State v. Olsen ( 2017 )

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1tJPREME COURT, STATE OF WASHINGTON This opinion was ·filed for record
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CHIEF JUSTICE • J
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 93315-4
)
v. ) En Banc
)
BRITTANIE J. OLSEN, )
) Filed AUG O3 2.617
Petitioner. )
__________ )
OWENS, J. - At issue in this case is whether a court may require a
probationer convicted of driving under the influence (DUI) to submit to random
urinalysis testing (UAs) for controlled substances. In particular, this issue centers on
whether this testing violates DUI probationers' privacy interests under article I,
section 7 of our state constitution. Random UAs do implicate a probationer's
reduced privacy interests. But here, where urinalysis was authorized to monitor
compliance with a valid probation condition requiring Olsen to refrain from drug and
alcohol consumption, the testing does not violate article I, section 7. Accordingly,
we affirm the Court of Appeals.
State v. Olsen
No. 93315-4
FACTS
The facts are undisputed. In June 2014, Brittanie Olsen pleaded guilty in
Jefferson County District Court to one count of DUI, a gross misdemeanor offense
under RCW 46.61.502. The court imposed a sentence of 364 days of confinement
with 334 days suspended. As a condition of her suspended sentence, the court
ordered that Olsen not consume alcohol, marijuana, or nonprescribed drugs. Over
defense objection, the court also required Olsen to submit to "random urine
analysis screens ... to ensure compliance with conditions regarding the
consumption of alcohol and controlled substances." Clerk's Papers (CP) at 5.
Olsen appealed to Jefferson County Superior Court, arguing that the random
UAs requirement violated her privacy rights under the Fourth Amendment to the
United States Constitution and article I, section 7 of the Washington Constitution.
She contended a warrantless search of a misdemeanant probationer may not be
random but instead "must be supported by a well-founded suspicion that the
probationer has violated a condition of her sentence." CP at 7. The court agreed,
vacated Olsen's sentence, and remanded to the district court for resentencing
without the requirement that Olsen submit to random urine tests.
The State appealed, and the Court of Appeals reversed, holding that
"offenders on probation for DUI convictions do not have a privacy interest in
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No. 93315-4
preventing the random collection and testing of their urine when used to ensure
compliance with a probation condition prohibiting the consumption of alcohol,
marijuana, and/or nonprescribed drugs." State v. Olsen, 194 Wash. App. 264, 272,
374 P.3d 1209 (2016). Olsen then petitioned this court for review, which was
granted. State v. Olsen, 186 Wash. 2d 1017, 383 P.3d 1020 (2016).
ISSUE
Do random UAs ordered to monitor compliance with a valid probation
condition not to consume drugs or alcohol violate a DUI probationer's privacy
interests under article I, section 7 of the Washington Constitution?
ANALYSIS
The Washington State Constitution provides that "[n]o person shall be
disturbed in his private affairs, or his home invaded, without authority of law."
CONST. art. I, § 7. It is well established that in some areas, this provision provides
greater protection than the Fourth Amendment, its federal counterpart. York v.
Wahkiakum Sch. Dist. No. 200, 163 Wash. 2d 297, 306, 178 P.3d 995 (2008)
(plurality opinion).
One area of increased protection is the collection and testing of urine. Id. at
307. Compared to the federal courts, "we offer heightened protection for bodily
3
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No. 93315-4
1
functions." Id. Washington courts have generally held that for ordinary citizens,
suspicionless urinalysis testing constitutes a disturbance of one's private affairs
that, absent authority of law, violates article I, section 7. Id. at 316 (holding that
suspicionless urinalysis tests of student athletes violate article I, section 7);
Robinson v. City of Seattle, 102 Wash. App. 795, 811, 10 P .3d 452 (2000) (holding
that preemployment UAs for jobs that do not directly relate to public safety violate
article I, section 7).
On the other hand, we have repeatedly upheld blood or urine tests of
prisoners, probationers, and parolees without explicitly conducting an analysis
under article I, section 7. For example, in In re Juveniles A, B, C, D, E, we upheld
HIV (human immunodeficiency virus) tests of convicted felons without
individualized suspicion, but decided the case under the Fourth Amendment
instead of our state constitutional provision. 121 Wash. 2d 80, 98, 847 P.2d 455
(1993); see also State v. Olivas, 122 Wash. 2d 73, 856 P.2d 1076 (1993) (DNA
(deoxyribonucleic acid) blood testing of convicted felons). In other cases, lower
courts have upheld random drug testing of probationers or parolees on statutory
1
The parties seem to agree that article I, section 7 provides greater protection than the Fourth
Amendment in this context. Accordingly, they do not analyze the issue under the federal
constitution. Neither party has suggested performing an analysis under State v. Gunwall, 106
Wash. 2d 54, 720 P.2d 808 (1986) to determine whether article I, section 7 provides broader
protection than the Fourth Amendment under the specific facts of this case.
4
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No. 93315-4
grounds, without examining the question under either constitution. See, e.g., State
v. Acevedo, 159 Wn. App. 221,234,248 P.3d 526 (2010); State v. Vant, 145 Wn.
App. 592, 603-04, 186 P.3d 1149 (2008).
We have not, however, directly addressed the issue under our state
constitutional provision. Two inquiries are implicit in an article I, section 7 claim:
(1) whether the contested state action "disturbed" a person's "private affair[s]"
and, if so, (2) whether the action was undertaken with "authority of law." State v.
Reeder, 184 Wash. 2d 805, 814, 365 P.3d 1243 (2015). "Part of this inquiry focuses
on what kind of protection has been historically afforded to the interest asserted,
and part of it focuses on the nature and extent of the information that may be
obtained as a result of government conduct." Id. (citing State v. Miles, 160 Wash. 2d
236, 244, 156 P.3d 864 (2007)).
A. UAs Implicate a DUI Probationer's Privacy Interests
We first look to whether UAs disturb DUI probationers' "private affairs."
More specifically, we consider whether providing a urine sample is among '"those
privacy interests which citizens of this state have held, and should be entitled to
hold, safe from governmental trespass."' Id. (quoting In re Pers. Restraint of
Maxfield, 133 Wash. 2d 332, 339, 945 P.2d 196 (1997)).
