¶64 (concurring) — I concur in the result reached by the majority. Like the majority, I conclude that there is no basis upon which to overturn John Athan’s conviction for second degree murder of 13-year-old Kristen Sumstad. I write separately only to make my views known on various aspects of this novel case.
Alexander, C.J.¶65 First, I believe that an individual has, under the Washington State Constitution, a greater expectation of *388privacy in his DNA (deoxyribonucleic acid) than the lesser privacy interest accorded to his mere identity. Accord Robinson v. City of Seattle, 102 Wn. App. 795, 819, 10 P.3d 452 (2000) (preexisting state law reflects a consistent protection of privacy of the body and bodily functions; collection and testing of urine sample triggered article I, section 7 protections). A person’s DNA, whether it be contained, for example, in his saliva, in a droplet of blood, or in a strand of hair, is not, as the majority suggests, equivalent to a person’s thumbprint or the cadence of his voice — physical characteristics that truly speak to our identity only. Rather, a person’s DNA goes beyond who we are to what we are. Accord Br. of Amicus Curiae [American Civil Liberties Union] ACLU at 11-14.
¶66 The majority’s position is made even more untenable when one considers our decision in State v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990). In that case, we held that a person has a reasonable expectation of privacy in items placed in a trash can outside his home. It is hard for me to imagine that a person has a reasonable expectation of privacy in his garbage, but he does not have the same reasonable expectation of privacy in his body makeup. Consequently, I would hold that a person’s privacy interest in his DNA is one that Washington citizens “ ‘should be entitled to hold, safe from governmental trespass.’ ” State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)).
¶67 However, as discussed numerous times by this and other Washington courts, article I, section 7 protections are not triggered unless the State has unreasonably intruded on a person’s private affairs. See Boland, 115 Wn.2d at 580. A defendant bears the burden of proving that the State has disturbed his private affairs. State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998). I agree with the majority that Athan has failed to satisfy this burden. I say this because, like the majority, I believe Athan voluntarily relinquished his privacy interest. As we indicated in State v. Carter, 151 Wn.2d 118, 85 P.3d 887 (2004), a person no longer has a *389privacy interest in something he voluntarily exposes to the public. Id. at 126-27 (defendant did not have a privacy interest in either the exterior or interior of a gun when he voluntarily exposed the gun to the public and encouraged and invited the public to observe, handle, and explore it). Here, without force or compulsion, Athan knowingly exposed his saliva, and the DNA contained therein, by licking the envelope, by putting that envelope into the public mail system, by sending it to persons unknown to him, and by implicitly inviting the recipients to open the envelope. In my view, these actions can be construed as a waiver of Athan’s heightened right to privacy under the state constitution in whatever DNA adhered to the letter.7 Conse-quently, I conclude that detectives involved here did not intrude upon Athan’s private affairs and, therefore, did not need “authority of law” to collect and test Athan’s saliva/ DNA.
¶68 I also concur in that portion of the majority opinion that concludes that the police activity of unlawfully engaging in the practice of law in violation of RCW 2.48.1808 *390neither calls for excluding the DNA evidence in this case nor constitutes the level of governmental misconduct warranting dismissal under CrR 8.3(b). As all parties to this case agree, public policy permits law enforcement to engage in a limited amount of unlawful activity in order to detect and investigate crime. Accord State v. Emerson, 10 Wn. App. 235, 242, 517 P.2d 245 (1973) (police may permissibly engage in “ ‘a limited participation’ in . . . unlawful . . . practices” (quoting United States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973))). Therefore, like the majority, I conclude that the trial court did not manifestly abuse its discretion or base its decision on untenable grounds in denying Athan’s motion to dismiss the charges against him pursuant to CrR 8.3 when it determined that this case was not comparable to those cases in which law enforcement officers posed as attorneys in order to obtain confidential or privileged information. Accord State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997) (Before a court can dismiss a criminal charge under CrR 8.3(b), a defendant must show arbitrary action or governmental misconduct that prejudiced his right to a fair trial.).
