massey, 81 Wn. App. 198, 200-01, 913 P.2d 424 (1996), the

Court of Appeals held that searches pursuant to a probation condition identical to

the one at issue here must be supported by reasonable suspicion. 1 I would hold that

probationary urinalysis tests are subject to the same requirement.

Reasonable suspicion is not an onerous burden. In this context, reasonable

suspicion is something less than probable cause and analogous to the requirements

of a Terry 2 stop-articulable facts and rational inferences suggesting a substantial

possibility that a probation violation has occurred. Parris, 163 Wn. App. at 119.

This minimal restraint on the State is intended to prevent arbitrary and capricious

searches. See Simms, 10 Wn. App. at 84 ("Considering the interest of the parolee in

his liberty and privacy, it would seem to be beyond question that to subject the

1 The Court of Appeals upheld the condition, explaining that although the language contained no "reasonable suspicion" requirement, the issue of the constitutionality of the condition was not ripe for review because the probationer had yet to be searched. Massey, 81 Wn. App. at 200. The court speculated that reasonable suspicion language might not be required in the probation condition, as courts have upheld other conditions without such language. Id. at 201 (citing Lucas, 56 Wn. App. at 237-38). Nevertheless, the court noted that "regardless of whether the sentencing court includes such language in its order, the standard for adjudicating a challenge to any subsequent search remains the same: Searches must be based on reasonable suspicion." Id. 2 Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

parolee to arbitrary and capricious searches at the whim of his parole officer would

be constitutionally impermissible.").

But the majority removes this minimal restraint, concluding that suspicionless

urinalysis tests are constitutionally permissible because they are narrowly tailored to

a compelling state interest. Majority at 20-21. Before today, this test was not the

law; it has been "Frankensteined" from parts scattered across concurrences that, at

the time, could not garner majority support from this court. 3 This new test brings

our jurisprudence closer to federal Fourth Amendment analysis and opens the door

to substantial confusion in the probationary context and beyond.

Federal courts permit warrantless searches under the Fourth Amendment to

the United States Constitution when the government can show a special need beyond

the normal needs for law enforcement that makes the probable cause requirement

impracticable. Skinner v. Ry. Labor Execs.' Ass 'n, 489 U.S. 602, 619, 109 S. Ct.

1402, 103 L. Ed. 2d 639 (1989). The Supreme Court has applied this doctrine to

justify warrantless probationary searches. Griffin v. Wisconsin, 483 U.S. 868, 873,

3 The majority also cites State v. Farmer, 116 Wn.2d 414, 805 P.2d 200 (1991). There, we suggested that a "fundamental liberty interest may be justifiably limited by a narrowly drawn, compelling state interest." Id. at 429. But we recognized this theory was limited to only four unique circumstances not relevant here, and we ultimately declined to apply such a test in that case, which involved nonconsensual HIV (human immunodeficiency virus) testing. Id. at 431 (nonconsensual HIV testing unconstitutional as applied to the defendant). Since Farmer, we have further declined to apply this test despite numerous opportunities to do so. Until today, it appears no Washington court has relied on Farmer to justify an invasion of privacy under article I, section 7. 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). Although we have thus far declined to

adopt a special needs exception to the warrant requirement under article I, section 7,

majority at 10, today the majority muddies the waters by adopting its functional

equivalent.

Despite using slightly different language, the majority's new test bears all the

indicia of the federal special needs exception under the Fourth Amendment. Like

the majority's test, the special needs exception requires a compelling state interest.

See, e.g., Nat'! Treasury Emps. Union v. Von Raab, 489 U.S. 656, 675 n.3, 109 S.

Ct. 1384, 103 L. Ed. 2d 685 (1989) ("It is sufficient that the Government have a

compelling interest in preventing an otherwise pervasive societal problem.").

Further, the state must demonstrate that the warrant or probable cause requirement

would be impracticable given the nature of the compelling interest at stake. Griffin,

483 U.S. at 873. The majority echoes this reasoning as well, noting that

demonstrating reasonable suspicion "could make it prohibitively difficult for the

probation officer to carry out his or her responsibilities." Majority at 16-17.

