State v. Surge

160 Wash. 2d 65
CourtWashington Supreme Court
DecidedApril 19, 2007
DocketNo. 76013-6
StatusPublished
Cited by44 cases

This text of 160 Wash. 2d 65 (State v. Surge) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Surge, 160 Wash. 2d 65 (Wash. 2007).

Opinions

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

C. Johnson, J.

FACTUAL AND PROCEDURAL HISTORY

¶2 Petitioner Antoine Surge pleaded guilty to murder in the second degree. Petitioner Christopher Yarbrough was convicted of two counts of robbery and one count of burglary. Petitioner Shabray McMurry was convicted of bail jumping. Petitioner James McClinton pleaded guilty to unlawful pos[70]*70session of cocaine. Petitioner Ricardo Guzman-Gil entered an Alfordl1 plea to one count of third degree rape of a child and one count of second degree assault. Petitioner Allen Bowman entered an Alford plea to one count of possession of stolen property in the second degree. Pursuant to the challenged statute, each petitioner was ordered to provide a biological sample for DNA identification analysis and inclusion in the State’s DNA database. All six appealed, arguing the compulsory collection of DNA under RCW 43.43.7542 constituted an unreasonable search under the Fourth Amendment. The Court of Appeals affirmed the requirement, finding the special needs analysis from State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993) dispositive. State v. Surge, 122 Wn. App. 448, 450, 94 P.3d 345 (2004). The court noted that even if the special needs analysis is no longer valid under federal law, the statute is constitutional under the minimally intrusive search analysis advanced by the concurring opinion in Olivas. Surge, 122 Wn. App. at 459. All six defendants petitioned this court for review, this time arguing the statute violated their rights under both article I, section 7 and the Fourth Amendment. We granted review at 153 Wn.2d 1008 (2005).

ANALYSIS

¶3 When presented with arguments under both the state and federal constitutions, we review the state constitution arguments first. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). Under the Washington Constitution, it is well established that article I, section 7 qualitatively differs from the Fourth Amendment and in some areas provides greater protections than does the federal constitution. State v. McKinney, 148 Wn.2d 20, 29, 60 P.3d 46 [71]*71(2002). Accordingly, a Gunwall3 analysis is unnecessary to establish that this court should undertake an independent state constitutional analysis.4 State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003); McKinney, 148 Wn.2d at 26. The only relevant question is whether article I, section 7 affords enhanced protection in the particular context. McKinney, 148 Wn.2d at 26-27.

Article I, Section 7

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

¶5 The “private affairs” inquiry focuses on “ ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant’.” State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994) (quoting State v. Myrick, 102 Wn.2d 506, [72]*72511, 688 P.2d 151 (1984)). Private affairs are not determined according to a person’s subjective expectation of privacy because looking at subjective expectations will not identify privacy rights that citizens have held or privacy rights that they are entitled to hold. We begin by examining the historical treatment of the interest asserted, which may disclose that the interest is one a citizen has held. McKinney, 148 Wn.2d at 27. For example, in Gunwall, we relied in part on a statute first enacted in 1909 to establish the historical treatment of the interest asserted in that case. If history does not show whether the interest is one entitled to protection under article I, section 7, we then turn to the question whether the expectation is one that a citizen of this state is entitled to hold. McKinney, 148 Wn.2d at 29. This part of the inquiry includes looking at the nature and extent of the information which may be obtained as a result of the governmental conduct. McKinney, 148 Wn.2d at 27-29. The extent to which the information has been voluntarily exposed to the public is also a consideration because it may show, objectively, that there is no expectation of privacy.

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

¶7 The State argues that convicted felons have always had a diminished privacy interest in their identity. The State points out that upon conviction, the defendant’s name, date of birth, physical features, race, distinguishing scars or tattoos, and fingerprints all become part of the person’s criminal history and this information is maintained as to these individual identifying characteristics. The State contends that DNA sampling,5 which further [73]*73identifies a defendant, is no more of an intrusion into the defendant’s privacy rights than collecting fingerprints or other identifying data. As to monitoring this information for further use, the State points out that fingerprints are filed and regularly compared to fingerprints found at crime scenes or used to identify bodies with no other means of identification.

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Bluebook (online)
160 Wash. 2d 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-surge-wash-2007.