5
State v. Olsen
No. 93315-4
We have consistently held that the nonconsensual removal of bodily fluids
implicates privacy interests. York, 163 Wash. 2d at 307; Juveniles, 121 Wash. 2d at 90;
Olivas, 122 Wash. 2d at 83; State v. Curran, 116 Wash. 2d 174, 184, 804 P.2d 558
(1991), abrogated on other grounds by State v. Berlin, 133 Wash. 2d 541, 947 P.2d
700 (1997). UAs implicate privacy interests in two ways. First, the act of
providing a urine sample is fundamentally intrusive. This is particularly true
where urine samples are collected under observation to ensure compliance. 2 See
York, 163 Wash. 2d at 308 ("Even if done in an enclosed stall, this is a significant
intn1sion on a student's fundamental right of privacy."). Second, "chemical
analysis of urine, like that of blood, can reveal a host of private medical facts about
[a person], including whether he or she is epileptic, pregnant, or diabetic." Skinner
v. Ry. Labor Executives' Ass'n, 489 U.S. 602,617,109 S. Ct. 1402, 103 L. Ed. 2d
639 (1989). These privacy interests are precisely what article I, section 7 is meant
2
The record does not contain details of the procedure used in this case, but direct observation of
urination is a common requirement for UAs conducted in the criminal justice system. See, e.g.,
U.S. DEP'T OF JUSTICE OFFICE OF JUSTICE PROGRAMS, BUREAU OF JUSTICE ASSISTANCE,
AMERICAN PROBATION AND PAROLE ASSOCIATION'S DRUG TESTING GUIDELINES FOR PRACTICES
FOR ADULT PROBATION AND PAROLE AGENCIES 42-43 (1991) (providing for "direct observation of
the collection process"), https:// https://www.appa-net.org/eweb/docs/appa/pubs/DTGPAPP A.pdf
[https://perma.cc/Y33J-BYY7]; KING COUNTY DRUG DIVERSION COURT, PARTICIPANT
HANDBOOK 8 (2015) ("The observed collection and scientific testing of your urine for drngs,
alcohol, and other mood-altering substances is an important part of [drng diversion court]."),
http://www.kingcounty.gov/-/media/ courts/Clerk/drngCourt/documents/K.CD DC_Participant_H
andbook.ashx?la=en [https://perma.cc/UT69-GJXA].
6
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No.93315-4
to protect. See State v. Jorden, 160 Wash. 2d 121, 126, 156 P.3d 893 (2007) ("[A]
central consideration [under article I, section 7] is ... whether the information
obtained via the governmental trespass reveals intimate or discrete details of a
person's life.").
However, probationers do not enjoy constitutional privacy protection to the
same degree as other citizens. Probationers have a reduced expectation of privacy
because they are "persons whom a court has sentenced to confinement but who are
serving their time outside the prison walls." State v. Jardinez, 184 Wash. App. 518,
523, 338 P.3d 292 (2014); see also State v. Simms, 10 Wash. App. 75, 82, 516 P.2d
1088 (1973) (parolees and probationers still "in custodia legis" until expiration of
maximum term of sentence). Therefore, the State may supervise and scrutinize a
probationer more closely than it may other citizens. State v. Lucas, 56 Wash. App.
236,240, 783 P.2d 121 (1989); State v. Parris, 163 Wash. App. 110, 117,259 P.3d
331 (2011 ). However, "this diminished expectation of privacy is constitutionally
permissible only to the extent 'necessitated by the legitimate demands of the
operation of the parole process."' Parris, 163 Wash. App. at 11 7 (internal quotation
marks omitted) (quoting Simms, 10 Wash. App. at 86).
Nevertheless, relying on State v. Surge, 160 Wash. 2d 65, 156 P.3d 208 (2007)
(plurality opinion), the State argues that UAs do not implicate Olsen's privacy
7
State v. Olsen
No. 93315-4
interests because probationers lack any privacy interest in their urine. We
disagree. Even though misdemeanant probationers have a reduced expectation of
privacy, this does not mean that they have no privacy rights at all in their bodily
fluids.
In Surge, we considered the constitutionality of a statute that authorized the
collection of convicted felons' DNA for identification purposes. Id. at 69. A
plurality held that the statute is constitutional, reasoning that incarcerated felons
lack a privacy interest in their identities due to their status. But Surge is
distinguishable from this case. First, it involved incarcerated felons, not
misdemeanant probationers. Id. at 72. Further, the lead opinion in Surge
emphasized that the DNA test was only for identification purposes. Id. at 79 ("the
statute does not unconstitutionally authorize disturbance of an individual's bodily
integrity by allowing the DNA results to be used for purposes other than identity").
The UAs here gather information beyond the probationer's identity by analyzing
urine for the presence of controlled substances. Although these tests are meant to
enforce probation conditions, they also collect evidence for possible revocation
hearings, implicating the probationer's liberty interests. See Simms, IO Wn. App.
at 83-84 (probationers have an interest in their continued liberty). Surge does not
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State v. Olsen
No. 93315-4
support the State's argument that DUI probationers lack any privacy interest
whatsoever in their urine.
In sum, even though probationers do not enjoy the same expectation of
privacy as other citizens, the UAs here still implicate their reduced privacy
interests under article I, section 7.
B. Random UAs ofDUI Probationers Do Not Violate Article I, Section 7
Because They Are Conducted with Authority of Law
Next, we turn to the second step of our inquiry under article I, section 7:
whether the invasion is performed with authority of law. The government has a
compelling interest in disturbing Olsen's privacy interest in order to promote her
rehabilitation and protect the public. The random testing here is narrowly tailored
to monitor compliance with a validly imposed probation condition. Thus, the
judgment and sentence constitutes sufficient "authority of law" to require random
UAs here.
Typically, under article I, section 7, an intrusion into an individual's private
affairs is conducted with authority of law when it is supported by a warrant or a
recognized exception to the warrant requirement. York, 163 Wash. 2d at 310. But
because probationers have a reduced expectation of privacy, the State does not
need a warrant, an applicable warrant exception, or even probable cause to search a
probationer. See Lucas, 56 Wash. App. at 243-44. However, as discussed above,
9
State v. Olsen
No. 93315-4
probationers do not forfeit their rights entirely and thus some authority of law must
still justify the intrusion into their reduced expectation of privacy. See Parris, 163
Wash. App. at 117.
We have examined what constitutes "authority of law" to drug test "ordinary
citizens," striking down suspicionless drug testing of students and other members
of the public. For example, in York, a plurality of this court held that no authority
of law justified drug testing of student athletes. 163 Wash. 2d at 315. We noted that
student athletes' privacy interests differ from those of convicted offenders, as
students have "merely attended school and chosen to play extracurricular sports."
Id.; see also Kuehn v. Renton Sch. Dist. No. 403, 103 Wn.2d 594,602,694 P.2d
1078 (1985) (plurality opinion) (school officials violated article I, section 7 when
they mandated across the board search of luggage as a condition of participating in
band concert tour). The lead opinion also declined to adopt a doctrine akin to the
federal "special needs" exception in the context of randomly drug testing student
athletes. York, 163 Wash. 2d at 316; see also Griffin v. Wisconsin, 483 U.S. 868, 873,
107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (defining the federal "special needs"
exception).
