       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                          )      No. 69663-7-1
                     Respondent,                                             CZ
                                                                             r~
                                          )      DIVISION ONE                (V)

              v.
                                                                                    corn


JOSE FIGEROA MARTINES,                    )      PUBLISHED OPINION
                                                                             PO     o   —-

                     Appellant.           )      FILED: July 21,   2014      —i




       Becker, J. — The extraction of blood from a drunk driving suspect is a

search. Testing the blood sample is a second search. It is distinct from the initial

extraction because its purpose is to examine the personal information blood

contains. We hold that the State may not conduct tests on a lawfully procured

blood sample without first obtaining a warrant that authorizes testing and

specifies the types of evidence for which the sample may be tested.

       The events leading to this appeal occurred on June 20, 2012. Appellant

Jose Martines was observed driving his sport utility vehicle erratically on State
                                                                                    SOVTA/FECOPA
                                                                                               UFRT
Route 167. He veered into another car, careened across the highway, bounced

off the barrier, and rolled over. Washington State Trooper Dennis Tardiff arrived

and took Martines into custody. Martines smelled of intoxicants, had bloodshot

and watery eyes, and stumbled while walking.

       Trooper Tardiff sought a warrant to extract a blood sample from Martines.

His affidavit of probable cause stated that a blood sample "may be tested to
No. 69663-7-1/2



determine his/her current blood alcohol level and to detect the presence of any

drugs that may have impaired his/her ability to drive." He obtained a warrant that

authorized a competent health care authority to extract a blood sample and

ensure its safekeeping. The warrant did not say anything about testing of the

blood sample.

       Pursuant to the warrant, a blood sample was drawn from Martines at a

local hospital. Then it was tested for the presence of drugs and alcohol. The test

results indicated that Martines had a blood alcohol level of .121 within an hour

after the accident and that the drug diazepam (Valium) was also present.

Martines had a prior conviction for vehicular assault while driving under the

influence. The State charged him with felony driving under the influence of an

intoxicant, RCW 46.61.502(6)(b)(ii).

       Martines moved to suppress evidence of drugs or drug testing. He argued

there was no probable cause to support testing his blood for drugs because the

witnesses observed only the signs and smells of alcohol. The trial court found

that probable cause to test for alcohol included probable cause to test for drugs.

       At trial, a toxicologist presented the results of the blood test. She testified

that both alcohol and diazepam can affect driving ability.

       To convict Martines as charged, one of the elements the jury had to find

was that at the time of driving a motor vehicle, he:

            (a) was under the influence of or affected by intoxicating liquor
            or any drug; or
            (b) was under the combined influence of or affected by
            intoxicating liquor and a drug.
No. 69663-7-1/3



The prosecutor argued in closing that the blood test results confirmed the

opinions of various witnesses who believed Martinez was intoxicated based on

their observations at the scene. "You take a look at all of that together, and it's

pretty clear the defendant was under the influence at that time, alcohol and

drugs."

          The jury returned a guilty verdict. Martines appeals.

          On appeal, Martines briefly repeats his argument that without specific

facts in the search warrant supporting a suspicion that Martines was affected by

a drug, it was improper to admit the results of the laboratory tests for the

presence of drugs. We do not address that argument in this opinion. The

primary issue Martines raises on appeal is that testing a blood sample for any

purpose is a search for which a warrant is required. Because the warrant

authorizing the extraction of blood did not specifically authorize blood testing of

any kind, Martines contends that the results should have been suppressed as the

fruit of an illegal search. This additional issue is constitutional in nature, and

therefore we consider it even though it is raised for the first time on appeal. RAP

2.5(a).

          The State responds that a warrant is needed only for the extraction of

blood and no further authority is needed to test the extracted sample. It is

undisputed that the State had probable cause to suspect that Martines was

driving under the influence of alcohol and that evidence of the crime could be

found in his blood. In the State's view, once the police obtained a blood sample

as authorized by the warrant, they could subject it to testing without any further
No. 69663-7-1/4



showing of probable cause and without a search warrant authorizing testing and

particularly identifying the types of evidence for which the sample could be

tested. The State asserts that blood is a thing to be seized, not a place to be

searched, and once a blood sample is lawfully seized, the individual whose blood

has been seized no longer has a constitutionally protected privacy interest in it.