¶69 Dismissal under CrR 8.3(b) is an “ ‘extraordinary remedy’ ” that should be granted sparingly. Michielli, 132 Wn.2d at 246 (Alexander, J., dissenting) (“dismissal of charges under CrR 8.3(b) is an extraordinary remedy available only when the accused’s right to a fair trial has been materially affected” (citing State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993))). Reasonable minds may differ regarding the trial court’s and the majority’s conclusion that the ruse employed here was not repugnant to a “sense of justice.” Majority at 378. However, in my view, the *391extraordinary remedy of dismissal is not called for in this case because the trial court’s reasoning for denying the motion was not manifestly unreasonable or untenable. That court relied on a long line of Washington cases allowing police to engage in some amount of illegal activity to detect and investigate crimes, and there was no showing of game playing or mismanagement on the part of the State at trial that prejudiced Athan’s defense.
¶70 Setting the CrR 8.3(b) challenge aside, I would be inclined to concur in Justice Chambers’s dissenting opinion if I believed that the actions of the detectives in this case undermined principles backstopping the attorney-client relationship. As Justice Chambers articulates, sound policy and constitutional reasons exist for according strong protections to attorney-client communications. But, in my view, those reasons are not implicated here.
¶71 This police ruse was not directed at obtaining confidential or privileged information, and it did not interfere with an established attorney-client relationship. In addition, the detectives did not pose as defense attorneys, their actions were not designed to induce Athan to commit a crime, and they did not intrude upon a privileged communication or conversation as evidenced by the fact that Athan objected at trial to only the DNA obtained from the envelope and not the purported class action lawsuit letter contained therein. Accord RCW 5.60.060(2)(a) (attorney-client privilege protects confidential communications between attorneys and clients); Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992) (“essence of the attorney/client relationship is whether the attorney’s advice or assistance is sought and received on legal matters”); State v. Garza, 99 Wn. App. 291, 296, 994 P.2d 868 (2000) (seizing and reading inmates’ legal documents and materials that contained private communications with their defense attorneys impermissibly intruded upon attorney-client relationship). I strongly agree with the dissent that posing as a fake law firm was not the best choice of means for collecting Athan’s DNA. And, as the State acknowledges, this ruse “walked perilously close to *392the line of permissible police ruses.” Br. of Resp’t at 35. Even so, in my view, the fact that the detectives here engaged in the unauthorized practice of law does not, without an additional showing that the State sought to obtain Athan’s confidential or privileged communications with his attorney, call for suppression of that evidence.
¶72 Lastly, I disagree with the majority’s conclusion that the trial court did not err in admitting Detective Mixsell’s testimony that related statements Athan’s brother James allegedly made to detectives about Athan’s actions around the time of the murder. Under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), testimonial hearsay9 statements are admissible only where the declarant is subject to full and effective cross-examination and the declarant is unavailable at trial. Id. at 54. Here, Athan’s brother James did not testify at trial, and the record indicates that he had not previously been cross-examined. Therefore, the only question remaining is whether James Athan’s statements were “testimonial.”
¶73 As the United States Supreme Court made clear, statements taken by police officers in the course of police interrogations are “testimonial.” Id. at 52. Although James Athan’s statement was not made in the course of a formal police interrogation, the United States Supreme Court made known in Crawford that the term “interrogation” could be defined in its colloquial, as opposed to its technical, sense, e.g., questions posed to those in police custody after having been given a Miranda warning.10 Id. at 53 n.4. In my view, questions posed by law enforcement to a potential witness while investigating a completed crime and a suspect’s involvement therein and that are designed to gather evidence for use in a criminal prosecution meet the Supreme Court’s expansive definition of “interrogation.” Accord People v. West, 355 Ill. App. 3d 28, 823 N.E.2d 82, *39387-90, 291 Ill. Dec. 72 (2005). Therefore, statements made by witnesses to those questions are “testimonial” in nature when the circumstances objectively indicate the primary purpose of those interrogation questions was to establish or prove past events potentially relevant to identifying or convicting the perpetrator. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
¶74 Applying the United States Supreme Court’s formulation of “testimonial” here, at the time James Athan was questioned by Officer McGee, more than 10 hours had passed since the discovery of Kristen Sumstad’s body. The questioning was not, therefore, conducted in the course of “an ongoing emergency.” Davis, 547 U.S. at 822. The questioning was conducted for the purposes of establishing the events of the murder and gathering evidence in order to identify the perpetrator of the crime. In turn, Officer McGee was provided with detailed descriptions of Athan’s possible involvement in the crime and events that transpired around the time of the crime’s commission. The investigative questions produced a statement which, if used to convict Athan, “would implicate the central concerns underlying the confrontation clause.” West, 823 N.E.2d at 88 (citing Crawford, 541 U.S. at 52-53). Accordingly, I would conclude that the statement James Athan gave to Officer McGee in 1982 regarding the defendant in this case, which was repeated by Detective Mixsell at trial, is testimonial in nature. Therefore, because James Athan was unavailable to testify at trial and the defendant in this case did not have an opportunity to cross-examine him, I would hold, contrary to the majority’s conclusion, that James Athan’s statement was not admissible.
