California Courts of Appeal,
Constitutional Law,
Criminal
Aug. 6, 2011
DNA collection upon arrest unconstitutional, panel rules
A California law that requires police to collect a DNA sample from anyone arrested for a felony is unconstitutional, a state appellate court ruled Thursday.
Daily Journal Staff Writer
A California law that requires police to collect a DNA sample from anyone arrested for a felony is unconstitutional, a state appellate court ruled Thursday.
Weighing in on an issue being debated by state and federal courts across the country, the 1st District Court of Appeal said that drawing DNA samples from people who are presumed to be innocent constitutes an unreasonable search and seizure under the Fourth Amendment.
Proposition 69, the 2004 ballot measure allowing for the collection, has greatly expanded the statewide DNA databank used to link suspects with unsolved crimes.
"What the DNA Act authorizes is the warrantless and suspicionless search of individuals, before a judicial determination of probable cause to believe they have committed a crime, for evidence of crime unrelated to that for which they have been arrested," Justice J. Anthony Kline wrote for the unanimous three-judge panel. People v. Buza, 2011 DJDAR 11741. "The United States Supreme Court has never permitted suspicionless searches aimed at uncovering evidence of crime outside the context of convicted offenders."
Most courts have upheld similar DNA collection laws, although some jurisdictions only gather DNA after a judge has determined there was probable cause for an arrest.
Thursday's decision represents the first published opinion finding California's practice unconstitutional, but it will likely not be the last word on the issue. Instead, it starts a race between the state courts and the 9th U.S. Circuit Court of Appeals, which is considering a separate federal challenge to the law's constitutionality brought by the American Civil Liberties Union. Haskell v. Brown, 10-15152.
Attorney General Kamala Harris declined to comment on the ruling or whether her office would pursue an appeal.
A New Mexico woman whose daughter's 2003 murder spurred her to lobby for the California law and similar laws passed by Congress and 25 other states, said she believes the U.S. Supreme Court will ultimately uphold what she says is a life-saving practice.
"We kind of see this as an anomaly and believe it will be reversed," said Jayann Sepich, founder of DNA Saves.
Just last week, the 3rd U.S. Circuit Court of Appeals upheld the constitutionality of the federal government's DNA collection law in United States v. Mitchell, 09-4718. That law is also under review by an en banc panel of the 9th Circuit in United States v. Pool, 2011 DJDAR 8051.
Courts that have upheld DNA collection programs have compared the practice to fingerprinting, finding it no more intrusive.
But Kline wrote that fingerprints are used as identifying markers and that that's much different than the purpose of California's DNA databank: to crack unsolved crimes.
"In fact, the ease with which some courts move from fingerprinting to DNA testing to embrace the undeniable law enforcement advantages of the newer technology raises a substantial red flag," he said.
Kline also pointed out that California holds on to DNA samples of exonerated arrestees unless the person goes through a difficult process to expunge the information.
"Without questioning the integrity of most law enforcement officers, it is not difficult to think that the DNA Act might provide an incentive to pretextually arrest a person from whom the police desire a DNA sample," he said.
Thursday's ruling does not overturn the law but reverses Mark Buza's misdemeanor conviction for refusing to submit a sample when San Francisco Police arrested him on suspicion of setting fire to an empty patrol car in 2009.
Kathryn Seligman of the First District Appellate Project, who represented Buza in the appeal, said she was very pleased with the ruling.
"It's a validation for Fourth Amendment rights and a recognition this is a significant intrusion when you take someone's DNA for investigation purposes," she said. "We're taking these age-old concepts and applying them to these new technologies." href="mailto:
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Laura Ernden
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