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Nason v. State (12/03/2004) ap-1962
Nason v. State (12/03/2004) ap-1962
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MARK D. NASON, )
) Court of Appeals No.
A-8673
Appellant, )
Trial Court No. 3SW-02-330 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1962 December 3, 2004]
)
Appeal from the District Court, Third Judi
cial District, Seward, George P. Peck,
Magistrate.
Appearances: John P. Morrison, Assistant
Public Defender, Kenai, and Barbara K. Brink,
Public Defender, Anchorage, for the
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Mark D. Nason was convicted of first-degree assault, AS
11.41.200(a), and he is currently serving a prison sentence at
the Spring Creek Correctional Center. Because Nasons offense is
a felony crime against a person under AS 11.41, Nason was asked
to submit to a cheek swabbing procedure that would preserve a
sample of his DNA for inclusion in Alaskas DNA database. Under
AS 44.41.035(b), the Department of Public Safety is directed to
collect ... a blood sample, oral sample, or both, from ... a
person convicted of a crime against a person ... under AS 11 for
inclusion in the states DNA registration system.
Citing privacy concerns, Nason refused to provide a DNA
sample. Based on this refusal, Nason was convicted of violating
AS 11.56.760(a)(2), which makes it a crime for any person who has
been convicted of an offense listed in AS 44.41.035(b) to refuse
to provide the statutorily mandated DNA sample at the request of
a correctional officer or police officer.
In this appeal, Nason attacks Alaskas DNA collection
statute by which we mean the combination of AS 44.41.035(b)
(specifying the persons whose DNA is to be collected) and AS
11.56.760(a) (making it a crime to fail to comply with an
authorized request for DNA). Nason contends that the DNA
collection statute unlawfully infringes his Fourth Amendment
right to be free from unreasonable searches. He also argues that
the statute infringes the right to privacy implicitly guaranteed
by the United States Constitution1 and explicitly guaranteed by
Article I, Section 22 of the Alaska Constitution. Finally, Nason
argues that AS 44.41.035(b) violates Alaskas constitutional
guarantee of equal protection under the law2 because it only
requires DNA samples from people convicted of some felonies
(felonies that qualify as crimes against a person), while people
convicted of other serious crimes are not required to provide a
DNA sample.
For the reasons explained here, we conclude that Nason
has failed to rebut the presumptive constitutionality of the DNA
collection statute. We therefore uphold the statute in Nasons
case, but we do so without reaching the merits of potential
Fourth Amendment and right of privacy attacks that might be
brought against the statute.
We further hold that, assuming the constitutionality of
the DNA collection statute, the Alaska Legislature did not
violate the equal protection clause when it decided to require
collection of DNA samples from defendants convicted of a felony
crime against a person under AS 11.41, as opposed to other
felonies.
We note that, since the time Nason was prosecuted, the
legislature has amended AS 44.41.035(b) to require collection of
DNA samples from all persons convicted of any felony under our
criminal code (Title 11), as well as any misdemeanor crime
against a person (i.e., any misdemeanor defined in AS 11.41), or
any felony defined in AS 28.35 (i.e., felony driving under the
influence, felony breath-test refusal, and felony hit-and-run),
or any misdemeanor offense for which sex offender registration is
required. See SLA 2003, ch. 88, 5. We express no opinion on
the constitutionality of this broader DNA collection.
Nasons Fourth Amendment and right of privacy attacks on
the DNA collection statute
For the most part, Nasons constitutional
attacks on the DNA collection statute consist of
conclusory assertions (1) that he has a fundamental
right of privacy in his DNA, (2) that the State has no
overriding governmental interest in collecting his DNA,
and (3) that collection of his DNA is an unreasonable,
suspicionless search.
Nason cites only one case on point: United
States v. Kincade (I), 345 F.3d 1095 (9th Cir. 2003),
in which a panel of the Ninth Circuit (by a 2 to 1
vote) declared that a federal statute requiring the
collection of DNA samples from parolees constituted an
unreasonable search in violation of the Fourth
Amendment. However, the two-judge majority in Kincade
(I) conceded that all of the existing case law
comprising some two dozen federal and state decisions
was contrary to their position.3 Indeed, an earlier
panel of the Ninth Circuit had upheld Oregons DNA
collection law against similar constitutional attacks:
Rise v. Oregon, 59 F.3d 1556, 1559-1562 (9th Cir.
1995).
Nasons briefs to this Court do not discuss
(or even mention) any of this contrary case law.