       The principal case upon which the State relies is State v. Cheatam. 150

Wn.2d 626, 81 P.3d 830 (2003). The defendant in Cheatam was suspected of

rape. He was arrested on an unrelated charge and booked into jail. His clothing

and personal effects were inventoried and stored in the jail's property room. A

detective took his shoes from the property room and confirmed a visual match

between the tread and a footprint near the site of the alleged rape. The State

charged Cheatam with rape, the court admitted the shoe evidence at the trial,

and Cheatam was convicted. He argued on appeal, unsuccessfully, that the

shoe evidence should have been suppressed as the fruit of a warrantless search.

Cheatam, 150 Wn.2d at 634. The court held that "once an inmate's personal

effects have been exposed to police view in a lawful inventory search and stored

in the continuous custody of the police, the inmate no longer has a legitimate

expectation of privacy in the items free of further governmental intrusion."

Cheatam, 150 Wn.2d at 638. It made no difference that an investigation was

being conducted into a different crime than the one the inmate was arrested for

"because one's privacy interest does not change depending on which crime is

under investigation once lawful exposure has already occurred." Cheatam, 150

Wn.2d at 642 (emphasis added).
No. 69663-7-1/5



         The State here argues that blood, like shoes, belongs in the category of

personal effects and police therefore have unlimited authority to subject a lawfully

obtained blood sample to forensic testing for any purpose. The State contends

our Supreme Court adopted that position when it applied Cheatam in State v.

Gregory. 158 Wn.2d 759, 147 P.3d 1201 (2006). We believe the State reads

Gregory too expansively.

         In Gregory, the State drew the defendant's blood in connection with a rape

investigation, pursuant to a court order authorized by CrR 4.7(b)(2)(vi) and

supported by probable cause. By testing the blood sample, the State obtained

Gregory's DNA (deoxyribonucleic acid) profile. Gregory did not challenge the

reasonableness of the test that produced his DNA profile. Gregory, 158 Wn.2d

at 822-23. Later, the State compared the DNA profile to DNA in semen collected

from the scene of a murder. The result of this comparison implicated Gregory in

the murder. He moved to suppress the use of the DNA evidence in the murder

case. He asserted "an ongoing privacy interest in the characteristics of his DNA"

such that the State was obligated to obtain a warrant to compare his DNA profile

with material collected in connection with an unrelated crime. Gregory, 158

Wn.2d at 825-26.


         The court rejected the argument that a warrant was necessary, following

Cheatam and holding that Gregory's DNA profile was comparable to Cheatam's

shoes:


                While unique requirements must be met to support a blood
         draw, Gregory has failed to adequately explain why, after the blood
         draw is complete, a DNA profile that is lawfully in the State's
         possession should be treated differently from other items of a
No. 69663-7-1/6



      defendant's property with regard to subsequent criminal
      investigations. Gregory's blood was drawn for the very purpose of
      conducting DNA analyses and the resulting DNA profile was
      lawfully in the possession of police, regardless of which evidence
      that DNA profile was being compared against, swabs from R.S.'s
      rape kit or samples from the G.H. crime scene. Gregory does not
      point to any court that has concluded that DNA evidence, lawfully in
      the possession of the State for the purposes of one criminal
      investigation, cannot be compared with evidence collected for the
      purposes of an unrelated criminal investigation. We conclude that
      once the suspect's DNA profile is lawfully in the State's possession,
      the State need not obtain an independent warrant to compare that
      profile with new crime scene evidence.

Gregory, 158 Wn.2d at 827 (emphasis added) (footnote omitted).