But DUI probationers are distinguishable from student athletes. Olsen was
convicted of a crime and is still in the State's legal custody. Simms, 10 Wash. App.
10
State v. Olsen
No. 93315-4
at 82. She has a duty to engage in her rehabilitation in exchange for the privilege
of being relieved from jail time and "should expect close scrutiny" of her conduct.
Lucas, 56 Wash. App. at 241; see also City of Spokane v. Marquette, 146 Wash. 2d 124,
132, 43 P.3d 502 (2002). Her privacy interests are more constrained than those of
a student athlete or a performer.
Justices of this court have suggested a balancing test may be appropriate to
evaluate whether there is "authority of law" in these circumstances. In Surge,
Justice Fairhurst suggested a compelling interests test, stating that "[ o]utside 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 oflaw." 160
Wash. 2d at 91 (Fairhurst, J., concurring in the dissent); see also Juveniles, 121
Wash. 2d at 97-98; State v. Farmer, 116 Wash. 2d 414, 430-31, 805 P.2d 200 (1991);
Robinson, 102 Wash. App. at 816-18. In York, Justice J.M. Johnson suggested a
similar test, noting that "a constitutional program of random suspicionless drug
testing of student athletes should advance compelling interests, show narrow
tailoring, and employ a less intrusive method of testing." 163 Wash. 2d at 342 (J.M.
Johnson, J., concurring).
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No. 93315-4
We find these considerations useful here, in light of probationers'
significantly reduced expectation of privacy and the unique nature and
rehabilitative goals of the probation system. We therefore examine whether a
compelling interest, achieved through narrowly tailored means, supports the
intrusion into a DUI probationer's reduced privacy interests.
1. The State Has a Strong Interest in Supervising DUI Probationers in
Order To Promote Rehabilitation and Protect the Public
Probation is "simply one point (or, more accurately, one set of points) on a
continuum of possible punishments." Griffin, 483 U.S. at 874. It is not a right, but
"an act of judicial grace or lenience motivated in part by the hope that the offender
will become rehabilitated." Gillespie v. State, 17 Wash. App. 363, 366-67, 563 P.2d
1272 (1977) (citing State ex rel. Woodhouse v. Dore, 69 Wn.2d 64,416 P.2d 670
(1966)). A sentencing court has great discretion to impose conditions and
restrictions of probation to "assure that the probation serves as a period of genuine
rehabilitation and that the community is not harmed by the probationer's being at
large." Griffin, 483 U.S. at 875; see also State v. Summers, 60 Wash. 2d 702, 707,
375 P.2d 143 (1962).
As such, the State has a compelling interest in closely monitoring
probationers in order to promote their rehabilitation. Parris, 163 Wash. App. at 117.
As probation officers' role is "rehabilitative rather than punitive in nature," they
12
State v. Olsen
No. 93315-4
must, then, have tools at their disposal in order to accurately assess whether
rehabilitation is taking place. State v. Reichert, 158 Wash. App. 374, 387, 242 P.3d
44 (2010); see also Simms, 10 Wash. App. at 85 (probation officers' duties differ
from police officers "'ferreting out crime"' (quoting Johnson v. United States, 333
U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948))).
The State has a duty not just to promote and assess the rehabilitation of a
probationer, but also to protect the public. State v. Kuhn, 7 Wash. App. 190, 194,
499 P.2d 49 (1972) ("[i]n granting or denying probation, the judge makes the
delicate balance of protecting the rights of the public and providing for the
rehabilitation of the offender"). The public safety risk here is substantial: fatalities
in crashes involving alcohol-impaired drivers continue to represent almost one-
third (31 percent) of the total motor vehicle fatalities in the United States. In
Washington, the proportion is even higher than the national average: impaired
driving is one of the leading contributors to highway deaths and major injuries. 3
Offender treatment and monitoring, however, are effective countermeasures to
prevent driving fatalities and reduce recidivism. See generally U.S. DEP'T OF
3
See WASH. STATE DEP'T OF TRANSP., WASHINGTON STATE STRATEGIC HIGHWAY SAFETY PLAN
6 (2013), https://www.wsdot.wa.gov/NR/rdonlyres/5FC5452D-8217-4F20-B2A9-
080593625C99/0/TargetZeroPlan.pdf [https://perma.cc/V2HW-XA4M]; MOTHERS AGAINST
DRUNK DRIVING, 2013 Drunk Driving Fatalities by State (drunk driving cause of 34 percent of
traffic deaths in Washington in 2013), http://www.madd.org/blog/2014/december/2013-drunk-
driving-fatalities.html [https://perma.cc/KTF4-L75B] (last visited July 27, 2017).
13
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No. 93315-4
TRANSP., NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., COUNTERMEASURES THAT
WORK: A HIGHWAY SAFETY COUNTERMEASURE GUIDE FOR STATE HIGHWAY
SAFETY OFFICES 1-4 (8th ed. 2015) (COUNTERMEASURES), https://www.nhtsa.gov/
sites/nhtsa. dot. gov/files/812202-countermeasuresthatworkSth. pdf [https ://perma.
cc/N4UC-6K8E].
Thus, the State has a compelling interest here in supervising a probationer in
order to assess his or her progress toward rehabilitation and compliance with
probation conditions. In the case of DUI probationers, monitoring and supervision
ensure that treatment is taking place and serve to protect the public in the case that
a probationer fails to comply with court-imposed conditions.
2. Random UAs Are Narrowly Tailored To Monitor Compliance with
Another Probation Condition
Next, we examine whether random UAs are a narrowly tailored means of
effectuating the State's goals. We find that here, random UAs are narrowly
tailored: they are a crucial monitoring tool that is limited in scope when imposed
only to assess compliance with a valid prohibition on drug and alcohol use.
a. Random UAs Are an Effective Monitoring Tool
We have approved of monitoring tools used to enforce a valid parole or
probation conditions. State v. Riles, 135 Wash. 2d 326, 339, 342, 957 P.2d 655
(1998) (discussing polygraph testing and UAs ), abrogated on other grounds by
14
State v. Olsen
No. 93315-4
State v. Valencia, 169 Wn.2d 782,239 P.3d 1059 (2010); see also State v.
Combs, 102 Wash. App. 949, 952, 10 P.3d 1101 (2000) (concluding that polygraph
testing may be ordered to monitor offender's compliance with other conditions).
As the Court of Appeals discussed in detail, the trial court permissibly conditioned
Olsen's release on her agreement to refrain from drug and alcohol use. See RCW
3.66.067; RCW 46.61.5055; State v. Williams, 97 Wash. App. 257, 262-63, 983 P.2d
687 (1999). It follows that the trial court also has authority to monitor compliance
with that condition through narrowly tailored means.
Random UAs are a permissible means here. UAs are an important
monitoring tool utilized by courts during the rehabilitative process of probation.