Moreover, in the months since Nason submitted his
briefs, the Ninth Circuit (sitting en banc) reversed
the Kincade panel decision and upheld the constitu
tionality of the federal DNA collection law: United
States v. Kincade (II), 379 F.3d 813 (9th Cir. 2004).
This second Kincade decision lists three
dozen federal and state decisions upholding the federal
DNA collection law and similar state laws against
constitutional challenge.4 There is essentially no
authority to the contrary.5 (The Ninth Circuit stated
that it could find only two decisions, both of them
issued by single judges, in which DNA collection
statutes were struck down.6 One of these was a federal
district court decision from California, now superseded
by the en banc decision in Kincade. The other was a
trial court decision from Maryland which has now been
reversed by the Maryland Court of Appeals: see State
v. Raines, 857 A.2d 19 (Md. 2004).)
An appellate court must begin with the
presumption that a statute is constitutional.7 To
succeed in challenging the DNA collection statute,
Nason must rebut this presumption of constitutionality.
Nason has cited only one court decision in his favor,
and that decision has been reversed. Moreover, Nason
fails to mention or address the fact that dozens of
federal and state court decisions from across the
country are virtually unanimous in upholding DNA
collection statutes against the types of Fourth
Amendment and privacy challenges that Nason presents
here.
(We acknowledge that, in his reply brief,
Nason presents four pages of substantive authority for
his positions (1) that DNA collection is a greater
intrusion than fingerprinting, and (2) that DNA
collection potentially violates the Fourth Amendment
because it might be viewed as a suspicionless special
needs search, and because it might be viewed as
motivated solely by law enforcement purposes. However,
Nason still cites no cases directly on point, and he
still fails to acknowledge that appellate courts from
around the country have rejected these same arguments.
More importantly, Nason fails to address the reasoning
of those courts or explain why he believes that this
reasoning is mistaken.)
Given this briefing, we conclude that Nason
has failed to rebut the presumptive constitutionality
of Alaskas DNA collection statute.8 We therefore
uphold the statute in this case. At the same time,
however, we refrain from addressing the merits of the
potential constitutional attacks that might be brought
against the statute with the exception of Nasons equal
protection attack, which we discuss in the next section
of this opinion. And because we do not address the
merits of the potential attacks on the DNA collection
statute, we need not decide the potential
justifications for the DNA collection authorized by
that statute.
Readers may wonder why we refrain from
deciding these issues when, as explained above,
appellate courts in this country are virtually
unanimous in upholding statutes like ours. The problem
is that, although courts have unanimously upheld DNA
collection statutes, the courts are divided concerning
the precise constitutional basis for DNA collection.
Some judges view DNA as simply another form of prisoner
identification, similar to the photographing and
fingerprinting procedures that are routinely conducted
on all prisoners, even before conviction. Other judges
view DNA collection as a warrantless search that is
nevertheless a reasonable exception to the warrant
requirement under a totality of circumstances analysis.
And still other judges uphold DNA collection under the
special needs doctrine, despite the obvious usefulness
of DNA identification for law enforcement purposes.
Moreover, even though courts unanimously
uphold these statutes, the votes within each court are
far from unanimous. For example, the en banc decision
in Kincade (II) was decided by a 6 to 5 vote. The six
judges who voted to uphold the DNA collection statute
could not agree on a constitutional rationale for doing
so,9 and the five judges who thought the statute was
unconstitutional wrote three separate dissents (two of
them vehement).10 Similarly, the Maryland Court of
Appeals decision in State v. Raines was decided by a
4 to 3 vote. Again, the four judges who voted to
uphold the Maryland statute could not agree on a
constitutional rationale for doing so,11 and Chief
Judge Bell (joined by two other members of the court)
wrote a lengthy, closely reasoned dissent.12
To put the matter plainly, DNA collection
statutes present very difficult legal issues. Not only
is there substantial disagreement concerning the
constitutionality of DNA collection, but even the
judges who uphold DNA collection disagree concerning
the constitutional justification for this practice.
This is no small problem, because each different
rationale for upholding DNA collection leads down a
separate constitutional path in the future litigation
of related Fourth Amendment and privacy issues. And,
as pointed out by the dissents in Kincade (II) and
Raines, each rationale for DNA collection holds the
potential for government abuses and infringement of
citizen privacy.
In the absence of meaningful adversarial
briefing, we believe it is better to leave these
important issues undecided. We therefore simply hold
that, with regard to the Fourth Amendment and privacy
challenges raised in this case, Nason has failed to
rebut the presumption that the DNA collection statute
is constitutional.
