Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 83156-4
Title of Case: State v. Garcia-Salgado
File Date: 10/07/2010
Oral Argument Date: 06/24/2010


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
06-1-12255-7
Honorable Richard A Jones


JUSTICES
--------
Barbara A. Madsen Signed Majority Result only
Charles W. Johnson Signed Majority
Gerry L. Alexander Signed Majority
Richard B. Sanders Signed Majority
Tom Chambers Signed Majority
Susan Owens Signed Majority
Mary E. Fairhurst Majority Author
James M. Johnson Signed Majority
Debra L. Stephens Signed Majority


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


James Morrissey Whisman
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2362






IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 83156-4
)
v. )
) EN BANC
ALEJANDRO GARCIA-SALGADO, )
)
Petitioner. ) Filed October 7, 2010
___________________________________ )

FAIRHURST, J. -- Alejandro Garcia-Salgado challenges his conviction for

first degree rape of a child. He argues the State violated the Fourth Amendment to

the United States Constitution and article I, section 7 of the state constitution when

it procured his deoxyribonucleic acid (DNA) by cheek swab pursuant to a court

order. Specifically, Garcia-Salgado asserts that the seizure was unlawful because it

was made without a warrant and without probable cause based on oath or

affirmation. The State contends there is sufficient evidence in the record to support

State v. Garcia-Salgado, No. 83156-4

a finding of probable cause and the order met the requirements of the Fourth

Amendment and article I, section 7 because it was entered by a court pursuant to

CrR 4.7(b)(2)(vi) after a contested hearing.

I. FACTUAL AND PROCEDURAL HISTORY

In November 2006, Garcia-Salgado was visiting his friend Pablo Cruz-

Guzman at the home of Cruz-Guzman's mother-in-law, Joylene Simmons. Also in

the home were Simmons' children, including 11 year old P.H. Cruz-Guzman and

Garcia-Salgado spent the evening drinking beer in the garage. At some point,

Garcia-Salgado asked Cruz-Guzman to drive him home. Cruz-Guzman wanted to

go to the store first, and told Garcia-Salgado to go sleep in the living room. Garcia-

Salgado went inside to the living room while Cruz-Guzman and some others went to

the store to get more beer.

While Cruz-Guzman and the others were away, Garcia-Salgado entered the

room in which P.H. was sleeping. According to P.H., Garcia-Salgado climbed into

her bed, removed her pajama pants, laid on top of her "going up and down," and

that she felt the part of his body "between his legs" against her "private spot."

Report of Proceedings (RP) (Sept. 25, 2007) at 60-62. Afraid, P.H. remained silent

throughout the ordeal. After Garcia-Salgado left the room, P.H. told others in the

house what had happened. Word quickly reached P.H.'s mother, who called the

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State v. Garcia-Salgado, No. 83156-4

police.

Auburn Police Officer Theodus Millan responded to the call. He arrived at

the house in time to see Cruz-Guzman and the others return from the store. While

waiting for another officer to arrive, Millan observed Garcia-Salgado attempting to

escape through the garage window. However, Cruz-Guzman and another family

member apprehended and restrained Garcia-Salgado until Millan could arrest him.

At the Auburn jail, an inventory search of Garcia-Salgado revealed that he had

cocaine in his wallet. P.H. was taken to the hospital where a rape kit was used

during an examination of P.H.
After waiving his Miranda1 rights, Garcia-Salgado stated through an

interpreter that he "woke up" in P.H.'s bed and had kissed P.H. He denied that he

was undressed or that he had sex with P.H.
Garcia-Salgado was charged with first degree rape of a child.2 After Garcia-

Salgado was charged, but prior to trial, the State sought a sample of Garcia-

Salgado's DNA pursuant to CrR 4.7(b)(2)(vi). At the CrR 4.7 hearing, Garcia-

Salgado objected to giving a sample of his DNA on privacy grounds and argued that

because the doctor who treated P.H. found no indication of penetration, the DNA

request was nothing more than a "fishing expedition." RP (Mar. 27, 2007) at 3.

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2Garcia-Salgado was also charged with, and pleaded guilty of, possession of cocaine.
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State v. Garcia-Salgado, No. 83156-4

The court inquired into whether DNA other than the victim's had been discovered in

the rape kit. Counsel for the State responded, "Your Honor, the way it works is:

the lab does a presumptive test, and then, based on the results of the presumptive

test, determines whether or not it's appropriate to take the next step, the most

expensive step, of doing a DNA test." Id. at 4-5. She continued, "I believe the

presumptive tests were done, and there was something on them; I couldn't say

exactly what at this point in time."3 Id. at 5.