See, e.g., Williams, 97 Wash. App. at 260 (authorizing requirement that probationer
submit to a breath test, blood test, or UA upon probation officer's request); KING
COUNTYDRUGDNERSIONCOURT,PARTICIPANTHANDBOOK 5-7 (2015) (drug court
participants required to participate in random, observed UAs)
http://www.kingcounty.gov/-/media/courts/Clerk/drug Court/documents/KCDDC _
Participant_Handbook.ashx?la=en [https ://perma.cc/UT69-GJXA]. Unannounced
testing is, arguably, crucial if a court is to impose drug testing at all. 4 Random
4 See U.S. DEP'T OF JUSTICE OFFICE OF JUSTICE PROGRAMS, DRUG COURT PROGRAM OFFICE,
DRUG TESTING IN A DRUG COURT ENVIRONMENT: COMMON ISSUES TO ADDRESS (2000) (DRUG
TESTING) (stating that the effective operation of a drug court program is premised on having the
15
State v. Olsen
No. 93315-4
testing seeks to deter the probationer from consuming drugs or alcohol by putting
her on notice that drug use can be discovered at any time. It also promotes
rehabilitation and accountability by providing the probation officer with a
"practical mechanism to determine whether rehabilitation is indeed taking place."
Macias v. State, 649 S.W.2d 150, 152 (Tex. Crim. App. 1983) (weekly UAs).
Amicus curiae American Civil Liberties Union (ACLU) argues that random
UAs are unnecessary. As an alternative, it suggests that UAs should be permitted
only if a probation officer has a well-founded suspicion of a probation violation. It
points out that probation officers could detect alcohol or drug use by receiving a tip
or "tak[ing] note of drug paraphernalia or alcohol while visiting the probationer."
Br. of Amicus Curiae ACLU at 18. But such a standard would be impracticable
here. Drug or alcohol impairment can be difficult to detect by observation. See,
e.g., Skinner, 489 U.S. at 628-29. Additionally, as noted by the National Drug
Court Institute, "it is crucial that samples be collected in a random, unannounced
capacity to conduct frequent and random drng tests of participants, obtain test results
immediately, and maintain a high degree of accuracy in test results),
https ://www.ncjrs.gov/pdffiles 1/ojp/181103.pdf [https ://perma. cc/J7N9-C66P];
COUNTERMEASURES, supra, at 1-43 (driving while intoxicated offender monitoring, including
randomized drng testing proven to reduce recidivism); AM. Soc'Y OF ADDICTION MED., DRUG
TESTING: A WHITE PAPER OF THE AMERICAN SOCIETY OF ADDICTION MEDICINE 40 (2013)
(random testing preferred over scheduled testing), https://www.asam.org/docs/default-
source/public-po1icy-statements/drng-testing-a-white-paper-by-asam.pdf?sfvrsn=l25866c2_4
[https://perma.cc/C2PB-Q66DJ.
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State v. Olsen
No. 93315-4
manner," as random testing prevents individuals from planning ahead and avoiding
detection. 5 Requiring reasonable suspicion as a basis to test could make it
prohibitively difficult for the probation officer to carry out his or her
responsibilities of supervising the probationer and accurately assessing progress
toward rehabilitation. See State v. Zeta Chi Fraternity, 142 N.H. 16, 28, 696 A.2d
530 (1997) (citing State v. Berrocales, 141 N.H. 262, 681 A.2d 95 (1996)).
b. The Judgment and Sentence Limits the Scope of the Random UAs
To Monitor Compliance with a Valid Probation Condition
Amicus curiae also argues that allowing random UAs of DUI probationers
would open the door to permitting random, suspicionless searches of all
probationers. We disagree: random UAs are distinguishable from other, more
broad-sweeping probation conditions. The judgment and sentence here limits the
scope of the testing to monitor compliance with a valid restriction on drug and
alcohol use.
It is true that there are a host of cases in which lower courts analyzed other
parole and probation conditions and found that in those contexts, reasonable
suspicion is required to search the offender's home, vehicle, or electronic devices.
5
NAT'L DRUG COURT INST., THE DRUG COURT JUDICIAL BENCHBOOK 121,
https ://www.ndci.org/wp-content/uploads/14146_NDCI_Benchbook_v6. pdf
[https://perma.cc/36L3-XHMR]; see also DRUG TESTING, supra, at 10.
17
State v. Olsen
No. 93315-4
See Jardinez, 184 Wash. App. at 523-24 (search of parolee's iPod); Parris, 163 Wn.
App. at 117 (search of memory cards found in parolee's room); State v. Massey, 81
Wash. App. 198, 199, 913 P.2d 424 (1996) (parolee ordered to '"submit to testing
and searches of [his] person, residence and vehicle"' (alteration in original));
Lucas, 56 Wash. App. at 240 (search of probationer's home); State v. Lampman, 45
Wn. App. 228,233, 724 P.2d 1092 (1986) (search of probationer's purse); State v.
Keller, 35 Wash. App. 455, 457, 667 P.2d 139 (1983) (search of residence pursuant
to condition that "'[d]efendant shall submit to a search of residence, person and
vehicle upon request'"); State v. Coahran, 27 Wash. App. 664, 666-67, 620 P.2d 116
(1980) (search of parolee's truck). Courts require reasonable suspicion for such
searches in part because these intrusions run the risk of exposing a large amount of
private information.
As discussed above, UAs can also potentially reveal a variety of private facts
about a person. Skinner, 489 U.S. at 617. However, the judgment and sentence
here explicitly authorizes random UAs only to "ensure compliance with conditions
regarding the consumption of alcohol and controlled substances." CP at 5;
Williams, 97 Wash. App. at 263-64. While the record does not contain information
about the specific procedure used to conduct the UAs, we apply a commonsense
reading to the judgment and sentence and find that it authorizes urinalysis only to
18
State v. Olsen
No. 93315-4
test for drugs and alcohol. See State v. Figeroa Martines, 184 Wash. 2d 83, 93, 355
P.3d 1111 (2015) (applying a commonsense reading to warrant and concluding it
authorized tests performed to detect the presence of drugs or alcohol). It impliedly
limits the scope of the testing to monitor only Olsen's compliance with an
underlying probation condition. See Combs, 102 Wash. App. at 953 (scope of
community placement order impliedly limits scope of polygraph testing).
