State v. Surge

¶1¶42 (dissenting) — The majority concludes RCW 43.43.754, which requires convicted felons to provide a biological sample for DNA (deoxyribonucleic acid) testing, does not disturb a private affair protected by article I, section 7 of the Washington Constitution. I disagree. Collection of a biological sample is a search. And every search conducted by a state agent implicates a private affair protected by article I, section 7.

¶2A Person’s Body Is Among Their “Private Affairs”

¶3¶ 43 “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const, art. I, § 7.

¶4¶44 Under RCW 43.43.754, persons convicted of certain felonies must provide a biological sample for DNA testing.13 The majority concludes collecting biological samples from convicted felons cannot violate article I, section 7 because it is not “a disturbance of their private affairs.” Majority at 74. The majority is incorrect.

¶5¶45 The majority’s error is simple, but fundamental. It contends collecting these biological samples disturbed no “private affairs” because these prisoners lack “a valid privacy interest in their identities under article I, section 7.” Majority at 74. Perhaps. But they do not claim a privacy *89interest in their identities. They claim a privacy interest in their bodies. And that is not yet forfeited.

¶6¶46 The “private affairs” protected by article I, section 7 include every privacy interest protected by the Fourth Amendment. “It is by now axiomatic that article I, section 7 provides greater protection to an individual’s right of privacy than that guaranteed by the Fourth Amendment” and “necessarily encompasses those legitimate expectations of privacy protected by the Fourth Amendment.” State v. Parker, 139 Wn.2d 486, 493-94, 987 P.2d 73 (1999). A Fourth Amendment search occurs whenever a government agent invades a person’s “reasonable expectation of privacy.” California v. Greenwood, 486 U.S. 35, 41, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988). But article I, section 7 is “not confined to the subjective privacy expectations of modern citizens who . . . are learning to expect diminished privacy in many aspects of their lives.” State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984). An article I, section 7 search occurs whenever a state agent invades “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant,” irrespective of a person’s subjective expectations. Id.In other words, while the Fourth Amendment protects subjective expectations of privacy, article I, section 7 protects objective privacy interests.

¶7¶47 First among those privacy interests is a person’s body. See Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). “ ‘A man’s home is his castle.’ ” State v. Young, 76 Wn.2d 212, 214, 455 P.2d 595 (1969). But his body is his temple. “If any thing is sacred, the human body is sacred.” Walt Whitman, I Sing the Body Electric, in Leaves op Grass (1900). Prisoners lose their privacy interest in “private affairs” lawfully exposed to state agents. State v. Cheatam, 150 Wn.2d 626, 642, 81 P.3d 830 (2003) (holding prisoner lacks privacy interest in personal items lawfully searched and stored by prison). Accordingly, they may indeed have “a diminished privacy interest in their identity.” Majority at 72. But their privacy interest *90in their body is neither lost nor diminished. Because article I, section 7 “is implicated” whenever a state agent “conducts a search,” State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994), every “search” by definition disturbs a person’s “private affairs.” Collecting a biological sample is “indisputably” a Fourth Amendment search. Ferguson v. City of Charleston, 532 U.S. 67, 76, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001); see also Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-18, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (holding collection and analysis of biological samples both Fourth Amendment searches). And it is an article I, section 7 search as well. See State v. Curran, 116 Wn.2d 174, 184, 804 P.2d 558 (1991) (holding blood test an article I, section 7 “search and seizure”). Accordingly, collecting a biological sample necessarily disturbs a “private affair” protected by article I, section 7.

¶8¶48 A person’s body is cardinal among the “private affairs” protected by article I, section 7. And the right to preserve the integrity of one’s body is fundamental. Prisoners may object to the invasion of their person, or they may object to nothing.