       What must be noted in the passage quoted above is that the item the

court regarded as comparable to Cheatam's shoes was Gregory's DNA profile-

not his blood. The court held that once the police lawfully obtained Gregory's

DNA profile from his blood sample, they were free to compare that profile to DNA

found during an investigation into a different crime. The court did not hold that

the police were free to go back to the blood sample and test it for other types of

information not contained in the DNA profile.1 Gregory does not answer the

question posed by Martines—whether a forensic test to acquire particular


       1In a footnote to the passage from Gregory quoted above, the court cited
cases from other jurisdictions in support of the conclusion that once a blood
sample has been lawfully procured for the purpose of DNA testing, the police do
not need an independent warrant to compare it to DNA evidence found at the
scene of another crime. Gregory. 158 Wn.2d at 827 n.36, citing People v. King.
232 A.D.2d 111, 663 N.Y.S.2d 610, 614 (1997); Bicklev v. State, 227 Ga. App.
413, 489 S.E.2d 167, 170 (1997); Wilson v. State, 132 Md. App. 510, 752 A.2d
1250, 1272 (2000). Arguably, King goes further and indicates that a blood
sample, lawfully seized for any purpose at all, is no different from lawfully seized
items of tangible property such as a gun or a controlled substance. King. 232
A.D.2d at 117. We are not persuaded by that reasoning, and we do not read
Gregory as going that far.
No. 69663-7-1/7



information from a blood sample is itself a search separate from the drawing of

the sample.

      That question is also unanswered by the next case on which the State

relies, State v. Athan. 160 Wn.2d 354, 158 P.3d 27 (2007). In Athan, the court

held that the defendant abandoned any expectation of privacy he may have had

in his saliva when he unwittingly but voluntarily mailed to detectives an envelope

he had licked. Athan. 160 Wn.2d at 374. Martines did not voluntarily give up his

blood sample or any expectation of privacy he had in its contents.

       In Athan, the court declined to address an argument by amicus curiae

American Civil Liberties Union that "DNA should constitute a privacy interest"

because of its potential to reveal a vast amount of personal information, including

medical conditions and familial relations. Athan. 160 Wn.2d at 368. The court

stated that the concern raised by amicus, "while valid," was not present because

the State had used the saliva sample only for identification purposes, not to

investigate more personal matters. Athan. 160 Wn.2d at 368. Here, the State

suggests that this court can similarly avoid addressing whether there is a privacy

interest in blood because the blood sample was used only to investigate whether

Martines was guilty of driving under the influence, not to test for unrelated

personal information. But in this case, we cannot avoid deciding whether testing

of blood is a separate search distinct from drawing of blood. The issue

determines the outcome. The importance of deciding it is heightened by the fact

that the exigency exception to the Fourth Amendment no longer categorically

applies in drunk driving investigations. Missouri v. McNeelv.      U.S.    , 133 S.
No. 69663-7-1/8



Ct. 1552, 1555, 185 L. Ed. 2d 696 (2013). Warrants for testing the blood of

drunk driving suspects will now become more prevalent. Law enforcement

officers who seek warrants and judges who issue them need guidance as to what

these warrants must authorize.

       If a government action intrudes upon an individual's "reasonable

expectation of privacy," a search occurs under the Fourth Amendment. Katz v.

United States. 389 U.S. 347, 360-61, 88 S. Ct. 507, 19 L. Ed. 576 (1967) (Harlan,

J., concurring). When the government disturbs those privacy interests that

citizens of the state have held, and should be entitled to hold, safe from

governmental trespass absent a warrant, a search occurs under article I, section

7 of the Washington Constitution. State v. Mvrick. 102 Wn.2d 506, 511, 688 P.2d

151 (1984).

       "The overriding function of the Fourth Amendment is to protect personal

privacy and dignity against unwarranted intrusion by the State." Schmerber v.

California. 384 U.S. 757, 767, 86 S. Ct. 1826, 1834, 16 L Ed. 2d 908 (1966). In

the context of determining what limitations the Fourth Amendment imposes upon

intrusions into the human body, limitations on the kinds of property which may be

seized under warrant "are not instructive." Schmerber, 384 U.S. at 768.

Similarly, the examinations that may be made of shoes and other personal

effects are not instructive when determining whether limitations on the testing of

blood are required by the Fourth Amendment or article I, section 7.