Olsen was convicted of DUI, a crime involving the abuse of drugs and
alcohol. A probationer convicted of DUI can expect to be monitored for
consumption of drugs and alcohol, but should not necessarily expect broader-
ranging intrusions that expose large amounts of private information completely
unrelated to the underlying offense. For example, a probation condition
authorizing suspicionless searches of Olsen's home might turn up evidence of drug
and alcohol use, but would almost certainly reveal other, unrelated information
about her private affairs. See State v. Winterstein, 167 Wash. 2d 620, 630, 220 P .3d
1226 (2009). But random UAs, if limited to monitoring for the presence of
alcohol, marijuana, or nonprescribed drugs, reveal a comparatively limited amount
of private information. Unlike a search of a home, the information potentially
revealed is directly linked to the "class of criminal behavior" that Olsen engaged
in. Juveniles, 121 Wash. 2d at 92-93. Random UAs also run a smaller risk of
19
State v. Olsen
No. 93315-4
inadvertently exposing other private information unrelated to the underlying
prohibition on drug and alcohol use.
We also reiterate that DUI probationers have been sentenced to confinement
but are "serving their time outside the prison walls." Jardinez, 184 Wash. App. at
523. Keeping that in mind, UAs have the same privacy implications whether an
individual is serving her time in prison or on probation. A search of a
probationer's home, by comparison, has much wider-ranging privacy implications
than a search of a prisoner's cell. For example, a search of a residence implicates
not just the probationer's privacy, but potentially the privacy of third parties. In
Winterstein, we noted that third party privacy interests must be considered when
probation officers seek to search a probationer's residence, and held that probation
officers are required to have probable cause to believe that their probationers live
at the residence they seek to search. 167 Wash. 2d at 630. But such considerations
are inapplicable in this context.
Accordingly, we hold that random UAs, under certain circumstances, are a
constitutionally permissible form of close scrutiny of DUI probationers. We find
that the testing here is a narrowly tailored monitoring tool imposed pursuant to a
valid prohibition on drug and alcohol use. Random UAs are also directly related to
a probationer's rehabilitation and supervision.
20
State v. Olsen
No. 93315-4
However, we clarify that our decision today does not mean that probationers
have no protection. Random UAs could potentially lack "authority of law" absent
a sufficient connection to a validly imposed probation condition or if the testing is
conducted in an unreasonable manner. We also reaffirm that general, exploratory
searches are not permissible under article I, section 7. See Kuehn, l 03 Wn.2d at
601-02 (general searches are "anathema to Fourth Amendment and Const. art. 1,
§ 7 protections"). As such, while we find that random UAs may be permissible in
order to monitor compliance with valid probation conditions, they may not be used
impermissibly as part of "a fishing expedition to discover evidence of other crimes,
past or present." Combs, 102 Wash. App. at 953.
CONCLUSION
While random UAs of DUI probationers do implicate privacy interests, the
UAs here are narrowly tailored and imposed to monitor compliance with a valid
probation condition. The judgment and sentence impliedly limits the scope of
testing to monitor only for alcohol and controlled substances. Taking into
consideration Olsen's reduced privacy interests as a probationer, we conclude that
the random UAs here were conducted with "authority of law" under article I,
section 7 of our state constitution. We affirm the Court of Appeals.
21
State v. Olsen
No. 93315-4
WE CONCUR:
22
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
No. 93315-4
FAIRHURST, C.J. ( dissenting)-When the State collects and analyzes a
probationer's urine, it disturbs that probationer's private affairs. For decades,
Washington courts have held that similar intrusions bear the authority of law only
when supported by a reasonable suspicion that a probation condition has been
violated. This straightforward application of existing law should control our
decision here. But, uncomfortable with this result, the majority declines to apply the
law as it is and instead adopts a new test-cut from whole cloth and proposed by no
party in this case-to achieve its desired outcome. This change in the law diminishes
the promise of privacy enshrined in the Washington Constitution and confuses the
standard we use to evaluate probationary searches. For these reasons, I dissent.
I agree with the majority that although probationers have a reduced privacy
interest, a urinalysis test nevertheless implicates their privacy under article I, section
7 of the Washington Constitution. The remaining issue is whether this intrusion is
1
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
conducted with the authority of law. See Yorkv. Wahkiakum Sch. Dist. No. 200, 163
Wash. 2d 297, 306, 178 P.3d 995 (2008) (plurality opinion).
Typically, a search is conducted with the authority oflaw when it is supported
by a warrant or a recognized exception to the warrant requirement. Id. at 310. But
I agree with the majority that because probationers have a reduced expectation of
privacy, the State does not need a warrant, an applicable warrant exception, or even
probable cause to search a probationer. See State v. Lucas, 56 Wash. App. 236, 243-
44, 783 P.2d 121 (1989). Still, the State may not engage in suspicionless searches
of probationers. Id.; see also York, 163 Wash. 2d at 314 ("[W]e have a long history of
striking down exploratory searches not based on at least reasonable suspicion.");
State v. Jorden, 160 Wash. 2d 121, 127, 156 P.3d 893 (2007) ("[T]his court has
consistently expressed displeasure with random and suspicionless searches,
reasoning that they amount to nothing more than an impermissible fishing
expedition."). Instead, "[a] warrantless search of [a] parolee or probationer is
reasonable if an officer has well-founded suspicion that a violation has occurred."
State v. Parris, 163 Wash. App. 110,119,259 P.3d 331 (2011).
Indeed, every case addressing the issue has held that a warrantless search of a
probationer's person, residence, or effects must be based on a reasonable suspicion
that a probation violation has occurred. State v. Jardinez, 184 Wash. App. 518, 523-
24, 338 P.3d 292 (2014); Parris, 163 Wash. App. at 117; Lucas, 56 Wash. App. at 240;
2
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
State v. Lampman, 45 Wn. App. 228,233, 724 P.2d 1092 (1986); State v. Keller, 35
Wash. App. 455, 459-60, 667 P.2d 139 (1983); State v. Coahran, 27 Wash. App. 664,
666-67, 620 P.2d 116 (1980); State v. Simms, 10 Wash. App. 75, 85-86, 516 P.2d 1088
(1973). In State v. Massey, 81 Wash. App. 198, 200-01, 913 P.2d 424 (1996), the
Court of Appeals held that searches pursuant to a probation condition identical to
the one at issue here must be supported by reasonable suspicion. 1 I would hold that
probationary urinalysis tests are subject to the same requirement.
Reasonable suspicion is not an onerous burden. In this context, reasonable
suspicion is something less than probable cause and analogous to the requirements
of a Terry 2 stop-articulable facts and rational inferences suggesting a substantial
possibility that a probation violation has occurred. Parris, 163 Wash. App. at 119.
This minimal restraint on the State is intended to prevent arbitrary and capricious
searches. See Simms, 10 Wash. App. at 84 ("Considering the interest of the parolee in
his liberty and privacy, it would seem to be beyond question that to subject the
1
The Court of Appeals upheld the condition, explaining that although the language
contained no "reasonable suspicion" requirement, the issue of the constitutionality of the condition
was not ripe for review because the probationer had yet to be searched. Massey, 81 Wash. App. at
200. The court speculated that reasonable suspicion language might not be required in the
probation condition, as courts have upheld other conditions without such language. Id. at 201
(citing Lucas, 56 Wash. App. at 237-38). Nevertheless, the court noted that "regardless of whether
the sentencing court includes such language in its order, the standard for adjudicating a challenge
to any subsequent search remains the same: Searches must be based on reasonable suspicion." Id.
