State Ex Rel. Juvenile Department v. Orozco

HASELTON, J.,

dissenting.

Facilitating future criminal investigations is a laudable legislative goal. But that goal cannot constitutionally be achieved through dragnet, warrantless searches and seizures of criminal offenders’ blood. Accordingly, I dissent from the majority’s opinion affirming the trial court’s order requiring child to provide a blood sample for DNA testing pursuant to former ORS 419.507(ll)(a) (repealed by Or Laws 1993, ch 33, § 373).1

*161ORS 137.076 and former ORS 419.507(11) require the court to order all convicted murderers, felony sex offenders, and juveniles found within the jurisdiction of the court for committing similar offenses2 to submit to the extraction of a blood sample for DNA analysis for the purpose of maintaining a criminal identification database. Those records are to be made available to law enforcement agencies, district attorneys, and the Criminal Justice Division of the Department of Justice “for the purpose of establishing the identity of a person in the course of a criminal investigation or proceeding.” ORS 181.085(2)(a). The information is also available to courts, grand juries, and other parties in a criminal prosecution or juvenile proceeding under certain circumstances. ORS 181.085(2)(b); ORS 181.085(2)(c).

Extraction of blood, as the majority acknowledges, implicates Article I, section 9, of the Oregon Constitution. 129 Or App at 151. See State v. Milligan, 304 Or 659, 748 P2d 130 (1988).3 However, the majority reasons that, because persons convicted or adjudicated of certain offenses have a lessened expectation of privacy, the statutorily prescribed warrantless blood extraction cannot be deemed an “unreasonable search or seizure” within the meaning of Article I, section 9.4

The majority’s conclusion depends on two premises. First, the extraction of blood is similar to the routine fingerprinting of suspects or offenders in custody. Second, even in *162the absence of any penological objective, criminal offenders have reduced constitutional rights.

The majority’s fingerprinting premise fails because we, and our Supreme Court, have treated fingerprinting and blood extraction as being constitutionally different. In State v. Cullop, 19 Or App 129, 526 P2d 1048, rev den (1974), this court held that police officers were not required to obtain a search warrant before fingerprinting a criminal suspect who was legally in custody. This was so even where the fingerprinting occurred not as part of a routine “booking” process, but at the time of trial to obtain evidence of defendant’s presence at the crime scene. 19 Or App at 132, citing with approval United States v. Dionisio, 410 US 1, 93 S Ct 764, 35 L Ed 2d 67 (1973) (compelled voice exemplar was not Fourth Amendment “seizure”).5

Conversely, in State v. Milligan, supra, the court held that exigent circumstances, e.g., the dissipation of a suspect’s blood alcohol level “with every breath he took,” permitted the warrantless and unconsented extraction of blood from a DUII suspect. 304 Or at 665-67. Milligan presumes that, absent some established exception to the warrant requirement, a warrant must be obtained to draw blood; otherwise, the Milligan court would not have been obliged to engage in its “exigent circumstances” analysis. See also State v. Heintz, 286 Or 239, 594 P2d 385 (1979).

This distinction between fingerprinting and blood extraction is constitutionally sound. As we implicitly recognized by our reference to United States v. Dionisio, supra, in State v. Cullop, supra, fingerprinting, like voice exemplars, involves personal features or attributes that are not hidden but are, instead, exposed to the public at large. There is no privacy right in such features or attributes:

“The physical characteristics of a person’s voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Lie a man’s facial *163characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. * * *
“The required disclosure of a person’s voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in [Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966)]. * * * Rather, this is like the fingerprinting in [Davis v. Mississippi].” 410 US at 14-15.

Cf. Davis v. Mississippi, 394 US 721, 727, 89 S Ct 1394, 22 L Ed 2d 676 (1969) (applying Fourth Amendment analysis: dragnet detentions, which included fingerprinting, were unconstitutional seizures; however, fingerprinting itself “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search”).6

Blood extraction is different. By its very nature, blood extraction involves the puncturing of skin and the drawing out of bodily fluids that would otherwise be hidden from public scrutiny.