Pursuant to CrR 4.7(b)(2)(vi), the trial court ordered Garcia-Salgado to

submit to cheek swabs. The one page order reads:

The above-entitled Court, having heard a motion regarding taking of
DNA sample of defendant.

IT IS HEREBY ORDERED that a DNA sample of defendant's DNA
shall be taken by oral swab (DNA swab is minimally intrusive, [and]
under [CrR] 4.7(b)(2)(vi) it shall be taken) [and] defendant must
cooperate.

Clerk's Papers at 6.

The Washington State Patrol Crime Laboratory tested P.H.'s clothing and

found evidence of semen on her shirt and underwear. Specifically, spermatozoa

were discovered on the shirt, and a protein found only in seminal fluid was found on

the underwear. DNA from the sperm and seminal fluid matched the DNA profile

3Both sides agree that this statement is incorrect because at the time of the hearing, the
rape kit had not yet been tested.
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State v. Garcia-Salgado, No. 83156-4

generated from Garcia-Salgado's cheek swab. A jury found Garcia-Salgado guilty

of first degree rape of a child, and the trial court sentenced him to 110 months of

confinement. Garcia-Salgado appealed his conviction, arguing that the taking of his

DNA constituted a warrantless search in violation of the Fourth Amendment and

article I, section 7. The Court of Appeals affirmed in a published opinion,

concluding that there was sufficient evidence in the record to establish probable

cause to search and that CrR 4.7(b)(2)(vi) provided the "authority of law" required

by article I, section 7 of the state constitution. State v. Garcia-Salgado, 149 Wn.

App. 702, 706-07, 205 P.3d 914 (2009). The Court of Appeals relied on the

prosecuting attorney's statement that genetic material had been discovered in the

rape kit. Id. at 705-06. We granted Garcia-Salgado's petition for review on

September 9, 2009. State v. Garcia-Salgado, 166 Wn.2d 1033, 217 P.3d 782

(2009). In a letter dated December 16, 2009, the State informed Garcia-Salgado

that testing of the rape kit did not occur until after Garcia-Salgado's DNA had been

taken.

II. ISSUE

Did the State violate the Fourth Amendment or article I, section 7 when it

procured a sample of Garcia-Salgado's DNA pursuant to a court order?

III. ANALYSIS

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State v. Garcia-Salgado, No. 83156-4

By court rule, a trial court may order a criminal defendant to permit the State

to take samples from the defendant's body. CrR 4.7(b)(2)(vi). However, the

court's power is explicitly "subject to constitutional limitations." CrR 4.7(b)(2).

Garcia-Salgado asserts that the cheek swab in this case violated the Fourth

Amendment and article I, section 7 because the court's order that he submit to the

cheek swab was made without probable cause and without a warrant.

"Generally, a trial court's decisions regarding discovery under CrR 4.7 will

not be disturbed absent manifest abuse of discretion." State v. Gregory, 158 Wn.2d

759, 822, 147 P.3d 1201 (2006) (citing State v. Yates, 111 Wn.2d 793, 797, 765

P.2d 291 (1988)). However, "while the determination of historical facts relevant to

the establishment of probable cause is subject to the abuse of discretion standard,

the legal determination of whether qualifying information as a whole amounts to

probable cause is subject to de novo review." Id. (citing In re Det. of Petersen, 145

Wn.2d 789, 799-801, 42 P.3d 952 (2002)).

The Fourth Amendment provides that "[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated." Similarly, article I, section 7 provides that "[n]o

person shall be disturbed in his private affairs, or his home invaded, without

authority of law." While the protections guaranteed by the Fourth Amendment and

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State v. Garcia-Salgado, No. 83156-4

article I, section 7 are qualitatively different, the provisions protect similar interests.

State v. Eisfeldt, 163 Wn.2d 628, 634, 185 P.3d 580 (2008). In some cases, article

I, section 7 may provide greater protection than the Fourth Amendment; however,

article I, section 7 "necessarily encompasses those legitimate expectations of

privacy protected by the Fourth Amendment." State v. Parker, 139 Wn.2d 486, 493-

94, 987 P.2d 73 (1999).

Generally, warrantless searches are per se unreasonable under both the Fourth

Amendment and article I, section 7. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d

1266 (2009) (citing State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002)).

There are limited exceptions to the warrant requirement, and the State bears the

burden of establishing that one of these narrowly drawn exceptions applies. Id. at

249-50.