¶9¶49 The majority contends the State may collect biological samples from prisoners because their privacy interests are diminished. But as Judge Reinhardt recently observed, under this rationale “any person who experiences a reduction in his expectation of privacy would be susceptible to having his blood sample extracted” and included in a DNA registry. United States v. Kincade, 379 F.3d 813, 844 (9th Cir. 2004) (Reinhardt, J., dissenting). While DNA databanks certainly facilitate effective law enforcement, effectiveness is no guarantee of constitutionality. Individual rights always pale in comparison to societal needs. But it is the ultima ratio of tyranny to claim “you can’t make an omelet without breaking eggs.” Walter Duranty, Russians Hungry, But Not Starving, N.Y. Times, Mar. 31, 1933, at *9113.14 We trust in our constitutions not in spite of their impracticalities, but because of them. Those impracticalities are our protections. We surrender them at our peril.

¶10¶50 I dissent.

¶13¶51 (concurring in the dissent) — The majority frames Antoine Surge’s privacy interest as being limited to his identity and, therefore, it holds that article I, section 7 does not apply. The majority is incorrect. Prison officials knew Surge’s identity when he was committed to their custody. Rather than identity, this case involves the nonconsensual taking of Surge’s blood to test his deoxyribonucleic acid (DNA), which unquestionably intrudes on his privacy interest in autonomous decision making under article I, section 7. In re Juveniles A, B, C, D, E, 121 Wn.2d 80, 96-98, 847 P.2d 455 (1993); State v. Curran, 116 Wn.2d 174, 184, 804 P.2d 558 (1991); Robinson v. City of Seattle, 102 Wn. App. 795, 817, 10 P.3d 452 (2000). I write separately to explain the test I would apply to determine whether the State’s intrusion was conducted under authority of law.

¶14¶52 When the State intrudes on an individual’s autonomous decision making privacy interest under article I, section 7, we must determine whether the intrusion was conducted under authority of law. Robinson, 102 Wn. App. at 813. In a law enforcement context, an intrusion is valid only if the State has a warrant or meets one of the recognized exceptions to the warrant requirement. Id.at 816 (citing State v. Farmer, 116 Wn.2d 414, 429-30, 805 P.2d 200, 812 P.2d 858 (1991)). Outside 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 of law. See Juveniles, 121 *92Wn.2d at 97-98; Farmer, 116 Wn.2d at 430-31; Robinson, 102 Wn. App. at 816-18. The State must show that it has a compelling interest in intruding on the individual’s privacy interest and that the intrusion was narrowly tailored to achieve that interest. Juveniles, 121 Wn.2d at 97-98. The intrusion in this case is outside the law enforcement context because, although a felon’s DNA is likely to be used by law enforcement for future prosecutions once recorded in the State’s DNA database, the purpose for which it is extracted under RCW 43.43.754 is unrelated to a current criminal prosecution. Therefore, we apply the narrowly tailored compelling state interest test.

¶15¶53 In Juveniles, we found state interest in mandatory human immunodeficiency virus (HIV) testing of juvenile sexual offenders compelling because it “protects society from a communicable disease, safeguards the interests of victims, [and] facilitates the efficient operation of prisons.”15121 Wn.2d at 97-98. We also found mandatory HIV testing of sexual offenders narrowly tailored because it is “aimed at a high-risk group” and “limits disclosure of test results.” Id. at 98.

¶16¶54 In contrast, the State has not established a compelling state interest or narrow tailoring in this case. State interest in identifying Surge is not compelling because the State already knows his identity. RCW 43.43.754 is not *93narrowly tailored because it is now aimed at all felons, not just certain high-risk offenders. Laws of 2002, ch. 289, § 2; RCW 43.43.754(1). Prior to July 1, 2002, RCW 43.43.754 applied only to adults and juveniles convicted or adjudicated guilty of sexual or violent crimes. Former RCW 43.43.754 (1989). As of July 1, 2002, the statute was extended to apply to adults and juveniles convicted or adjudicated guilty of any felony, stalking under RCW 9A.46.110, harassment under RCW 9A.46.020, or communicating with a minor for immoral purposes under RCW 9.68A.090. RCW 43.43.754(1), (4).

¶17f 55 I would conclude that the State intruded on Surge’s privacy interest in his body and bodily functions and the intrusion was not conducted under authority of law because the State did not have a narrowly tailored compelling interest. I concur in the dissent.