Consistent with Milligan, if police officers wish to obtain a blood sample from a murder suspect to compare the suspect’s blood with that found at the crime scene, they must first obtain a warrant based on “individualized suspicion” that the suspect was, in fact, involved in the murder. See State v. Boyanovsky, 304 Or 131, 134, 743 P2d 711 (1987); State v. Woodward, 107 Or App 123, 126, 810 P2d 1330 (1991).7

Here, child is, at worst, constitutionally indistinguishable from the hypothetical murder suspect. There are no exigent circumstances or other established exceptions to the warrant requirement that would permit the extraction *164of child’s blood without a warrant. Indeed, unlike the hypothetical murder suspect from whom blood might be drawn upon the issuance of a warrant based on individualized suspicion of wrongdoing, there could never be such individualized suspicion justifying the drawing of blood as potential evidence for future, yet-to-be (and, perhaps, never-to-be) committed crimes. Prospective individualized suspicion is a contradiction in constitutional terms.

Because the fingerprinting premise is inapt, the majority’s defense of the blood extraction statutes rests, ultimately, on the second premise, that even in the absence of special penological objectives,8 the protections of Article I, section 9, do not apply to adjudicated or convicted offenders. In particular, the majority creates a “narrow class” of constitutionally permissible “searches and seizures of prisoners that are performed without probable cause and without a penological objective.” 129 Or App at 152. The majority proffers no precedent for this proposition and identifies no other members of this “narrow class.” This is, apparently, a class of one.

The concurring opinion attempts to fill the breech by invoking State v. Robinson, 217 Or 612, 343 P2d 886 (1959), where the court upheld a statute permanently barring convicted felons from possessing concealable firearms. The court sustained the statute against, inter alia, a challenge that it violated the Oregon Constitution, Article I, section 27, pertaining to the right to bear arms:

“According to page 469 of A History of the Oregon Constitution (Carey), Art I, § 27, was patterned upon and is identical to Art I, §§ 32 and 33, Constitution of Indiana. McIntyre v. State, 170 Ind 163,83 NE 1005 [1908], held that the Indiana provision (§ 32) permits reasonable regulation of the right to bear arms and that accordingly legislation prohibiting the carrying of concealed weapons is valid.” State v. Robinson, supra, 217 Or at 619.

Because Article I, section 27, imports a notion of “reasonable regulation,” the legislature may impose generic, cZass-based restrictions on the right to bear arms. See ORS *165166.250(l)(c) (prohibiting possession of firearms by, inter alia, persons under 18 years of age, persons convicted of felonies, and persons civilly committed under ORS 426.130). Such restrictions are constitutional as an exercise of the state’s police power so long as they are based on a reasonable legislative prediction that, “in the generality of cases,” members of the affected class are “more likely than others to resort to force and violence and would be a greater threat to the public safety when in possession of a concealable firearm than when not.” State v. Cartwright, 246 Or 120, 135, 418 P2d 822 (1966), cert den 386 US 937 (1967). Accord State v. Kessler, 289 Or 359, 363-70, 614 P2d 94 (1980) (examining historical context of Article I, section 27).

Unlike Article I, section 27, the protections of Article I, section 9, are not circumscribed by the general police power. Such protections do not depend on actuarial predictions, however “rational,” that members of a targeted class are generally more likely to engage in future criminal conduct than other citizens. Article I, section 9, requires individualized, not generic, suspicion. State v. Boyanovsky, supra, 304 Or at 134.9

Absent a showing of penological justification, convicted offenders are entitled to the same protections under Article I, section 9, as other citizens.9 10 The proffered justification of facilitating future criminal prosecutions is not enough. The same rationale would justify subjecting every *166citizen of Oregon — from judges of this court to infants in maternity wards — to involuntary blood extractions because he or she might commit a crime in the future and the blood DNA analysis might facilitate investigation and conviction. Article I, section 9, does not countenance such an Orwellian result.

