Opinion
D070218
02-22-2017
In re FRANK M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FRANK M., Defendant and Appellant.
Ashley N. Johndro, under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Joy Utomi, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J237104) APPEAL from a judgment of the Superior Court of San Diego County, Richard J. Oberholzer, Judge. Affirmed. Ashley N. Johndro, under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Joy Utomi, Deputy Attorneys General for Plaintiff and Respondent.
Frank B., a juvenile, burglarized a home while he was on probation. Relying on a condition of Frank's probation that required him to submit to warrantless searches at any time, an officer conducted a buccal swab to collect a sample of Frank's cells for DNA analysis. Frank's DNA matched DNA found at the scene of the burglary and, after the trial court denied Frank's motion to suppress the DNA evidence, Frank admitted to one count of felony burglary. On appeal, Frank argues the court erred in denying his motion to suppress because the buccal swab cell collection constituted an unreasonable search and seizure which fell outside the scope of the condition of his probation requiring him to submit to warrantless searches. We conclude the collection was a reasonable search within the scope of the probation condition and affirm the judgment.
A buccal swab is a common procedure in which a cotton swab or small piece of filter paper is wiped on the inside of an individual's cheek to collect skin cells for DNA analysis. (See Maryland v. King (2013) 133 S.Ct. 1958, 1967-1968 (King).)
FACTUAL AND PROCEDURAL BACKGROUND
In July 2015, after Frank admitted to misdemeanor assault, the court declared him a ward of the court pursuant to Welfare and Institutions Code section 602 and placed him on probation. Among other conditions, Frank's probation required that he refrain from further criminal activity and that he "submit [his] person, property, or vehicle, or any property under [his] immediate custody or control to search at any time, with or without probable cause, with or without a search warrant, by any law enforcement officer."
Less than a month later, Frank, his brother, and another individual entered a home and stole money and property. The police responded to a report by the homeowner and collected DNA evidence from dried blood and drink containers left in the home during the burglary. The police interviewed Frank's brother after the crime laboratory matched DNA collected from him to DNA recovered from the scene. Frank's brother stated Frank was with him during the burglary but said he would "take the fall" for the entire thing because the burglary was his idea. The district attorney did not immediately press charges against Frank.
Frank was subsequently arrested for an unrelated carjacking and, while detained on those charges in December 2015, San Diego County Deputy Sheriff Julian used a buccal swab to collect skin cells from Frank's cheek for DNA testing. Deputy Julian did not obtain a warrant permitting the collection or the testing, but told Frank he was conducting the swab in accordance with the Fourth Amendment waiver condition of Frank's probation.
Frank's DNA matched DNA found at the burglarized home, and he was charged with one count of felony burglary. Frank moved to suppress the DNA evidence, arguing the buccal swab cell collection constituted an unreasonable search and seizure that was outside the scope of his probation condition requiring him to submit to warrantless searches. The court denied the motion, Frank admitted the burglary, and the court took custody of the minor pursuant to Welfare and Institutions Code section 726, subdivision (a)(2), and committed Frank to the Breaking Cycles program.
Frank appeals.
DISCUSSION
Frank contends the court erred in denying his motion to exclude the DNA evidence because the buccal swab was an unreasonable search and seizure under the Fourth Amendment. The People assert that: (1) the buccal swab was reasonable as it was within the scope of the warrantless search condition of Frank's probation; (2) even if it was not, Deputy Julian acted in good faith in relying on the probation condition at the time he conducted the swab; and (3) the DNA evidence was admissible under the doctrine of inevitable disclosure because Frank already admitted to a separate felony, and would have been required to submit a DNA sample in accordance with Penal Code section 296, subdivision (a)(1). For the reasons set forth below, we conclude the swab was reasonable and within the scope of the warrantless search condition of Frank's probation. I. The Warrantless Search Condition of Frank's Probation
The use of a buccal swab to collect a sample of cells for DNA analysis is a "search" subject to the restraints of the Fourth Amendment prohibition against unreasonable searches and seizures. (King, supra, 133 S.Ct. at p. 1963.) We review de novo the legal question of whether a search violated the Fourth Amendment, but defer to the underlying factual determinations of the trial court that are supported by substantial evidence. (People v. Redd (2010) 48 Cal.4th 691, 719.)