Typically, special needs searches must also be narrowly tailored in the sense

that the intrusion is minimal. See, e.g., Skinner, 489 U.S. at 624-25; see also Knox

County Educ. Ass 'n v. Knox County Ed. ofEduc., 158 F.3d 361,384 (6th Cir. 1998)

(noting the state's interest in a drug testing regime for teachers outweighed the

teachers' privacy interests because it "is circumscribed, narrowly-tailored, and not

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

overly intn1sive, either m its monitoring procedures or m its disclosure

requirements"). Indeed, many federal courts recharacterize the special needs

doctrine into nearly the same formulation that the majority adopts here. See Skinner,

489 U.S. at 624 ("[W]here the privacy interests implicated by the search are minimal,

and where an important 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."); see also United States v.

Stewart, 468 F. Supp. 2d 261,268 (D. Mass. 2007) ("[T]he 'special needs' exception

requires a governmental purpose narrowly tailored to the means used to effectuate

that purpose." (citing Skinner, 489 U.S. at 629-30)), rev 'don other grounds, 532

F.3d 32 (1st Cir. 2008); Green v. Berge, 354 F.3d 675, 679 (7th Cir. 2004)

("Wisconsin's DNA [( deoxyribonucleic acid)] collection statute is, we think,

narrowly drawn, and it serves an important state interest. ... The Wisconsin law

withstands constitutional attack under the firmly entrenched 'special needs'

doctrine."); compare Skinner, 489 U.S. at 619 (describing special needs analysis as

"balanc[ing] the governmental and privacy interests to assess the practicality of the

warrant and probable-cause requirements"), with majority at 11 (stating a "balancing

test may be appropriate" to determine whether the state interest justifies the intrusion

here). In York, this court equated the special needs doctrine to the strict scrutiny

analysis the majority now adopts, emphasizing that no such doctrine exists under

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

article I, section 7. See York, 163 Wn.2d at 314 ("[W]e have not created a general

special needs exception or adopted a strict scrutiny type analysis that would allow

the State to depart from the warrant requirement whenever it could articulate a

special need beyond the normal need for law enforcement." (emphasis added)).

Despite any minute differences, the parallels are too substantial and too

significant to deny. Apart from the magic words, the majority's strict scrutiny test

is nearly indistinguishable from the federal special needs doctrine. This expansion

of article I, section 7 jurisprudence could have a substantial effect on how we

evaluate searches in the probationary context and beyond. Indeed, it is difficult to

imagine a warrantless government intrusion that would satisfy the special needs

doctrine but not the strict scrutiny test the court adopts today.

Of course, looking to the federal courts for guidance is not necessarily unusual

or improper. When appropriate, we occasionally consider federal constitutional

analysis when reviewing analogous provisions in the Washington Constitution. See,

e.g., State v. Lee, 135 Wn.2d 369,387,957 P.2d 741 (1998) (Absent a demonstration

that the Washington Constitution provides broader protection, we will interpret it

"coextensively with its parallel federal counterpart.").

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

But the majority has co-opted the special needs doctrine surreptitiously.

Rather than expressly adopt such a doctrine, which we have contemplated before, 4

the majority instead commandeers the doctrine's reasoning wholesale and takes

great care to avoid any implication that a special needs doctrine now exists under

article I, section 7. This is confusing at best-is there a special needs doctrine or

not?-and disingenuous at worst. In York, 163 Wn.2d at 314, we said that no such

doctrine existed in Washington, but that no longer appears to be true.

One reason the majority might be hesitant to formally adopt a special needs

doctrine is because it takes us closer to Fourth Amendment jurisprudence despite

our repeated affirmations that article I, section 7 provides broader protection than its

federal counterpart. See, e.g., State v. Ladson, 138 Wn.2d 343, 348-49, 979 P.2d

833 (1999). The majority's decision to emulate federal courts is especially peculiar

here, given our promise to "offer heightened protection for bodily functions

compared to the federal courts." York, 163 Wn.2d at 307. This difference stems

from the text of article I, section 7, which provides that "[n]o person shall be

disturbed in his private affairs, or his home invaded, without authority of law."

