State constitutional analysis, a love letter

Why do I love the Court of Appeal's recent opinion in People v. Buza, 2014 DJDAR 15991 (Dec. 3, 2014)? Let me count the ways. But first the setting.

Buza's case was before the 1st District, Divisison 2, for the second time. At issue was the constitutionality of a California statute (colloquially, the "DNA Act") which, as amended by an initiative measure, requires that a DNA sample be taken from all adults arrested for or charged with any felony offense "immediately following arrest, or during the booking ... process or as soon as administratively practicable after arrest" for inclusion in the state's DNA database. Buza, who had been arrested and was being detained in county jail for vandalism and arson, declined to allow a swab of his mouth that would have provided a DNA sample and was convicted (among other charges) for failing to do so.

The first time around, the Court of Appeal reversed that conviction on the basis that the seizure of Buza's DNA as a consequence of arrest, and prior to any judicial determination of probable cause, violated his rights under the Fourth Amendment to be free of unreasonable search or seizure. Shortly thereafter, while the case was pending in the California Supreme Court, the U.S. Supreme Court in Maryland v. King, 133 S. Ct. 1958 (2013), by a vote of 5-4, rejected a Fourth Amendment challenge to a similar (though not identical) Maryland statute, whereupon the California Supreme Court remanded Buza to the Court of Appeal for reconsideration in light of the federal ruling.

On remand, the appellate court had several options. If it thought that King was controlling, it could have simply reversed its prior ruling. Or, if it thought King was distinguishable, it could have adhered to its prior ruling. There were ample grounds for doing so. As Presiding Justice Anthony Kline's opinion observed, unlike the California statute, the Maryland statute permitted a DNA sample to be processed only after a judicial finding of probable cause that the defendant is guilty of the underlying crime; it applied only to a subset of serious felonies; it expressly prohibited "familial DNA searches," in which the defendant's DNA is used to implicate a close biological relative; and it provided for automatic expungement of DNA data if the arrestee is not convicted - all of which led the court to conclude that it was "difficult to view King as controlling the outcome of the present case."

But (oh joy!) eschewing both of those alternatives, the court chose a third course: It concluded that the California statute violated Article I, Section 13 of the state Constitution (banning unreasonable searches or seizures), making it unnecessary to reach the federal constitutional issue. Kline's opinion of over 60 pages explores both the legal and factual contexts with great care and considerable detail, examining the impact of the statute on the privacy interests of persons presumed to be innocent of any crime as well as the lack of overriding justification, and it is impossible in this brief review to do it justice. On the way to its conclusion, however, the opinion accepts, and supports, a number of propositions critical to independent state constitutional analysis in this context, but often under-appreciated in the opinions of courts:

1. While Article I, Section 28(d) of the state Constitution, which was added by Proposition 8, the so-called "Victims Bill of Rights," has the effect of precluding state courts from excluding evidence in the search and seizure context unless exclusion is required by the federal Constitution, nothing in that proposition alters the "substantive scope" of California's constitutional provision, so that "what would have been an unlawful search or seizure in this state before the passage of [Proposition 8] would be unlawful today, and this is so even if it would pass muster under the federal Constitution," In re Lance W., 37 Cal. 3d 873 (1985). Since "the question here is not whether an illegal search and seizure requires suppression of evidence at trial but whether the state can criminalize the refusal to comply with a search that would violate the state's proscription against unreasonable searches," the Buza court held, "[w]e are free to determine this issue on the basis of California precedent."

2. While the language of Article 1, Section 13 is "all but identical" to the Fourth Amendment, the state Supreme Court has held, in keeping with its general insistence that the state Constitution is a "document of independent force," and that Article 1, Section 13 imposes "a more exacting standard," especially with regard to searches of arrestees (e.g., People v. Brisendine, 1 Cal. 3d 528 (1975)).

3. While the state Supreme Court has at times indicated (for reasons yet to be explained) a general policy of deference to the U.S. Supreme Court in the interpretation of textually parallel provisions in the state and federal charters, it has suggested by implication that such deference is not required where the language or history of the state provision points to a different resolution, or where the federal decision overrules past precedent or limits previously established rights, under the federal Constitution, or where the federal decision is less than unanimous, or has inspired extensive criticism, or where the federal decision, if followed by California courts, would overturn established California doctrine affording greater rights in the particular area (e.g., People v. Teresinski, 30 Cal. 3d 822 (1982)). These factors, the Buza court held, "all militate against King's analysis in the present case."

4. While the protection for "privacy" in Article 1, Section 1 of the state Constitution does not independently provide greater protection than Article 1, Section 13 in the search and seizure context, it is relevant to considering what California society would consider a legitimate expectation of privacy, and therefore "must be considered in balancing the governmental interest and private expectation of privacy regarding DNA testing." After careful examination of both sides of the balance, the court concludes that the statute's intrusion upon the expectation of privacy of individuals is not justified by any asserted governmental interest.

State constitutional analysis sometimes gets short shrift. Without implying any criticism of the court, it needs to be observed that Buza's case might have been decided on state constitutional grounds in the first place. In that regard, California would do well to adopt the Oregon rule that requires lawyers and the court to consider state constitutional issues before reaching the federal Constitution in all cases where the state constitution might be dispositive. See Sterling v. Cupp, 290 Or. 611, 613-14 (1981). Be that as it may, the Buza opinion provides an important and much needed restatement of the jurisprudential independence of rights under the state Constitution. One hopes that the Supreme Court will agree.