2
Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
3
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
parolee to arbitrary and capricious searches at the whim of his parole officer would
be constitutionally impermissible.").
But the majority removes this minimal restraint, concluding that suspicionless
urinalysis tests are constitutionally permissible because they are narrowly tailored to
a compelling state interest. Majority at 20-21. Before today, this test was not the
law; it has been "Frankensteined" from parts scattered across concurrences that, at
the time, could not garner majority support from this court. 3 This new test brings
our jurisprudence closer to federal Fourth Amendment analysis and opens the door
to substantial confusion in the probationary context and beyond.
Federal courts permit warrantless searches under the Fourth Amendment to
the United States Constitution when the government can show a special need beyond
the normal needs for law enforcement that makes the probable cause requirement
impracticable. Skinner v. Ry. Labor Execs.' Ass 'n, 489 U.S. 602, 619, 109 S. Ct.
1402, 103 L. Ed. 2d 639 (1989). The Supreme Court has applied this doctrine to
justify warrantless probationary searches. Griffin v. Wisconsin, 483 U.S. 868, 873,
3
The majority also cites State v. Farmer, 116 Wash. 2d 414, 805 P.2d 200 (1991). There, we
suggested that a "fundamental liberty interest may be justifiably limited by a narrowly drawn,
compelling state interest." Id. at 429. But we recognized this theory was limited to only four
unique circumstances not relevant here, and we ultimately declined to apply such a test in that
case, which involved nonconsensual HIV (human immunodeficiency virus) testing. Id. at 431
(nonconsensual HIV testing unconstitutional as applied to the defendant). Since Farmer, we have
further declined to apply this test despite numerous opportunities to do so. Until today, it appears
no Washington court has relied on Farmer to justify an invasion of privacy under article I, section
7.
4
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). Although we have thus far declined to
adopt a special needs exception to the warrant requirement under article I, section 7,
majority at 10, today the majority muddies the waters by adopting its functional
equivalent.
Despite using slightly different language, the majority's new test bears all the
indicia of the federal special needs exception under the Fourth Amendment. Like
the majority's test, the special needs exception requires a compelling state interest.
See, e.g., Nat'! Treasury Emps. Union v. Von Raab, 489 U.S. 656, 675 n.3, 109 S.
Ct. 1384, 103 L. Ed. 2d 685 (1989) ("It is sufficient that the Government have a
compelling interest in preventing an otherwise pervasive societal problem.").
Further, the state must demonstrate that the warrant or probable cause requirement
would be impracticable given the nature of the compelling interest at stake. Griffin,
483 U.S. at 873. The majority echoes this reasoning as well, noting that
demonstrating reasonable suspicion "could make it prohibitively difficult for the
probation officer to carry out his or her responsibilities." Majority at 16-17.
Typically, special needs searches must also be narrowly tailored in the sense
that the intrusion is minimal. See, e.g., Skinner, 489 U.S. at 624-25; see also Knox
County Educ. Ass 'n v. Knox County Ed. ofEduc., 158 F.3d 361,384 (6th Cir. 1998)
(noting the state's interest in a drug testing regime for teachers outweighed the
teachers' privacy interests because it "is circumscribed, narrowly-tailored, and not
5
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
overly intn1sive, either m its monitoring procedures or m its disclosure
requirements"). Indeed, many federal courts recharacterize the special needs
doctrine into nearly the same formulation that the majority adopts here. See Skinner,
489 U.S. at 624 ("[W]here the privacy interests implicated by the search are minimal,
and where an important governmental interest furthered by the intrusion would be
placed in jeopardy by a requirement of individualized suspicion, a search may be
reasonable despite the absence of such suspicion."); see also United States v.
Stewart, 468 F. Supp. 2d 261,268 (D. Mass. 2007) ("[T]he 'special needs' exception
requires a governmental purpose narrowly tailored to the means used to effectuate
that purpose." (citing Skinner, 489 U.S. at 629-30)), rev 'don other grounds, 532
F.3d 32 (1st Cir. 2008); Green v. Berge, 354 F.3d 675, 679 (7th Cir. 2004)
("Wisconsin's DNA [( deoxyribonucleic acid)] collection statute is, we think,
narrowly drawn, and it serves an important state interest. ... The Wisconsin law
withstands constitutional attack under the firmly entrenched 'special needs'
doctrine."); compare Skinner, 489 U.S. at 619 (describing special needs analysis as
"balanc[ing] the governmental and privacy interests to assess the practicality of the
warrant and probable-cause requirements"), with majority at 11 (stating a "balancing
test may be appropriate" to determine whether the state interest justifies the intrusion
here). In York, this court equated the special needs doctrine to the strict scrutiny
analysis the majority now adopts, emphasizing that no such doctrine exists under
6
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
article I, section 7. See York, 163 Wash. 2d at 314 ("[W]e have not created a general
special needs exception or adopted a strict scrutiny type analysis that would allow
the State to depart from the warrant requirement whenever it could articulate a
special need beyond the normal need for law enforcement." (emphasis added)).
Despite any minute differences, the parallels are too substantial and too
significant to deny. Apart from the magic words, the majority's strict scrutiny test
is nearly indistinguishable from the federal special needs doctrine. This expansion
of article I, section 7 jurisprudence could have a substantial effect on how we
evaluate searches in the probationary context and beyond. Indeed, it is difficult to
imagine a warrantless government intrusion that would satisfy the special needs
doctrine but not the strict scrutiny test the court adopts today.
Of course, looking to the federal courts for guidance is not necessarily unusual
or improper. When appropriate, we occasionally consider federal constitutional
analysis when reviewing analogous provisions in the Washington Constitution. See,
e.g., State v. Lee, 135 Wn.2d 369,387,957 P.2d 741 (1998) (Absent a demonstration
that the Washington Constitution provides broader protection, we will interpret it
"coextensively with its parallel federal counterpart.").
7
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
But the majority has co-opted the special needs doctrine surreptitiously.
Rather than expressly adopt such a doctrine, which we have contemplated before, 4
the majority instead commandeers the doctrine's reasoning wholesale and takes
great care to avoid any implication that a special needs doctrine now exists under
article I, section 7. This is confusing at best-is there a special needs doctrine or
not?-and disingenuous at worst. In York, 163 Wash. 2d at 314, we said that no such
doctrine existed in Washington, but that no longer appears to be true.
