WA: Court order for DNA swab not shown to have been issued with PC; suppressed

The state did not show that a court order for DNA swabbing, a search, was issued with probable cause, and the probable cause for arrest is not necessarily probable cause to believe that evidence will be found in a search. The DNA swab was suppressed. State v. Garcia-Salado, 240 P.3d 13 (Wash. 2010):

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.

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.