State v. Rose, Court of Appeals Division II, filed August 26, 2008.
Ms. Rose was arraigned on drug charges relating to a marijuana grow operation. Ms. Rose’s only criminal history was a conviction for driving with a suspended license from 1989. She had no history of failing to appear for court and she had a stable address and employment. The Court released Ms. Rose on her own personal recognizance, but imposed “standard drug conditions” such as weekly UA’s, no possession or use of non-prescribed drugs, no consumption of alcohol, and no entering locations where alcohol is the principal item for sale.
Ms. Wilson was charged with unlawfully possessing firearms. Ms. Wilson’s prior criminal history included a bail forfeiture for recreational fishing and a kidnapping conviction. There was also no proof that Ms. Wilson had a history of failing to appear for court. The court had no evidence before it that Ms. Wilson was herself a drug user, but ordered weekly UA’s as part of the conditions for Ms. Wilson’s pretrial release.
Mr. Wentz was charged with possession of a controlled substance and unlawful possession of firearms. Mr. Wentz’s criminal history consisted of misdemeanors and theft charges, but nothing since 2001. At the arraignment, the Court ordered weekly UA’s over his defense attorney’s objections. At a later omnibus hearing, the Court learned that Mr. Wentz had a positive UA for drugs and revoked his previously posted bail. Mr. Wentz was remanded into custody.
The UA condition required the defendants to provide weekly samples to the Mason County Probation Department and to pay for the UA testing. Ms. Rose, Ms. Wilson, and Mr. Wentz appealed their conditions of pretrial release to the Court of Appeals.
The Court of Appeals reviewed CrR 3.2 regarding pretrial release conditions and a recent case, Butler v. Kato, 137 Wn. App. 515, 154 P.3d 259 (2007), prohibiting courts from ordering pretrial DUI defendants to attend AA/NA meeting and to submit to evaluations for chemical dependency.
The Court of Appeals held that trial courts do have the authority to set pretrial conditions when there is evidence that a person will not appear for court or will commit a violent offense or intimidate witnesses under CrR 3.2. The Court of Appeals also held that UAs, i.e., the collection and analyses of biological samples, specifically urine, constitutes a search for Fourth Amendment purposes. Article I, section 7 of the Washington State Constitution provides greater protection to individual property rights than the Fourth Amendment.
The Court of Appeals held that the State failed to prove that drug use was a good indicator that the defendants would fail to appear or make an individualized determination that the defendant’s drug use, if any, would lead to nonappearance. Even though the trial court made a finding that Mr. Wentz presented a danger to the community, it was not tied to failing to appear. The State failed to establish a special needs exception to the warrantless, suspicionless searches.
The Court of Appeals held that without a showing that drug use leads to a higher likelihood of absconding or an individual determination that a defendant’s drug use increases the likelihood of him or her failing to appear, then no exception to the warrant requirement exists to order UA’s.
