After a defendant has been arrested in some cases a court may order the defendant to abstain from particular activities during the pre-trial period or may order the defendant to do certain things in order to avoid having to await trial in jail. In October 2017, the Washington Supreme Court handed down its opinion in a case where three defendants had challenged one of their pre-trial release conditions. Each defendant had objected to a requirement that they must submit to a certain number of monthly urinalysis tests as a condition of their release. Each defendant subsequently appealed this decision and the case wound its way up to the state's Supreme Court.
The defendants made a number of arguments on appeal, one of which was whether or not the trial court had erred “in failing to find that the pretrial release conditions were unconstitutional under state and federal law.” The court looked at “whether the petitioners' urinalysis testing requirements violate either article I, section 7 of the Washington Constitution or the Fourth Amendment to the United States Constitution.” In addition, the court examined “whether [the] Washington Constitution article I, section 7 is more protective than –and should be interpreted separately from –the Fourth Amendment in this context.”
The court stated that, in general, the Washington Constitution provides greater protections for its citizens than the Fourth Amendment. However, the court found that “[w]e have not determined if Washington's Constitution provides broader protection in the specific context of bodily functions and pretrial release conditions.” After analyzing a number of factors the court determined that a separate analysis of this issue under the state Constitution was required. The court found that “court-ordered urinalysis testing constitutes an acute privacy invasion by the State” and that neither party suggested “a constitutional statute or court rule [that] provides authority of law sufficient under article I, section 7 to require periodic urinalysis as a condition of pretrial release.”
The court stated that “the parties seem to agree that petitioners' urinalysis testing conditions constitute warrantless searches not subject to a recognized exception to the warrant requirement.” The court was urged by the State to adopt an exception called the federal special needs exception. Under this exception to the warrant requirement, an “otherwise unlawful” search is permitted “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'” The court declined to adopt this exception, stating that “[t]he petitioners' suffered no diminution in their privacy sufficient to justify highly invasive urinalysis testing under article I, section 7.” The court stated that those who have yet to be convicted of a crime have greater privacy rights than those who are in custody or those who have been found guilty.
On this issue, the Supreme Court thus held that “the superior court erred in failing to grant the petitioners' applications for statutory writs and in failing to find that the pretrial urinalysis testing violated article I, section 7 of the Washington Constitution. ” The court then reversed the decision the of the lower court and remanded the case for further proceedings.
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