State Ex Rel. Juvenile Department v. Orozco , 129 Or. App. 148 ( 1994 )

RIGGS, J.

In 1992, child was found to be within the jurisdiction of the court for having committed acts that, if done by an adult, would have constituted rape in the first degree. ORS 163.375. The court denied child’s request to convert his delinquency petition to a dependency petition and committed him to a juvenile training school. The juvenile court also ordered child to provide a blood sample for DNA testing pursuant to former ORS 419.507(ll)(a)¹ and ORS 137.076. We review de novo. Former ORS 419.561(5); State ex rel Juv. Dept. v. Qutub, 75 Or App 298, 706 P2d 962, rev den 300 Or 332 (1985).

1,2. Child first assigns error to the order requiring him to submit a blood sample. He argues that a search authorized by ORS 137.076 violates Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The proper sequence for analyzing a constitutional claim in Oregon is to look first to state law, including state constitutional law, before reaching a federal constitutional claim. Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981). Statutes are accorded a presumption of constitutionality unless no constitutional construction is possible. State v. Smyth, 286 Or 293, 296, 593 P2d 1166 (1979).

Former ORS 419.507(ll)(a) provided, in part:

“Whenever a child is found to be within the jurisdiction of the court under ORS 419.476(l)(a) for having committed an act which, if done by an adult would constitute a felony offense listed in ORS 137.076(1), the court shall order the child to submit to the drawing of a blood sample in the manner provided by ORS 137.076.”

Once the blood is extracted, a genetic profile is developed and added to the database for adult and juvenile sex offenders.² ORS 181.085. Drawing a blood sample implicates Article I, section 9, of the Oregon Constitution, which prohibits unreasonable search and seizure.³ State v. Milligan, 304 Or 659, 748 P2d 130 (1988).

The question before us is whether the search for a DNA “fingerprint” in the blood of sex offenders is reasonable when the DNA is sought for possible use in future criminal investigations. Child argues that it is reasonable for the state to extract blood for evidentiary purposes only if it has a warrant, based on probable cause, or if an exception to the warrant requirement applies. However, the warrant requirement has never been applied to routine searches of convicted or adjudicated persons under state custody. Whether the blood draw is an unreasonable search must be determined with reference to child’s right to privacy, which is diminished because he is in post-adjudicated custody.

Routine searches of prisoners and probationers without probable cause are reasonable if there is a penological objective. See State v. Culbertson, 29 Or App 363, 563 P2d 1224 (1977). Language in Culbertson would appear to suggest that a search under ORS 137.076 is unreasonable because its objective is not penological.

“[Pjrisoners, even while incarcerated, retain those constitutional rights that are not inconsistent with legitimate penological objectives.” 29 Or App at 369.

The state fails to isolate any penological objective for ORS 137.076, i.e., any objective related to the management or mission of a prison. Nevertheless, when the case law and statutes defining the constitutional rights of convicts are read as a whole, it becomes clear that penological objectives are not the only objectives that justify the infringement of a prisoner’s constitutional right.

ORS 137.076 searches fall into a narrow class of searches and seizures of prisoners that are performed without probable cause and without a penological objective. These searches and seizures are performed for law enforcement purposes, specifically, to record the immutable characteristics of arrestees and offenders for use in the investigation of future crimes. Included in this class are the fingerprints, palm prints, toe prints and “other personal identifiers” that are seized by law enforcement officers after arrest. ORS 181.511. We are unwilling to say that fingerprinting someone after arrest is an unreasonable seizure.⁴ Likewise, we are unwilling to say that drawing a small amount of blood for a DNA “fingerprint” is an unreasonable search when the blood is drawn from a sex offender, after a magistrate has determined that the statutory criteria have been met.⁵

While blood-testing is arguably a greater insult to human dignity than fingerprinting,⁶ ORS 137.076 surrounds blood-testing with greater procedural safeguards. Like a fingerprint or a voice exemplar, blood-testing is a non-testimonial record of physical characteristics and involves “none of the probing into an individual’s life and thoughts that marks an interrogation or a search.” Davis v. Mississippi, supra, n 4.

The dissent argues that drawing blood cannot be analogized to fingerprinting. However, its argument rests on a strained reading of state and federal case law. The dissent reasons as follows: Because State v. Cullop, 19 Or App 129, 526 P2d 1048, rev den (1974), held that, during his trial, a criminal defendant could be fingerprinted without a warrant, and because State v. Milligan, supra, held that blood-testing of a criminal suspect was subject to the warrant requirement, fingerprinting and blood-testing cannot be analogous. This reasoning is unpersuasive. State v. Milligan, supra, is inapposite to the case at bar. In Milligan, the police drew a blood sample from a suspect as evidence of a particular crime. In this case, the blood is sought from an adjudicated, incarcerated sex offender for identification purposes. The difference in the privacy rights of the defendants and the different purposes behind the blood tests distinguish the test in Milligan from the test authorized by ORS 137.076. Compelled blood-testing under ORS 137.076 does not conflict with the holding in Milligan.