¶75 Although I believe that the trial court erred in admitting this testimony, any error was undoubtedly harmless beyond a reasonable doubt. I say this because there is DNA evidence linking Athan directly to the crime scene and to semen found in and on the victim. Furthermore, Athan admitted that he was in the immediate area where Sumstad’s body was found the night before it was found and *394admitted to using a handcart or the like at that time. Athan also concealed his associations with Sumstad from police investigating the crime. And, finally, testimony establishes that Athan personally knew Sumstad and appeared to be interested in her sexually. In light of this evidence, the outcome of Athan’s trial would not have been different had this hearsay been excluded.
¶76 In sum, I disagree with the majority’s conclusions that one’s DNA is afforded no greater privacy interest protection than one’s identity and that the trial court properly admitted Detective Mixsell’s testimony as to hearsay. However, because I conclude the detectives involved in this case did not disturb Athan’s private affairs and that the trial court’s error was harmless, I concur with the majority in affirming Athan’s conviction.
In reaching this conclusion, I am not unmindful of those who rightfully question whether this court should establish precedent that allows the State to collect, test, and store materials containing a person’s DNA without first securing a warrant on the theory that a person exposes those materials when he voluntarily exposes his body and bodily fluids to the public. As one commentator has noted, “ ‘Everywhere we go, doing anything we do, we leave behind a trail of genetic evidence: cells that are naturally shed over time.’ ” Br. of Amicus Curiae ACLU at 9 (quoting Rachel Ross, A Trail of Genetic Evidence Follows Us All, Toronto Stab, Feb. 2, 2004, at D03). It is for this reason that I agree with Athan that the voluntary “abandonment” theory is not applicable here. As the ACLU convincingly argues, a defendant leaving or discarding a tangible piece of property in a public place that others may find and examine is conceptually different from leaving our skin cells behind wherever we go in public. Id. at 7-8. Even so, in my view, Athan’s knowing decision to send through the public mail system the letter containing his saliva is far different in nature than that routine shedding of hair, skin, and bodily waste that each of us engages in daily. Those latter incidents cannot be said to be conscious, voluntary actions in the same sense as Athan’s actions here, and the collection and testing of such items without valid authority of law could run afoul of our state constitution. However, those questions are not before us today.
A person who is not an active member of the state bar and who holds himself out as entitled to practice law engages in the unlawful practice of law. RCW 2.48.180(2)(a). The unlawful practice of law “is a gross misdemeanor.” RCW 2.48.180(3)(a). The unauthorized practice of law includes the act of permitting a *390member of the public to believe that one is authorized to give and would give legal assistance even though, in fact, no services are rendered and no fee charged. In re Disciplinary Proceeding Against Hawkins, 81 Wn.2d 504, 507, 503 P.2d 95 (1972). The actions of the investigating officers here in creating a fictitious law firm and a fictitious class action lawsuit and in holding themselves out to be counsel in that suit clearly led Athan, a member of the public, to believe the officers, though their positions as such were unknown to him, were authorized to give and provide him legal advice in this state. Consequently, I agree with the trial court that the officers involved here engaged in the unlawful practice of law.
I agree with Justice Fairhurst’s conclusion that James Athan’s statement was offered to prove the truth of the matter asserted, and it was, therefore, hearsay.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1996).