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State v. Olsen

Supreme Court of Washington, En Banc

August 3, 2017


          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.


         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 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 Wn.App. 264, 272, 374 P.3d 1209 (2016). Olsen then petitioned this court for review, which was granted. State v. Olsen, 186 Wn.2d 1017, 383 P.3d 1020 (2016).


         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?


         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 Wn.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 functions." [1] 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 Wn.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 Wn.2d 80, 98, 847 P.2d 455 (1993); see also State v. Olivas, 122 Wn.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 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 Wn.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 Wn.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 Wn.2d 332, 339, 945 P.2d 196 (1997)).

         We have consistently held that the nonconsensual removal of bodily fluids implicates privacy interests. York, 163 Wn.2d at 307; Juveniles, 121 Wn.2d at 90; Olivas, 122 Wn.2d at 83; State v. Curran, 116 Wn.2d 174, 184, 804 P.2d 558 (1991), abrogated on other grounds by State v. Berlin, 133 Wn.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 Wn.2d at 308 ("Even if done in an enclosed stall, this is a significant intrusion 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 to protect. See State v. Jorden, 160 Wn.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 Wn.App. 518, 523, 338 P.3d 292 (2014); see also State v. Simms, 10 Wn.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 Wn.App. 236, 240, 783 P.2d 121 (1989); State v. Parris, 163 Wn.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 Wn.App. at 117 (internal quotation marks omitted) (quoting Simms, 10 Wn.App. at 86).

         Nevertheless, relying on State v. Surge, 160 Wn.2d 65, 156 P.3d 208 (2007) (plurality opinion), the State argues that UAs do not implicate Olsen's privacy 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, 10 Wn.App. at 83-84 (probationers have an interest in their continued liberty). Surge does not 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 of DUI 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 Wn.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 Wn.App. at 243-44. However, as discussed above, 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 Wn.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 Wn.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 Wn.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 Wn.App. 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 Wn.App. at 241; see also City of Spokane v. Marquette, 146 Wn.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 of law." 160 Wn.2d at 91 (Fairhurst, J., concurring in the dissent); see also Juveniles, 121 Wn.2d at 97-98; State v. Farmer, 116 Wn.2d 414, 430-31, 805 P.2d 200 (1991); Robinson, 102 Wn.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 Wn.2d at 342 (J.M. Johnson, J., concurring).

         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, ...

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