Subject to a few limited and well-defined exceptions, searches conducted without a warrant are per se unreasonable and unconstitutional. (Missouri v. McNeely (2013) 133 S.Ct. 1552, 1558; People v. Jones (2014) 231 Cal.App.4th 1257.) However, an individual may consent to a warrantless search, thereby waiving his or her Fourth Amendment rights. (People v. Bravo (1987) 43 Cal.3d 600, 606, 610.) A condition of probation requiring such consent is valid and permits an officer to conduct a warrantless search without violating the Fourth Amendment, so long as the search is within the scope of the condition and is not arbitrary, capricious or harassing. (Bravo at pp. 606, 610.) In determining whether a specific search is included within the scope of a probation condition requiring the probationer to consent to warrantless searches, the court applies an objective standard and considers what a reasonable person would understand from the language of the condition. (Id. at pp. 606-607.)
Here, Deputy Julian expressly relied on Frank's consent to submit to warrantless searches, as set forth in his probation conditions, and it is undisputed that the collection and testing of his DNA was not arbitrary, capricious or harassing. Thus, the relevant inquiry is whether, when viewed under an objective standard, the search—in this case, the use of a buccal swab to collect a sample of Frank's cells—was reasonable and within the scope of the warrantless search condition to which Frank consented.
The copy of the minute order setting forth the conditions of Frank's probation included in the record is not signed by Frank or the court. However, the parties do not dispute that Frank consented to the probation conditions, and both rely on the exact language of the warrantless search condition as set forth therein.
While no case in California directly addresses whether a Fourth Amendment waiver of this nature permits the use of a buccal swab to collect DNA, two cases that examine the reasonableness of similar searches under the Fourth Amendment are particularly pertinent to our analysis. In Jones, the court considered the scope of a similar broadly worded Fourth Amendment waiver imposed as a condition of a defendant's placement on post-release community supervision (PRCS), commonly referred to as parole, and held the collection of biological material—although in the context of a blood draw from an adult for the purpose of testing the defendant's blood alcohol level—was both reasonable and within the scope of the waiver. (Jones, supra, 231 Cal.App.4th at p. 1265; see also Pen. Code, § 3453, subd. (f) ["The person . . . shall be subject to search at any time of the day or night, with or without a warrant"].) In King, the United States Supreme Court held that the use a buccal swab to obtain DNA for identification purposes pursuant to a statute permitting the collection of DNA as part of a routine booking procedure was less intrusive than a blood draw, and was a reasonable search within the context of the Fourth Amendment. (King, supra, 133 S.Ct. at p. 1970, 1980.)
The wording of the search condition of Frank's probation that the deputy relied upon in conducting the buccal swab to collect Frank's DNA was similar to the wording of the PRCS search condition at issue in Jones and, pursuant to King, the buccal swab procedure was less intrusive than the blood draw at issue in Jones. (See Jones, supra, 231 Cal.App.4th at p. 1265; King, supra, 133 S.Ct. at pp. 1969, 1979.) Further, although the deputy conducted the swab in reliance on this valid Fourth Amendment waiver, as opposed to a statute regarding routine booking procedures, the use of the buccal swab to collect DNA for identification purposes was, by analogy to the search in King, a reasonable search pursuant to the Fourth Amendment. (See King, supra, at pp. 1970, 1980.) Thus, considering an objective reading of the broad language of the warrantless search condition in the terms of Frank's probation and the minimally invasive nature of a buccal swab collection, we conclude the buccal swab collection was reasonable and within the scope of the waiver.