Child next argues that ORS 137.076 violates the Fourth Amendment to the United States Constitution. Under the Fourth Amendment, drawing a blood sample is a search. However, the United States Supreme Court has recognized a number of limited exceptions to the warrant requirement for searches and seizures that involve only a minimal intrusion.⁷ When the intrusion incurred by a given search or seizure is minimal, a reviewing court may balance the government’s interest in conducting the search, the degree to which the search actually advances that interest, and the gravity of the intrusion upon personal privacy to determine whether the search is reasonable. Brown v. Texas, 443 US 47, 50-51, 99 S Ct 2637, 61 L Ed 2d 357 (1979).

The minimally intrusive quality of blood extraction has repeatedly been noted. Cf. Winston v. Lee, 470 US 753, 762, 105 S Ct 1611, 84 L Ed 2d 662 (1985) (“blood tests do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity”). Prosecuting sex offenses is an important government interest. Taking blood samples for a database for adult and juvenile sex offenders directly furthers that interest. Under Brown v. Texas, supra, a search pursuant to ORS 137.076, undertaken to find a DNA “fingerprint,” is reasonable and does not violate the Fourth Amendment.

Child also assigns error to the treatment of his case as a delinquency matter rather than as a dependency matter. We said in State ex rel Juv. Dept. v. Bishop, 110 Or App 503, 506, 823 P2d 1012 (1992), that a juvenile court has discretion to fashion a disposition suited to the individual case. See also State ex rel Juv. Dept. v. Eichler, 121 Or App 155, 854 P2d 493 (1993). Former ORS 419.474(2) (repealed by Or Laws 1993, ch 33, § 373) permitted the juvenile court to fashion appropriate dispositions to promote the welfare of a child within its jurisdiction. In this case, the state established that the dispositional alternatives available under a dependency petition would not serve the child’s best interests and, as a result, society’s best interests.⁸ The trial court did not err in declining to consider an alternative disposition.

Child’s remaining assignment of error does not merit discussion.

Affirmed.

1 ORS 419.507(ll)(a) was repealed by Oregon Laws 1993, chapter 33, section 373, re-enacted and recodified at ORS 4190.473(1).

2 Offenses listed in ORS 137.076 are rape, sodomy, unlawful sexual penetration, sexual abuse, public indecency, incest or using a child in a display of sexually explicit conduct; burglary with intent to commit the above offenses; promoting or compelling prostitution; conspiracy or attempt to commit any felony listed above; murder or aggravated murder.

ORS 181.085(1) provides, in part:

“The Department of State Police is authorized to:

“(a) Store blood samples received under authority of this section, ORS 137.076, 161.325 and 419C.473(1), and autoradiographs and other physical evidence obtained from analysis of such samples;

“(b) Analyze such samples for the purpose of establishing the genetic profile of the donor or otherwise determining the identity of persons or contract with other qualified public or private laboratories to conduct that analysis;

“(c) Maintain a criminal identification data base containing information derived from blood analysis!)]”

3 State v. Milligan, supra, describes a compelled blood test as both a search and a seizure. Defendant’s sole challenge to former ORS 419.507(ll)(a) is that it permits an unconstitutional search.

4 Fingerprinting has never been analyzed under Article I, section 9. Article I, section 9, is implicated because a person and that person’s hands must be seized in order to take fingerprints. In Davis v. Mississippi, 394 US 721, 727, 89 S Ct 1394, 22 L Ed 2d 676 (1969), the Supreme Court rejected as improper a police dragnet to seize members of the public for fingerprinting. However, all jurisdictions that have considered the issue have held that fingerprints can be seized from people who are already in custody. See generally 5 LaFave, Search and Seizure § 5.3(c) (2d ed 1987).

5 Searches and seizures are separate acts and must be analyzed separately. State v. Herbert, 302 Or 237, 729 P2d 547 (1986). However, the definition of “reasonableness” is similar in both contexts.

6 The dissent argues that (1) blood tests differ from fingerprints because fingerprints, like voice exemplars, are not “hidden attributes;” and (2) that blood tests involve puncturing the skin. In regard to the first proposition, we take judicial notice of the fact that most people do not walk down the street with magnifying glasses to facilitate scrutiny of their fingerprints. Thus, fingerprints are not “public knowledge” any more than one’s DNA is “public knowledge” if they had a bloody nose. In regard to the second proposition, we grant that blood is drawn by puncturing the skin, but the dissent does not persuade us that this difference is a constitutionally significant one. Afullbody cavity search does not puncture the skin, but arguably has more serious constitutional implications.

7 The court has applied a balancing test for minimally intrusive searches to uphold “stop and frisk” searches, Terry v. Ohio, 392 US 1,20-21,88 S Ct 1868,20 L Ed 2d 889 (1968) and brief border searches, United States v. Martinez-Fuerte, 428 US 543, 557-60, 96 S Ct 3074, 49 L Ed 2d 1116 (1976).

8 At the time of the hearing, child had been on probation since November, 1990. His prior adjudications had been for robbery in the third degree, assault in the fourth degree, unlawful possession of a firearm, kidnapping in the first degree, two counts of harassment and two more counts of assault in the fourth degree. In addition, child had a pending probation violation and an unlawful possession of a weapon charge. Child had failed in a number of detention programs and foster homes, as well as failing in a trial return to his mother’s home. The representative from Children’s Services Division told the court that they had nothing left to offer child.