Nasons equal protection attack on the DNA collection
statute
In addition to the Fourth Amendment and
privacy arguments discussed in the previous section of
this opinion, Nason also argues that Alaskas DNA
collection statute denies him equal protection of the
law because the statute requires DNA samples only from
people convicted of felonies that qualify as crimes
against a person under former AS 44.41.035(j)(1) i.e.,
all felonies defined in AS 11.41, with the exception of
second-degree custodial interference (AS 11.41.320),
and with the addition of first-degree arson
(AS 11.46.400). Nason argues that it is fundamentally
unfair to require DNA samples from these convicted
felons while at the same time not requiring DNA samples
from people convicted of equally serious felonies
defined in other sections of the criminal code.
As we noted earlier, the legislature has
amended the DNA collection statute since the time that
Nason was charged with refusal to provide a DNA sample.
In its current form, AS 44.41.035(b) requires DNA
samples from all people convicted of any felony defined
in the criminal code (Title 11), plus all people
convicted of any misdemeanor offense defined in AS
11.41 (see AS 44.41.035(n)(2)), plus all people
convicted of any felony defined in AS 28.35, plus all
people convicted of a misdemeanor for which sex
offender registration is required. Thus, the current
version of the statute is not susceptible to the equal
protection attack that Nason presents in this appeal.
Nevertheless, we must address Nasons attack on the
earlier version of the statute, since this is the
version that led to his prosecution and conviction.
We conclude that the earlier version of the
statute did not violate the equal protection clause
because the legislature had a valid reason for singling
out people convicted of felonies against a person.
Generally speaking, these felonies are the ones most
likely to yield DNA evidence that can be used to
identify the perpetrator because, in most of the
felonies defined in AS 11.41, the perpetrator will be
present at the scene of the crime and will touch the
victim or touch a weapon or other instrument used for
assaultive purposes. Moreover, the legislature could
reasonably conclude that people willing to commit these
types of assaultive crimes are more likely to do so in
the future.
For these reasons, assuming that DNA
collection from convicted prisoners is constitutional,
we conclude that the legislature did not violate the
equal protection clause when, in the former version of
the statute, it limited DNA collection to people
convicted of felonies against a person.
Conclusion
The judgement of the district court is
AFFIRMED.
_______________________________
1 See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965).
2 Alaska Constitution, Article I, Section 1.
3 Id. at 1109-1110 & nn. 27-29.
4 Kincade (II), 379 F.3d at 830-31.
5 See Robin Cheryl Miller, Annotation: Validity,
Construction, and Operation of State DNA Database Statutes,
76 A.L.R.5th 239 (2000).
6 Kincade (II), 379 F.3d at 831 n. 25.
7 Kodiak Island Borough v. Mahoney, 71 P.3d 896, 899-900
(Alaska 2003).
8 See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (finding
that the appellant waived several points on appeal because
the appellants arguments on these points were cursory and
undeveloped and were not supported by substantive
discussions of pertinent legal authority); Garcia v. State,
947 P.2d 1363, 1364 n. 1 (Alaska App. 1997) (finding that
the appellants failed to preserve a point on appeal because
they presented a ... conclusory argument that fail[ed] to
address [pertinent] legal authorities).
9 The five-judge plurality opinion, written by Judge
OScannlain, concluded that DNA collection was justifiable
under a totality of circumstances approach, 379 F.3d at 832,
but the decisive sixth vote was cast by Judge Gould, who
believed that DNA collection was a permissible special needs
search, id. at 840.
10See the dissents of Judge Reinhardt, 379 F.3d at 842-871,
Judge Kozinski, id. at 871-75, and Judge Hawkins, id. at 875-
76.
11The lead opinion written by Judge Cathell (joined by only
one other member of the court) concluded that DNA collection
was constitutional because, even though its primary purpose
[is] to identify individuals involved in crime, the people
being sampled incarcerated persons have a severely
diminished expectation of privacy. See 857 A.2d at 33.
Judge Rakers concurring opinion concluded that the DNA
collection statute was constitutional on the narrow grounds
that DNA sampling is an acceptable means of identifying
prisoners. See id. at 44. And Judge Wilners separate
concurring opinion concluded that the statute was
constitutional because convicted criminals, as a group,
constitute a special potential threat to public safety in
that they tend to be recidivists, and because many, if not
most, people in prison are not there for their first offense
but rather have committed [other] crimes, often unsolved
ones, before [they committed] the crime for which they are
[now] incarcerated. See id. at 49.
12See 857 A.2d at 50-64.