4 The lead opinion in York, signed by four justices, expressly declined to adopt a special needs exception or an equivalent strict scrutiny test under article I, section 7. 163 Wn.2d at 314. However, a concurring opinion, also signed by four justices, agreed that no special needs exception applied in that case but left the door open to adopting such an exception under article I, section 7. Id. at 329 ("The special needs exception is consistent with well-established common law principles governing warrantless searches and, thus, comports with article I, section 7." (Madsen, J., concurring)). 8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C .J., dissenting)

WASH. CONST. art. I, § 7. Article I, section 7 offers an affirmative promise of

privacy, whereas searches under the Fourth Amendment need only be reasonable.

U.S. CONST. amend. IV; see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.

Ct. 1943, 164 L. Ed. 2d 650 (2006) ("the ultimate touchstone of the Fourth

Amendment is 'reasonableness"' (quotingFlzppo v. West Virginia, 528 U.S. 11, 13,

120 S. Ct. 7, 145 L. Ed. 2d 16 (1999))). The "reasonableness" standard at the heart

of the Fourth Amendment provided the basis for the special needs doctrine in the

first place. See Skinner, 489 U.S. at 618-20 (balancing governmental and privacy

interests is appropriate to determine whether a search was reasonable). Therefore,

the special needs doctrine-or the functional equivalent adopted by the majority-

is inconsistent with article I, section 7 insofar as it is rooted in the Fourth

Amendment's "reasonableness" standard:

Thus, where the Fourth Amendment precludes only "unreasonable" searches and seizures without a warrant, article I, section 7 prohibits any disturbance of an individual's private affairs "without authority of law." [York, 163 Wn.2d at 305-06.] This language not only prohibits unreasonable searches, but also provides no quarter for ones which, in the context of the Fourth Amendment, would be deemed reasonable searches and thus constitutional.

State v. Valdez, 167 Wn.2d 761,772,224 P.3d 751 (2009). Even though the majority

does not claim to do so, by adopting what is essentially a special needs analysis, it

diminishes the privacy protections enshrined in article I, section 7 and brings us

closer to Fourth Amendment jurisprudence. Alas, there is little need to adopt the

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

special needs doctrine now, given the majority has already provided a more than

adequate doppelganger.

In dictum, the majority attempts to rein in its creation by assuring us the same

reasoning would not apply to other probationary searches. Majority at 17. But this

makes little sense-if a narrowly tailored search furthering a compelling government

interest justifies the intrusion here, why would the same reasoning not justify other

intrusions? So long as the State can meet this new standard, this court would be

compelled to oblige under the majority's reasoning. It would be quite remarkable

indeed if probationary urinalysis searches were such constitutional anomalies that

this court needed to develop a legal framework so unique that it is disposed of and

forgotten after one use.

Nevertheless, the majority attempts to distinguish urinalysis testing from other

probationary searches by describing it as merely a "monitoring tool" used to ensure

compliance with probationary conditions. Majority at 14. But this non sequitur is a

semantic trick. All probationary searches are monitoring tools in the sense that they

are intended to ensure compliance with probationary conditions. See, e.g., Lucas,

56 Wn. App. at 240-41 (The State has an interest in supervising probationers subject

to probation conditions, and therefore probationers "should expect close scrutiny.");

see also Jardinez, 184 Wn. App. at 523-24 (purpose of probationary searches is to

determine whether probation violation occurred); see also Griffin, 483 U.S. at 883

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

("One important aspect of superv1s10n 1s the monitoring of a probationer's

compliance with the conditions of his probation. In order to ensure compliance with

those conditions, a probation agent may need to search a probationer's home to

check for violations.").

To support this distinction between a "monitoring tool" and other

probationary searches, the majority cites three inapposite cases. See State v. Riles,

135 Wn.2d 326, 957 P.2d 655 (1998), abrogated by State v. Sanchez Valencia, 169

Wn.2d 782,239 P.3d 1059 (2010); State v. Combs, 102 Wn. App. 949, 10 P.3d 1101

(2000); State v. Williams, 97 Wn. App. 257, 983 P.2d 687 (1999).

Neither Riles nor Combs involved urinalysis testing or an analogous search.