One reason the majority might be hesitant to formally adopt a special needs
doctrine is because it takes us closer to Fourth Amendment jurisprudence despite
our repeated affirmations that article I, section 7 provides broader protection than its
federal counterpart. See, e.g., State v. Ladson, 138 Wash. 2d 343, 348-49, 979 P.2d
833 (1999). The majority's decision to emulate federal courts is especially peculiar
here, given our promise to "offer heightened protection for bodily functions
compared to the federal courts." York, 163 Wash. 2d at 307. This difference stems
from the text of article I, section 7, which provides that "[n]o person shall be
disturbed in his private affairs, or his home invaded, without authority of law."
4
The lead opinion in York, signed by four justices, expressly declined to adopt a special
needs exception or an equivalent strict scrutiny test under article I, section 7. 163 Wash. 2d at 314.
However, a concurring opinion, also signed by four justices, agreed that no special needs exception
applied in that case but left the door open to adopting such an exception under article I, section 7.
Id. at 329 ("The special needs exception is consistent with well-established common law principles
governing warrantless searches and, thus, comports with article I, section 7." (Madsen, J.,
concurring)).
8
State v. Olsen, No. 93315-4
(Fairhurst, C .J., dissenting)
WASH. CONST. art. I, § 7. Article I, section 7 offers an affirmative promise of
privacy, whereas searches under the Fourth Amendment need only be reasonable.
U.S. CONST. amend. IV; see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.
Ct. 1943, 164 L. Ed. 2d 650 (2006) ("the ultimate touchstone of the Fourth
Amendment is 'reasonableness"' (quotingFlzppo v. West Virginia, 528 U.S. 11, 13,
120 S. Ct. 7, 145 L. Ed. 2d 16 (1999))). The "reasonableness" standard at the heart
of the Fourth Amendment provided the basis for the special needs doctrine in the
first place. See Skinner, 489 U.S. at 618-20 (balancing governmental and privacy
interests is appropriate to determine whether a search was reasonable). Therefore,
the special needs doctrine-or the functional equivalent adopted by the majority-
is inconsistent with article I, section 7 insofar as it is rooted in the Fourth
Amendment's "reasonableness" standard:
Thus, where the Fourth Amendment precludes only "unreasonable"
searches and seizures without a warrant, article I, section 7 prohibits
any disturbance of an individual's private affairs "without authority of
law." [York, 163 Wash. 2d at 305-06.] This language not only prohibits
unreasonable searches, but also provides no quarter for ones which, in
the context of the Fourth Amendment, would be deemed reasonable
searches and thus constitutional.
State v. Valdez, 167 Wn.2d 761,772,224 P.3d 751 (2009). Even though the majority
does not claim to do so, by adopting what is essentially a special needs analysis, it
diminishes the privacy protections enshrined in article I, section 7 and brings us
closer to Fourth Amendment jurisprudence. Alas, there is little need to adopt the
9
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
special needs doctrine now, given the majority has already provided a more than
adequate doppelganger.
In dictum, the majority attempts to rein in its creation by assuring us the same
reasoning would not apply to other probationary searches. Majority at 17. But this
makes little sense-if a narrowly tailored search furthering a compelling government
interest justifies the intrusion here, why would the same reasoning not justify other
intrusions? So long as the State can meet this new standard, this court would be
compelled to oblige under the majority's reasoning. It would be quite remarkable
indeed if probationary urinalysis searches were such constitutional anomalies that
this court needed to develop a legal framework so unique that it is disposed of and
forgotten after one use.
Nevertheless, the majority attempts to distinguish urinalysis testing from other
probationary searches by describing it as merely a "monitoring tool" used to ensure
compliance with probationary conditions. Majority at 14. But this non sequitur is a
semantic trick. All probationary searches are monitoring tools in the sense that they
are intended to ensure compliance with probationary conditions. See, e.g., Lucas,
56 Wash. App. at 240-41 (The State has an interest in supervising probationers subject
to probation conditions, and therefore probationers "should expect close scrutiny.");
see also Jardinez, 184 Wash. App. at 523-24 (purpose of probationary searches is to
determine whether probation violation occurred); see also Griffin, 483 U.S. at 883
10
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
("One important aspect of superv1s10n 1s the monitoring of a probationer's
compliance with the conditions of his probation. In order to ensure compliance with
those conditions, a probation agent may need to search a probationer's home to
check for violations.").
To support this distinction between a "monitoring tool" and other
probationary searches, the majority cites three inapposite cases. See State v. Riles,
135 Wash. 2d 326, 957 P.2d 655 (1998), abrogated by State v. Sanchez Valencia, 169
Wn.2d 782,239 P.3d 1059 (2010); State v. Combs, 102 Wash. App. 949, 10 P.3d 1101
(2000); State v. Williams, 97 Wash. App. 257, 983 P.2d 687 (1999).
Neither Riles nor Combs involved urinalysis testing or an analogous search.
Riles involved polygraph and plethysmograph testing as a condition of sexual
deviancy therapy for individuals convicted of sex crimes. 135 Wash. 2d at 337. This
court has never suggested that polygraph or plethysmograph testing implicates
privacy concerns in the way that urinalysis tests do. See, e.g., York, 163 Wash. 2d at
307; see also majority at 5-6. Further, Riles did not address the constitutionality of
these alleged "monitoring tools" under either the Fourth Amendment or article I,
section 7, it addressed only whether the Sentencing Reform Act of 1981, chapter
9.94A RCW, authorized these conditions. Riles, 135 Wash. 2d at 340. Although Riles
briefly mentions urinalysis testing in dictum, it did not hold that urinalysis testing is
merely a "monitoring tool" that differs from other probationary searches. Like Riles,
11
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
Combs involved polygraph testing as a probation condition for a defendant convicted
of child molestation. 102 Wash. App. at 952-53. It did not discuss the constitutionality
of this condition, nor did it discuss urinalysis testing or any analogous search.
Williams involved urinalysis testing as a probationary condition, but it did not
address the issue here-whether random, suspicionless urinalysis tests comply with
article I, section 7. There, a probation officer ordered Jeremiah Williams to submit
to a urinalysis test pursuant to a probation condition, and Williams failed to comply.
Williams, 97 Wash. App. 260-61. After a probation hearing, the commissioner
revoked Williams' probation and sentenced him to 180 days of confinement. Id.
Williams appealed, arguing that the alcohol and drug conditions were not authorized
by statute and that the commissioner unlawfully delegated judicial authority to the
probation department. Id. at 262. He did not challenge the urinalysis test on a
constitutional basis.