Swabbing a cheek to procure a DNA sample constitutes a search under the

Fourth Amendment and article I, section 7. The United States Supreme Court has

recognized "that a 'compelled intrusio[n] into the body for blood to be analyzed for

alcohol content'" is a search. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S.

602, 616, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (alteration in original) (quoting

Schmerber v. California, 384 U.S. 757, 768, 86 S. Ct. 1826, 16 L. Ed. 2d 908

(1966)). Similarly, the Court found Breathalyzer tests to "implicate[] similar

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State v. Garcia-Salgado, No. 83156-4

concerns about bodily integrity" and constitute searches as well. Id. at 617. We

find that the swabbing of a person's cheek for the purposes of collecting DNA

evidence is a similar intrusion into the body and constitutes a search for the

purposes of the Fourth Amendment and article I, section 7.

Because a cheek swab to procure a DNA sample is a search, the search must

be supported by a warrant unless the search meets one of the "'jealously and

carefully drawn'" exceptions to the warrant requirement. State v. Winterstein, 167

Wn.2d 620, 628, 220 P.3d 1226 (2009) (internal quotations omitted) (quoting State

v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996)); Schmerber, 384 U.S. at

770 ("Search warrants are ordinarily required for searches of dwellings, and absent

an emergency, no less could be required where intrusions into the human body are

concerned."). A warrant may issue only where (1) a neutral and detached

magistrate (2) makes a determination of probable cause based on oath or affirmation

and (3) the warrant particularly describes the place to be searched and the items to

be seized. State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004) (citing U.S.

Const. amend. IV).

In the context of searches that intrude into the body, the United States

Supreme Court has held that the "interests in human dignity and privacy which the

Fourth Amendment protects" require three showings in addition to a warrant.

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State v. Garcia-Salgado, No. 83156-4

Schmerber, 384 U.S. at 769-70. First, there must be a "clear indication" that the

desired evidence will be found if the search is performed. Id. at 770. Second, the

method of searching must be reasonable. Id. at 771. Third, the search must be

performed in a reasonable manner. Id. at 772.

The State argues that the search in this case need not satisfy the warrant

requirement; instead, the State asserts the search should be upheld after merely

establishing that there was probable cause and that the three Schmerber

requirements were met. For this proposition, the State relies primarily on State v.

Judge, 100 Wn.2d 706, 675 P.2d 219 (1984), and State v. Curran, 116 Wn.2d 174,

804 P.2d 558 (1991), abrogated on other grounds by State v. Berlin, 133 Wn.2d

541, 947 P.2d 700 (1997). Judge and Curran both involved blood draws from

suspects in alcohol related traffic fatalities. Judge, 100 Wn.2d at 708; Curran, 116

Wn.2d at 177. In holding that a warrant was not required, the Judge court relied on

the fact that it was impracticable to seek a warrant for a blood draw where the

defendant's body was constantly eliminating the evidence of alcohol in his blood.

100 Wn.2d at 712 (citing Schmerber, 384 U.S. at 770-71). The Curran court relied

on Judge for the conclusion that a warrant was not required and, impliedly, adopted

the Judge court's reasoning. Curran, 116 Wn.2d at 184 (citing Judge, 100 Wn.2d

at 711-12). Unlike alcohol, DNA is not eliminated from the body over time.

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State v. Garcia-Salgado, No. 83156-4

Consequently, it is not impracticable to seek a warrant for a search of DNA.

Therefore, the warrant exception available in Judge and Curran is not available

here.

While a cheek swab for DNA is a search and requires a warrant absent the

existence of an exception, the warrant requirement of the Fourth Amendment and

article I, section 7 may be satisfied by a court order. Normally, a warrant in

Washington State is issued under CrR 2.3, but neither the state constitution nor

federal constitution limits warrants to only those issued under CrR 2.3. A court

order may function as a warrant as long as it meets constitutional requirements.

E.g., United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (9th Cir. 1983). In the

case of a search that intrudes into the body, such an order must meet both the

requirements of a warrant and the additional requirements announced in Schmerber.

Therefore, to support a search that intrudes into the body, a CrR 4.7(b)(2)(vi) order

must be entered by a neutral and detached magistrate, must describe the place to be

searched and items to be seized, must be supported by probable cause based on oath

or affirmation, and there must be a clear indication that the desired evidence will be

found, the method of intrusion must be reasonable, and the intrusion must be

performed in a reasonable manner.