Frank argues Jones is distinguishable on three grounds. First, Frank posits a buccal swab for DNA testing is actually more invasive than a blood draw, not because of the collection procedure, but because DNA testing can reveal significant information about an individual. However, Frank does not assert that the laboratory here tested his DNA for anything other than identification purposes, or that the testing actually revealed any other personal information about him. In King, the Supreme Court explained that DNA testing solely for identification purposes is standard practice, does not reveal any personal or medical information about the individual, and does not typically raise concerns related to the discovery of private information. (King, supra, 133 S.Ct. 1979-1980; see also People v. Robinson (2010) 47 Cal.4th 1104, 1121 [concluding the nonconsensual extraction of biological samples from adult felons for identification based on DNA testing is minimally intrusive, reasonable, and serves compelling state interests].) Thus, the testing of Frank's DNA for identification purposes was not significantly more invasive than the testing of the defendant's blood at issue in Jones.
Next, Frank argues Jones is inapplicable because, as a minor on probation for a misdemeanor, he had a greater expectation of privacy than Jones, an adult felon. However, in this context, adult parolees and juvenile probationers have a similarly reduced expectation of privacy. (In re Jaime P. (2006) 40 Cal.4th 128, 137 [confirming juvenile probationers have a reduced expectation of privacy similar to parolees]; In re Calvin S. (2007) 150 Cal.App.4th 443, 448.) Further, the court in Jones explained the warrantless search condition there was reasonable in light of Jones' diminished expectation of privacy because it served the legitimate interests of protecting the public and deterring future crime. (Jones, supra, 231 Cal.App.4th at pp. 1267, 1269.) Similarly here, to the extent the warrantless search condition of Frank's probation allowed the police to obtain Frank's DNA, thereby establishing his involvement in the burglary, it furthered the juvenile court's primary goals of protecting the public and rehabilitating Frank by deterring future criminal activity. (See In re Jaime P., supra, at pp. 135-137, 139 [discussing the heightened focus on rehabilitation and deterring future misconduct in the juvenile probationer context]; In re Calvin S., supra, at p. 449 [concluding the collection of biological samples from juveniles for DNA testing is minimally intrusive and justified by the goals of the juvenile court].)
Frank also asserts the swab was an unreasonable search because it was done to establish his involvement in the burglary, a separate crime, and not to assess his compliance with the conditions of his probation. However, the terms of his probation required him to refrain from further criminal activity and, regardless, the testing served the legitimate interests of protecting the public and rehabilitating Frank, as discussed.
Finally, Frank argues there were no exigent circumstances here justifying the warrantless search as there were in Jones. However, the court in Jones discussed the exigent circumstances—the dissipation of alcohol in the blood over time—as a separate basis justifying the warrantless blood draw (Jones, supra, 231 Cal.App.4th at pp. 1262-1263), and those circumstances did not factor into the court's conclusion that the language of the warrantless search condition of the defendant's parole independently permitted the blood draw. (Id. at pp. 1265-1269.) The court's conclusion in Jones that the parole condition provided "an independent basis" for the denial of Jones's motion to suppress supports the conclusion that the buccal swab conducted on Frank was also reasonable and within the scope of the similarly worded warrantless search condition of Frank's probation. (See, Jones, supra, at p. 1265.)
As the deputy expressly relied on the warrantless search condition of Frank's probation to obtain DNA from Frank using a buccal swab, and the collection of DNA via that procedure for identification purposes was reasonable and within the scope of the Fourth Amendment waiver contained in the search condition, we conclude the court did not err in refusing to exclude the resulting DNA evidence. (See Bravo, supra, 43 Cal.3d at pp. 606, 610.) II. Good Faith and Inevitable Disclosure
The People also assert the DNA evidence was admissible pursuant the doctrine of inevitable disclosure and because Deputy Julian acted in good faith. As we conclude that the DNA evidence was admissible as a reasonable search within the scope of the warrantless search provision of the conditions of Frank's probation, we need not, and do not, address these arguments.
DISPOSITION
The judgment is affirmed.
/s/_________
IRION, J. WE CONCUR: /s/_________
HUFFMAN, Acting P. J. /s/_________
AARON, J.