I respectfully dissent.

Leeson, J., joins in this dissent.

ORS 419C.473 (Or Laws 1993, ch 33, § 237) replaces former ORS 419.507(11) and is substantively the same.

Juvenile offenders found to have committed acts which, if committed by an adult, would constitute crimes are properly referred to as “within the jurisdiction of the juvenile court.” See OES 4190.005(1); State ex rel Juv. Dept. v. Cruz, 111 Or App 216, 219, 826 P2d 30 (1992). Juveniles are neither “convicted” nor found “guilty.” ORS 4190.400(4). Because I conclude that ORS 137.076, which refers to adults convicted of specified offenses, is not constitutional, I need not directly address the parallel juvenile statute, requiring blood draws from juveniles found within the jurisdiction of the court ifor felonies listed in ORS 137.076(1).

Because I would base my reversal on state constitutional grounds, there is no need to reach child’s Fourth Amendment arguments. See Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981); but cf. Jones v. Murray, 962 F2d 302 (4th Cir), cert den 113 S Ct 472,_US_(1992) (Virginia statute requiring all convicted felons to submit blood samples for DNA analysis for future law enforcement purposes is valid under Fourth Amendment); State v. Olivas, 122 Wash 2d 73, 856 P2d 1076 (1993) (rejecting Fourth Amendment-based challenge to Washington statute requiring blood samples for DNA analysis of certain convicted offenders).

Article I, section 9, of the Oregon Constitution provides, in part:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * *

State v. Cullop, supra, was decided under a Fourth Amendment analysis, and no subsequent decision has addressed the application of Article I, section 9, to fingerprinting. Accord State v. Flores, 68 Or App 617, 685 P2d 999, rev den 298 Or X5X (X984) (addressing uncertain precedential value under Article I, section 9, of Oregon decisions applying Fourth Amendment analysis).

For the same reasons, suspects who are legally in custody can be compelled to participate in line-ups, and their mug shots can be taken without a warrant.

In such circumstances, the critical exigencies in Milligan — e.g., the potential for dissipation for blood alcohol levels, would not be present. Accord Cupp v. Murphy, 412 US 291, 296, 93 S Ct 2000, 36 L Ed 2d 900 (1973) (sustaining warrantless procurement of scrapings from murder suspect’s fingernails because of “ready destructibility of the evidence”).

The majority concedes that there is no valid penological objective justifying the search in this case. 129 Or App at 151.

1 acknowledge, and appreciate, the concurring opinion’s observation that the conduct triggering statutory blood draws is “very serious.” 129 Or App at 158. (Rossman, J., concurring.) This is hardly child’s play. But the egregiousness of that conduct cannot transform our inquiry under Article I, section 9, into a sort of balancing test, weighing the degree of intrusiveness against the “protection of the public.” 129 Or App at 159. (Emphasis in original.) For better or worse, under Article I, section 9, warrantless searches are subject to certain, well-recognized exceptions, per se unreasonable. See State v. Weaver, 319 Or 212, 874 P2d 1322 (1994); State v. Miller, 300 Or 203, 225, 709 P2d 225 (1985).

Valid penological objectives include rehabilitation of persons on probation or parole. Consequently, conditions of probation and parole pertaining to testing of breath or urine for controlled substances or alcohol use are permissible so long as such conditions are reasonably calculated to promote a particular offender’s rehabilitation. State v. Fisher, 32 Or App 465, 469, 574 P2d 354, rev den 283 Or 99 (1978); State v. Culbertson, 29 Or App 363, 563 P2d 1224 (1977). Accord ORS 137.540(l)(c) (authorizing breath and urine testing as condition of probation where “probationer has a history of substance abuse or if there is a reasonable suspicion that the probationer has illegally used controlled substances”).