Opinion
No. 25214-1-III.
May 1, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-01047-1, Neal Q. Rielly, J., entered May 1, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown, J., and Kato, J. Pro Tem.
The defendant here challenges the constitutionality of RCW 43.43.754 (establishing a DNA identification system and setting out procedures for collection of DNA). Division One of this court in State v. Surge concluded that the practice authorized by the statute served needs beyond normal law enforcement purposes and therefore was not subject to the Fourth Amendment prohibition against unlawful searches and seizures. We agree with that decision and therefore affirm the decision of the superior court.
Deoxyribonucleic acid.
State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004), review granted, 153 Wn.2d 1008 (2005).
FACTS
The State charged Lyle Jones with possession of a controlled substance, methamphetamine. A jury found him guilty. The trial court imposed a standard range 60-day sentence and ordered Mr. Jones to provide "a biological sample collected for purposes of DNA identification analysis" as a condition of his sentence. Clerk's Papers at 25. Mr. Jones appeals the order compelling the DNA sample.
DISCUSSION
The question presented is whether collection of DNA samples from convicted felons pursuant to RCW 43.43.754 violates the constitutional right against unreasonable searches and seizures.
"Statutory interpretation is a question of law that we review de novo." Maguire v. Teuber, 120 Wn. App. 393, 395-96, 85 P.3d 939 (2004). The statute here provides that:
Every adult or juvenile individual convicted of a felony . . . must have a biological sample collected for purposes of DNA identification analysis.
The Fourth Amendment prohibits only unreasonable searches and seizures. Surge, 122 Wn. App. at 452; United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). What constitutes an unreasonable search and seizure depends on the circumstances of and the nature of the search and seizure. Surge, 122 Wn. App. at 452; Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). The analysis and collection of biological samples constitute a search for purposes of the Fourth Amendment. Surge, 122 Wn. App. at 452; see Ferguson v. City of Charleston, 532 U.S. 67, 76, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001).
Generally, a search is not reasonable unless based on a warrant issued upon probable cause. Surge, 122 Wn. App. at 453; Skinner, 489 U.S. at 619. There are, however, exceptions to this general rule. The State need not have either probable cause or a warrant if the search and seizure is required by "special needs" — needs beyond normal law enforcement purposes. Surge, 122 Wn. App. at 453; Skinner, 489 U.S. at 619; Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). DNA samples seized from convicted felons to establish a DNA data bank fall within this special needs exception. State v. Olivas, 122 Wn.2d 73, 92-100, 856 P.2d 1076 (1993).
Mr. Jones, like the plaintiffs in Surge, argues that Olivas is no longer good law because of recent Supreme Court cases. Surge, 122 Wn. App. at 454; see Appellant's Br. at 5. Both submit that the primary purpose of RCW 43.43.754 is general law enforcement and therefore requirements of the special needs exception are not met. Surge, 122 Wn. App. at 455-56; Appellant's Br. at 5.
We agree with the Surge court's response to these arguments. Surge, 122 Wn. App. at 456. Seizures from non-incarcerated hospital patients or motorists at highway checkpoints are not applicable to convicted felons. Id.
Ferguson, 532 U.S. 67.
City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).
Mr. Jones also argues that RCW 43.43.754 violates article I, section 7 of the Washington State Constitution. But he has not discussed the factors required by State v. Gunwall. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986); State v. Ladson, 138 Wn.2d 343, 347-48, 979 P.2d 833 (1999). Gunwall requires analysis of six nonexclusive factors: "(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern." Gunwall, 106 Wn.2d at 58, 61-62.
"No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
The Washington Supreme Court refused to address an article I, section 7 argument regarding blood samples for DNA purposes, absent a Gunwall analysis. Olivas, 122 Wn.2d at 82. And the court in Surge refused a state constitutional analysis on the same grounds. Surge, 122 Wn. App. at 460.
We affirm the court's sentence, including the statutorily required DNA sample.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Brown, J.
Kato, J. Pro Tem.