In Gregory, we upheld a search that intruded into the body made pursuant to

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State v. Garcia-Salgado, No. 83156-4

a CrR 4.7 order. Gregory was convicted of three counts of first degree rape and, in

a separate trial, one count of aggravated first degree murder. Gregory, 158 Wn.2d

at 777. Prior to his conviction on the rape charges, the trial court ordered Gregory

to permit the State to take blood samples for the purpose of comparing Gregory's

DNA with the DNA evidence discovered in a rape kit examination of the victim.4

Id. at 820. On appeal, Gregory challenged the collection of his DNA. Id. at 821-

22.

We upheld the search as valid because the order met the requirements of a

search warrant. First, a sworn declaration provided sufficient evidence to establish

probable cause to search. Id. Second, there was no question that the judge who

entered the order was a neutral and detached magistrate. Finally, an order for the

seizure of blood for DNA sampling necessarily describes the place to be searched

and the item to be seized. Id. at 820. The blood draw also met the Schmerber

requirements for searches that intrude into the body. First, Gregory did not

challenge the reasonableness of the blood draw or the manner in which it was

performed. Id. at 822-23. Second, the evidence established a clear indication that

Gregory's DNA would match the DNA recovered in the rape kit. See id. at 822-

825. Because the order met the requirements of a valid warrant, and the bodily

4In Gregory, there were two separate blood draws. Id. at 820. For the purpose of this
analysis, the relevant blood draw was the one in January 2000.
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State v. Garcia-Salgado, No. 83156-4

intrusion met the additional requirements of Schmerber, the search was

constitutional.

To satisfy constitutional requirements, the order in this case must meet the

same requirements as the order in Gregory. Here, the order was entered by a

neutral and detached magistrate, and it sufficiently described the place to be

searched and item to be seized. Additionally, Garcia-Salgado has not argued that

the oral swab was an unreasonable method of procuring his DNA or that the swab

was performed unreasonably. Therefore, the only remaining questions are whether

there was probable cause to search supported by oath or affirmation and whether

there was a clear indication that the desired evidence would be found. As we find

the probable cause determination dispositive, we do not address whether the record

clearly indicates that Garcia-Salgado's DNA would match any DNA recovered from

the rape.

"When adjudging the validity of a search warrant, we consider only the

information that was brought to the attention of the issuing judge or magistrate at the

time the warrant was requested." State v. Murray, 110 Wn.2d 706, 709-10, 757

P.2d 487 (1988) (citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560,

565 n. 8, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971)). Unfortunately, the record in this

case does not establish what evidence was presented to the trial court before the

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State v. Garcia-Salgado, No. 83156-4

court issued the CrR 4.7(b)(2)(vi) order. We know that the trial judge heard

assertions from the deputy prosecuting attorney at both the March 23 and 27, 2007,

hearings. However, not only were some of those assertions incorrect, none of the

statements were made under oath. Therefore, the deputy prosecutor's assertions

cannot support the court's determination of probable cause.

Other than the deputy prosecutor's assertions, it is unclear what information

was brought to the attention of the trial court. The State urges us to consider the

certification of probable cause in support of Garcia-Salgado's arrest, but the record

does not establish that the trial judge ever read the certification. Ideally, the CrR

4.7(b)(2)(vi) order itself would reference the evidence relied upon for the probable

cause determination, but the order is silent, and nothing in the transcript of the

record reveals what information was before the trial court when it entered the CrR

4.7(b)(2)(vi) order. Because we do not know what the trial court considered, we

cannot say that probable cause supported the order. Accordingly, we cannot find

that the warrant requirement has been satisfied. It is the State's burden to establish

that an exception to the warrant requirement has been met. Garvin, 166 Wn.2d at

250. The State has not established an exception in this case. Therefore, we reverse

the Court of Appeals and remand.

IV. CONCLUSION

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State v. Garcia-Salgado, No. 83156-4

A cheek swab for DNA is a search that intrudes into the body. A search that

intrudes into the body may be made pursuant to an order entered under CrR

4.7(b)(2)(vi) if the order is supported by probable case based on oath or affirmation,

is entered by a neutral and detached magistrate, describes the place to be searched

and the thing to be seized, and if there is a clear indication that the desired evidence

will be found, the test is reasonable, and the test is performed in a reasonable

manner. Here, it is unclear from the record what evidence, if any, was before the

trial court when it determined probable cause. Consequently, this court cannot say

that there was probable cause to search Garcia-Salgado's DNA. We reverse the

Court of Appeals and remand.

AUTHOR:
Justice Mary E. Fairhurst

WE CONCUR:
Chief Justice Barbara A. Madsen, Justice Susan Owens
result only
Justice Charles W. Johnson

Justice Gerry L. Alexander Justice James M. Johnson

Justice Richard B. Sanders Justice Debra L. Stephens

Justice Tom Chambers

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