Riles involved polygraph and plethysmograph testing as a condition of sexual

deviancy therapy for individuals convicted of sex crimes. 135 Wn.2d at 337. This

court has never suggested that polygraph or plethysmograph testing implicates

privacy concerns in the way that urinalysis tests do. See, e.g., York, 163 Wn.2d at

307; see also majority at 5-6. Further, Riles did not address the constitutionality of

these alleged "monitoring tools" under either the Fourth Amendment or article I,

section 7, it addressed only whether the Sentencing Reform Act of 1981, chapter

9.94A RCW, authorized these conditions. Riles, 135 Wn.2d at 340. Although Riles

briefly mentions urinalysis testing in dictum, it did not hold that urinalysis testing is

merely a "monitoring tool" that differs from other probationary searches. Like Riles,

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

Combs involved polygraph testing as a probation condition for a defendant convicted

of child molestation. 102 Wn. App. at 952-53. It did not discuss the constitutionality

of this condition, nor did it discuss urinalysis testing or any analogous search.

Williams involved urinalysis testing as a probationary condition, but it did not

address the issue here-whether random, suspicionless urinalysis tests comply with

article I, section 7. There, a probation officer ordered Jeremiah Williams to submit

to a urinalysis test pursuant to a probation condition, and Williams failed to comply.

Williams, 97 Wn. App. 260-61. After a probation hearing, the commissioner

revoked Williams' probation and sentenced him to 180 days of confinement. Id.

Williams appealed, arguing that the alcohol and drug conditions were not authorized

by statute and that the commissioner unlawfully delegated judicial authority to the

probation department. Id. at 262. He did not challenge the urinalysis test on a

constitutional basis.

Nor could he. The facts in Williams unambiguously demonstrate that the

probation officer had reasonable suspicion to require a urinalysis test. Before the

probation officer ordered the test, Williams actually admitted that he had been using

marijuana. Id. at 261. It was this admission that motivated the probation officer to

order the test. Id. This admission is more than sufficient to establish reasonable

suspicion to conduct a probationary search. See, e.g., Parris, 163 Wn. App. at 119

(discussing reasonable suspicion standard). If anything, Williams demonstrates how

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

probationary urinalysis tests should work. It supports the proposition that once a

probation officer requires a probationer to submit to a search given reasonable

suspicion that the probationer has violated a validly imposed probation condition,

the probationer must comply. Williams in no way supports the majority's theory

that urinalysis testing implicates only minimal privacy interests because it is merely

a monitoring tool. Frankly, none of the authority the majority cites suggests that

monitoring tools are subject to different analysis under article I, section 7.

What the majority means to say (and eventually does) is that a urinalysis test

is less invasive than other searches-such as a search of one's home, vehicle, or

electronic devices-because those searches might reveal more sensitive information.

Majority at 17-18. This reasoning is at least consistent with the majority's test.

Presumably, a less invasive search is more narrowly tailored and thus more likely to

withstand constitutional scrutiny. But the only question relevant to this analysis is

the nature of the privacy interest intruded and the degree of the invasion. The

contrived distinction between a monitoring tool and other probationary searches is

irrelevant and unhelpful in addressing that question. After all, a search by any other

name still implicates article I, section 7.

And even accepting the majority's test, it is questionable whether random,

suspicionless urinalysis testing is narrowly tailored enough to justify disposing of

the reasonable suspicion requirement. The majority insists urinalysis testing is less

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93 315-4 (Fairhurst, C.J., dissenting)

invasive than other searches because it does not expose "a large amount of private

information." Majority at 18. But this fails to recognize the full nature of the privacy

interest at stake. It is not merely the information obtained but the method of

urinalysis testing that invades an individual's privacy. The majority recognizes this

concern when it concludes that probationers have a privacy interest in their urine but

conveniently forgets it when it determines urinalysis testing is not very invasive.

Majority at 6, 17-18; see also York, 163 Wn.2d at 334 ("'[i]t is difficult to imagine

an affair more private than the passing of urine."' (alteration in original) (quoting

Robinson v. City of Seattle, 102 Wn. App. 795, 818, 10 P.3d 452 (2000))); see also

Skinner, 489 U.S. at 617 ("'There are few activities more personal or private than

the passing of urine.'" ( quoting Von Raab, 489 U.S. at 175)). A probation officer

may be able to learn more about probationers' lives by searching their cars rather

than by observing their exposed genitalia while they urinate, but that does not mean

the latter is any less invasive.