       In light of our society's concern for the security of one's person, it has long

been recognized that a compelled intrusion into the body for blood to be


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No. 69663-7-1/9



analyzed for alcohol content is a search. Skinner v. Ry. Labor Exec's. Ass'n, 489

U.S. 602, 616, 109 S. Ct. 1402, 103 L Ed. 2d 639 (1989), citing Schmerber, 384

U.S. at 767-68; State v. Judge. 100 Wn.2d 706, 711, 675 P.2d 219 (1984)

(following Schmerber). "It is obvious that this physical intrusion, penetrating

beneath the skin, infringes an expectation of privacy that society is prepared to

recognize as reasonable." Skinner, 489 U.S. at 616. According to Skinner, the

testing of the blood constitutes a second search. "The ensuing chemical analysis

of the sample to obtain physiological data is a further invasion of the tested

employee's privacy interests." Skinner. 489 U.S. at 616 (emphasis added).

       Following Skinner, this court has held that in the context of government

employment, the collection and testing of urine invades privacy in at least two

distinct ways:

                 The invasion in fact is twofold: first, the taking of the sample,
       which is highly intrusive, and second, the chemical analysis of its
       contents—which may involve still a third invasion, disclosure of
       explanatory medical conditions or treatments.

Robinson v. City of Seattle. 102 Wn. App. 795, 822 n.105, 10 P.3d 452 (2000).

       The State does not discuss Skinner and Robinson. The State contends,

however, that under Schmerber, the right to seize blood from a drunk driving

suspect encompasses the right to conduct a blood-alcohol test at some later

time. For this proposition, the State relies on United States v. Snyder. 852 F.2d

471t 474 (9th Cir. 1988). In Snyder, a drunk driving case, blood was drawn

without a warrant under the exigency exception to the Fourth Amendment. The

defendant argued that police had to seek a warrant for testing after the blood had
No. 69663-7-1/10



been extracted. The court rejected the argument and explained that the seizure

and testing of the blood amounted to "a single event" under Schmerber:

              The flaw in Snyder's argument is his attempt to divide his
      arrest, and the subsequent extraction and testing of his blood, into
      too many separate incidents, each to be given independent
      significance for fourth amendment purposes. He would have us
      hold that his person was seized when he was arrested, his blood
      was seized again upon extraction at the hospital, and finally his
      blood was searched two days later when the blood test was
      conducted. It seems clear, however, that Schmerber viewed the
      seizure and separate search of the blood as a single event for
      fourth amendment purposes.

Snyder. 852 F.2d at 473-74.

      Snyder does not control our analysis in this case. The court did not

consider whether the Fourth Amendment permits a per se rule allowing unlimited

testing upon a lawfully obtained blood sample. The State's argument in this case

demands just such a per se rule. In addition, because the blood was drawn

under the exigency exception to the warrant requirement, the Snyder court did

not consider whether a warrant that expressly authorizes a blood draw should

also expressly authorize and limit the purposes for which testing can be

conducted. Finally, Skinner had not yet been decided and the Snyder court did

not have a precedent indicating that chemical analysis of blood is an independent

invasion of privacy.

       Physical characteristics which are knowingly exposed to the public are not

subject to Fourth Amendment protection. Katz, 389 U.S. at 351; Athan, 160

Wn.2d at 374. Thus, one has no reasonable expectation of privacy in one's

voice, fingerprints, handwriting, or facial characteristics. United States v.

Dionisio, 410 U.S. 1, 14, 93 S. Ct. 764, 771, 35 L Ed. 2d 67 (1973) ("No person

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No. 69663-7-1/11



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.")

       Blood is not like a voice or a face or handwriting or fingerprints or shoes.

The personal information contained in blood is hidden and highly sensitive.

Testing of a blood sample can reveal not only evidence of intoxication, but also

evidence of disease, pregnancy, and genetic family relationships or lack thereof,

conditions that the court in Skinner referred to as "private medical facts."

Skinner, 489 U.S. at 617. Citizens of this state have traditionally held, and

should be entitled to hold, this kind of information safe from governmental

trespass.

       Consistent with Skinner and Robinson, we conclude the testing of blood

intrudes upon a privacy interest that is distinct from the privacy interests in bodily

integrity and personal security that are invaded by a physical penetration of the

skin. It follows that the testing of blood is itself a search, and we so hold.

       Because the testing of blood is a search, a warrant is required. Riley v.

