Garcia-Salgado (GS from here on out, as that’s a lot to type) decided it was kosher to pull down an 11 year old’s pants and move up and down on her. Her parent’s disagreed on this point. A police officer sided with the parents. The court, after his arrest, ordered GS’s DNA be taken under Criminal Rule 4.7(b)(2)(vi).
Unfortunately, CrR 4.7 is subject to constitutional requirements. This means you have to have a warrant, and you have to have the additional prerequisites for an invasion to the person. Here, the State didn’t even meet the PC requirement:
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.