Further, the majority overstates the impracticality of the reasonable suspicion

requirement. In fact, the reasonable suspicion requirement comports with the

majority's strict scrutiny test by providing a less drastic means for the State to

achieve the same goals. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,

17, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (State action is narrowly tailored when

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

"it has selected the 'less drastic means' for effectuating its objectives." (quoting

Dunn v. Blumstein, 405 U.S. 330,343, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972))).

Reasonable suspicion is a low burden. A trained probation officer could

observe visible signs of impairment or other aspects of a probationer's demeanor

that indicate substance use. A probation officer may observe evidence of substance

use through routine visits to probationers or unannounced5 check-ins. A probation

officer could receive tips or interview witnesses to determine whether a probation

violation has occurred.

A probation officer may even discover facts creating an inference that a

violation has occurred through regular interaction with the probationer. For

example, in United States v. Duff, 831 F.2d 176 (9th Cir. 1987), the Ninth Circuit

noted that a urinalysis test of a probationer must be supported by reasonable

suspicion. 6 Id. at 179. The court noted that reasonable suspicion existed given the

probationer's behavior:

5 The majority suggests that reasonable suspicion would be impractical in part because urinalysis tests must be unannounced in order to serve the State's rehabilitative interests. Majority at 16-17. But whether a search is announced or not has nothing to do with the degree of individualized suspicion supporting that search. Indeed, law enforcement officers do not announce every search they perform before they begin, even when those searches are supported with a warrant. In other words, reasonable suspicion would provide probation officers the authority to conduct a urinalysis test. Whether they give the probationer advance notice as to when the test will occur is within their discretion. 6 I note that some federal courts, despite employing the special needs doctrine, have held that urinalysis testing of probationers must be supported by a reasonable suspicion that a probation violation occurred. See, e.g., United States v. Giannetta, 909 F.2d 571, 576 (1st Cir. 1990) (urinalysis test is justified "so long as the decision to search was in fact narrowly and properly 15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

The probation officer had reasonable suspicion that Duff might be using drugs. Duff was not gainfully employed, he had allegedly filled out false prescriptions for Percodan, he allegedly was involved with a group that burglarized his house, and he consistently failed to meet with or cooperate with his probation officer.

Id. As in Diif.f, a trained probation officer may be able to learn certain facts that

indicate relapse into substance use. For example, persistent unemployment,

fraternization with known enablers, consistent failure to cooperate, along with other

factors, may give rise to an inference that the probationer is at risk of using alcohol

or a controlled substance. There may be other facts, short of direct observation, that

rehabilitative professionals consider relevant in determining whether an individual

is using substances. These facts would not be difficult to obtain and would likely

satisfy the reasonable suspicion standard. Contrary to the majority's assertion, the

reasonable suspicion standard would not prevent the State from effectuating its

goals, and it arguably comports with the majority's strict scrutiny analysis.

Nevertheless, the majority rejects the reasonable suspicion standard. But it

assures us that, regardless, urinalysis tests must be conducted "in a []reasonable

manner," and that they cannot be "exploratory." Majority at 20. But these promises

ring hollow. How can a court evaluate the reasonableness of a search if there is not

made on the basis of reasonable suspicion"); see also Duff, 831 F.2d at 179. These cases reveal the irony in the majority's opinion. Despite acknowledging that the Washington Constitution provides "increased protection" for the collection and testing of bodily fluids when compared to federal courts, majority at 3, the ultimate result actually provides less. 16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)

even a minimal requirement of individualized suspicion to justify it? Typically, the

reasonable suspicion standard protects probationers from unreasonable, exploratory,

or otherwise arbitrary or capricious searches. See Simms, 10 Wn. App. at 84. By

removing the reasonable suspicion standard, the majority's opinion can no longer

assure the same protection because it essentially makes probationary urinalysis tests

unreviewable.

In conclusion, the majority's opinion adopts a strict scrutiny test that is the

functional equivalent of the federal special needs doctrine. This expansion of our

jurisprudence diminishes the differences between the Fourth Amendment and article

I, section 7. Further, this decision confuses the standard by which we evaluate

probationary searches and may result in consequences beyond the probationary

context. I dissent.

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Olsen, No. 93315-4 (Fairhurst, C.J., dissenting)