9th Circuit allows DNA testing of arrestees

By John Roemer

Daily Journal Staff Writer

California law enforcement officers can collect DNA samples from adult felony arrestees who have not been convicted of a crime, a sharply divided 9th U.S. Circuit Court of Appeals panel held Thursday.

The 2-1 decision upheld a ruling by U.S. District Judge Charles R. Breyer of San Francisco and found that the practice does not violate the Fourth Amendment's ban on unreasonable searches and seizures. Haskell v. Harris, 2012 DJDAR 2462.

It was the circuit's latest word on the hotly contested use of DNA in the criminal law arena, this time affirming a 2004 voter initiative, Proposition 69, that makes arrestee testing mandatory.

Lead plaintiff Elizabeth Haskell was arrested at a peace demonstration in San Francisco in 2009 and was told she would be charged with a misdemeanor if she refused to give a DNA sample. She did so and was never charged with any crime. The opinion quoted Haskell as saying she now lives with the fear that her DNA might be falsely matched to a sample found at a crime scene.

She added: "I also recognize the taking of DNA from those arrested during political activities as an intimidation tactic, increasing the cost of voicing any freedom of expression."

Circuit Judge Milan D. Smith Jr., writing for James Dale Todd, a senior circuit judge from Tennessee, sitting by designation, called DNA analysis "an extraordinarily effective tool" that lets police identify arrestees, solve past crimes and exonerate innocent suspects.

Attorney General Kamala D. Harris said in a statement: "Today's decision by the 9th Circuit is a victory for public safety in California. The collection of DNA from adult felony arrestees has assisted law enforcement in solving thousands of crimes, including some of the most heinous. I will continue to vigorously defend this law in state court."

In 1998, the state Legislature enacted the DNA Act, which required DNA testing only of those convicted of certain offenses. Since then, law enforcement officials have identified more than 10,000 offenders using DNA, Smith wrote in the opinion.

In 2004, voters expanded the practice by requiring peace officers to collect DNA samples, using a so-called buccal swab of the arrestee's mouth, whenever they conclude there is probable cause to believe the individual committed a felony.

Smith and Todd held that the tests were minimally intrusive and "that the government's compelling interests far outweigh arrestees' privacy concerns."

Dissenting, Circuit Judge William A. Fletcher pointed out that the circuit has already held that the warrantless taking of a DNA sample, without suspicion of a crime that the sample might help solve, violated the Fourth Amendment. Friedman v. Boucher, 580 F.3 rd 847 (2009).

He accused the panel majority of wrongly ignoring that precedent and said that even if Friedman were not on the books he would still find Prop. 69 unconstitutional.

Fletcher rejected claims relating DNA testing to fingerprints because family members have different fingerprints but similar DNAs, potentially allowing "familial searching," in which officials look for partial matches between material at crime scenes and DNA profiles in police databases. That possibility raises further privacy concerns, he wrote.

One authority on DNA use in criminal law predicted that Fletcher's dissent will persuade the full court to vote for en banc review. Rachel D. Barbour, a research attorney at the Sacramento federal defender's office who helped draft a friend of the court brief in Haskell, called the testing of arrestees "counter to society's commitment to the presumption of innocence."

Barbour represented the defendant in a case that led to a 2010 circuit ruling that OK'd the use of DNA testing of pretrial felony defendants under federal law. That decision drew a passionate dissent by Circuit Judge Mary M. Schroeder - much like Fletcher's in Haskell - and was slated for en banc review.

However, en banc review of the federal laws mandating DNA testing of arrestees was forestalled last year when the defendant involved in the case pleaded guilty to child pornography charges, mooting the issue. U.S. v. Pool, 659 F.3rd 761.

Conservative judges appointed by Republican presidents wrote the Haskell and Pool majority decisions. The dissenters were both Democratic appointees.

Another attack on the California statute is currently being briefed at the state Supreme Court. People v. Buza, S196200. And a 3rd Circuit en banc decision last year in favor of the federal law mandating testing is the subject of a petition for review by the U.S. Supreme Court. U.S. v. Mitchell, 11-7603.

Barbour said the high court's January decision in U.S. v. Jones, 10-1259, holding warrantless GPS tracking unconstitutional, gives insight into how the justices might view warrantless DNA testing. "It's a good analogy," she said. "They wrote a powerful statement against government intrusion."

ACLU attorney Michael T. Risher, who argued the case on Haskell's behalf, said his office is considering whether to seek en banc review or to petition the U.S. Supreme Court directly for a ruling.

"People are getting swabbed every day," he said. "We're not sure we want to wait another year for an en banc decision while the government ploughs full speed ahead with sampling. It's troubling that they won't wait for a constitutionality determination."

john_roemer@dailyjournal.com