California. No. 13-132, slip op. at 5 (S. Ct. June 25, 2014) (where a search is

undertaken by law enforcement officials to discover evidence of criminal

wrongdoing, reasonableness generally requires the obtaining of a judicial

warrant). There are two distinct constitutional protections served by the warrant

requirement. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022,

2038-39, 29 L. Ed. 2d 564 (1971). First, the magistrate's scrutiny is intended to

eliminate altogether searches not based on probable cause. The second, distinct


                                          11
No. 69663-7-1/12



objective is that those searches deemed necessary "should be as limited as

possible" so as to prevent the "rummaging in a person's belongings" that the

colonists so abhorred. Coolidge. 403 U.S. at 467. The particularity requirement

serves this second objective. A warrant ensures that a search will be "carefully

tailored to its justifications, and will not take on the character of the wide-ranging

exploratory searches the Framers intended to prohibit." Maryland v. Garrison.

480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). A properly

particularized warrant serves the dual function of limiting the executing officer's

discretion and informing the person subject to the search what items the officer

may seize. State v. Riley. 121 Wn.2d 22, 29, 846 P.2d 1365 (1993).

       Where the State has probable cause to suspect driving under the

influence, the requirement to obtain a particularized warrant for blood testing will

prevent the State from rummaging among the various items of information

contained in a blood sample for evidence unrelated to drunk driving. For

example, when a blood sample is obtained in the course of investigating driving

under the influence, the State may not—without further warrant—use the sample

to produce a DNA profile that can be added to government data banks.

       Here the warrant obtained by the trooper could easily have been written to

authorize testing the blood for evidence of alcohol and drug intoxication, but it

contained no such language. As written, the warrant did not authorize testing at

all. It did not limit the trooper's discretion to searching the blood sample only for

evidence of alcohol or drugs. Nor did it serve to inform Martines that the testing




                                          12
No. 69663-7-1/13



would be limited to evidence of alcohol or drug consumption.2 The testing that

occurred in the toxicology lab was a warrantless search.

      We presume that a warrantless search violates both the Fourth

Amendment to the United States Constitution and article 1, section 7 of the

Washington State Constitution. State v. Day. 161 Wn.2d 889, 893, 168 P.3d

1265 (2007). The State can rebut the presumption by showing that an exception

to the warrant requirement applies. Day, 161 Wn.2d 894. The State does not

claim there is an exception to the warrant requirement that would apply in this

case. Because the blood test results were obtained without a warrant, they

should have been suppressed. State v. White, 97 Wn.2d 92, 640 P.2d 1061

(1982).

       Error in admitting evidence obtained through an unconstitutional search is

subject to the constitutional harmless error test of Chapman v. California. 386 U.S.

18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v. Peele. 10 Wn. App. 58, 66,

516 P.2d 788 (1973). review denied, 83Wn.2d 1014(1974). Constitutional error is

presumed to be prejudicial and the State bears the burden of proving that the error


      2An overbroad warrant may be cured where the affidavit and the search
warrant are physically attached and the warrant expressly refers to the affidavit
and incorporates it with "'suitable words of reference.'" Riley, 121 Wn.2d at 29,
quoting Bloom v. State, 283 So.2d 134, 136 (Fl. Dist. Ct. App. 1973). Though the
issue was not briefed, we have considered whether the deficiencies in the
warrant can be cured by recourse to the probable cause affidavit. The affidavit
states that a sample of blood from Martines "may be tested to determine his/her
current blood alcohol level and to detect the presence of any drugs that may
have impaired his/her ability to drive," and the warrant incorporates by reference
the testimonial evidence given to the court. But it is not clear in the record that
the affidavit was physically attached to the warrant. The State has not briefed
the case under Riley and has not asked us to affirm the conviction on that narrow
technical ground.
                                         13
No. 69663-7-1/14



was harmless. State v. Watt. 160 Wn.2d 626, 635, 160 P.3d 640 (2007). The

State does not offer a harmless error analysis. Presenting the test results was a

major focus of the trial, and the prosecutor relied on them in closing. Under the

circumstances, we cannot conclude the admission of the alcohol and drug test

results was harmless.

      The conviction is reversed.




WE CONCUR:




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