Nor could he. The facts in Williams unambiguously demonstrate that the
probation officer had reasonable suspicion to require a urinalysis test. Before the
probation officer ordered the test, Williams actually admitted that he had been using
marijuana. Id. at 261. It was this admission that motivated the probation officer to
order the test. Id. This admission is more than sufficient to establish reasonable
suspicion to conduct a probationary search. See, e.g., Parris, 163 Wash. App. at 119
(discussing reasonable suspicion standard). If anything, Williams demonstrates how
12
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
probationary urinalysis tests should work. It supports the proposition that once a
probation officer requires a probationer to submit to a search given reasonable
suspicion that the probationer has violated a validly imposed probation condition,
the probationer must comply. Williams in no way supports the majority's theory
that urinalysis testing implicates only minimal privacy interests because it is merely
a monitoring tool. Frankly, none of the authority the majority cites suggests that
monitoring tools are subject to different analysis under article I, section 7.
What the majority means to say (and eventually does) is that a urinalysis test
is less invasive than other searches-such as a search of one's home, vehicle, or
electronic devices-because those searches might reveal more sensitive information.
Majority at 17-18. This reasoning is at least consistent with the majority's test.
Presumably, a less invasive search is more narrowly tailored and thus more likely to
withstand constitutional scrutiny. But the only question relevant to this analysis is
the nature of the privacy interest intruded and the degree of the invasion. The
contrived distinction between a monitoring tool and other probationary searches is
irrelevant and unhelpful in addressing that question. After all, a search by any other
name still implicates article I, section 7.
And even accepting the majority's test, it is questionable whether random,
suspicionless urinalysis testing is narrowly tailored enough to justify disposing of
the reasonable suspicion requirement. The majority insists urinalysis testing is less
13
State v. Olsen, No. 93 315-4
(Fairhurst, C.J., dissenting)
invasive than other searches because it does not expose "a large amount of private
information." Majority at 18. But this fails to recognize the full nature of the privacy
interest at stake. It is not merely the information obtained but the method of
urinalysis testing that invades an individual's privacy. The majority recognizes this
concern when it concludes that probationers have a privacy interest in their urine but
conveniently forgets it when it determines urinalysis testing is not very invasive.
Majority at 6, 17-18; see also York, 163 Wash. 2d at 334 ("'[i]t is difficult to imagine
an affair more private than the passing of urine."' (alteration in original) (quoting
Robinson v. City of Seattle, 102 Wash. App. 795, 818, 10 P.3d 452 (2000))); see also
Skinner, 489 U.S. at 617 ("'There are few activities more personal or private than
the passing of urine.'" ( quoting Von Raab, 489 U.S. at 175)). A probation officer
may be able to learn more about probationers' lives by searching their cars rather
than by observing their exposed genitalia while they urinate, but that does not mean
the latter is any less invasive.
Further, the majority overstates the impracticality of the reasonable suspicion
requirement. In fact, the reasonable suspicion requirement comports with the
majority's strict scrutiny test by providing a less drastic means for the State to
achieve the same goals. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,
17, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (State action is narrowly tailored when
14
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
"it has selected the 'less drastic means' for effectuating its objectives." (quoting
Dunn v. Blumstein, 405 U.S. 330,343, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972))).
Reasonable suspicion is a low burden. A trained probation officer could
observe visible signs of impairment or other aspects of a probationer's demeanor
that indicate substance use. A probation officer may observe evidence of substance
use through routine visits to probationers or unannounced5 check-ins. A probation
officer could receive tips or interview witnesses to determine whether a probation
violation has occurred.
A probation officer may even discover facts creating an inference that a
violation has occurred through regular interaction with the probationer. For
example, in United States v. Duff, 831 F.2d 176 (9th Cir. 1987), the Ninth Circuit
noted that a urinalysis test of a probationer must be supported by reasonable
suspicion. 6 Id. at 179. The court noted that reasonable suspicion existed given the
probationer's behavior:
5
The majority suggests that reasonable suspicion would be impractical in part because
urinalysis tests must be unannounced in order to serve the State's rehabilitative interests. Majority
at 16-17. But whether a search is announced or not has nothing to do with the degree of
individualized suspicion supporting that search. Indeed, law enforcement officers do not announce
every search they perform before they begin, even when those searches are supported with a
warrant. In other words, reasonable suspicion would provide probation officers the authority to
conduct a urinalysis test. Whether they give the probationer advance notice as to when the test
will occur is within their discretion.
6
I note that some federal courts, despite employing the special needs doctrine, have held
that urinalysis testing of probationers must be supported by a reasonable suspicion that a probation
violation occurred. See, e.g., United States v. Giannetta, 909 F.2d 571, 576 (1st Cir. 1990)
(urinalysis test is justified "so long as the decision to search was in fact narrowly and properly
15
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
The probation officer had reasonable suspicion that Duff might be using
drugs. Duff was not gainfully employed, he had allegedly filled out
false prescriptions for Percodan, he allegedly was involved with a group
that burglarized his house, and he consistently failed to meet with or
cooperate with his probation officer.
Id. As in Diif.f, a trained probation officer may be able to learn certain facts that
indicate relapse into substance use. For example, persistent unemployment,
fraternization with known enablers, consistent failure to cooperate, along with other
factors, may give rise to an inference that the probationer is at risk of using alcohol
or a controlled substance. There may be other facts, short of direct observation, that
rehabilitative professionals consider relevant in determining whether an individual
is using substances. These facts would not be difficult to obtain and would likely
satisfy the reasonable suspicion standard. Contrary to the majority's assertion, the
reasonable suspicion standard would not prevent the State from effectuating its
goals, and it arguably comports with the majority's strict scrutiny analysis.
Nevertheless, the majority rejects the reasonable suspicion standard. But it
assures us that, regardless, urinalysis tests must be conducted "in a []reasonable
manner," and that they cannot be "exploratory." Majority at 20. But these promises
ring hollow. How can a court evaluate the reasonableness of a search if there is not
made on the basis of reasonable suspicion"); see also Duff, 831 F.2d at 179. These cases reveal
the irony in the majority's opinion. Despite acknowledging that the Washington Constitution
provides "increased protection" for the collection and testing of bodily fluids when compared to
federal courts, majority at 3, the ultimate result actually provides less.
16
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
even a minimal requirement of individualized suspicion to justify it? Typically, the
reasonable suspicion standard protects probationers from unreasonable, exploratory,
or otherwise arbitrary or capricious searches. See Simms, 10 Wash. App. at 84. By
removing the reasonable suspicion standard, the majority's opinion can no longer
assure the same protection because it essentially makes probationary urinalysis tests
unreviewable.
In conclusion, the majority's opinion adopts a strict scrutiny test that is the
functional equivalent of the federal special needs doctrine. This expansion of our
jurisprudence diminishes the differences between the Fourth Amendment and article
I, section 7. Further, this decision confuses the standard by which we evaluate
probationary searches and may result in consequences beyond the probationary
context. I dissent.
17
State v. Olsen, No. 93315-4
(Fairhurst, C.J., dissenting)
18