State high court narrowly upholds DNA collection for felony arrests

The state Supreme Court on Monday reversed a convicted arsonist's challenge to California's DNA collection requirements in felony arrests but left the door open for defendants in different circumstances to raise privacy objections to the voter-approved DNA Act.

The high court's 4-3 decision in People v. Buza, 2018 DJDAR 3029 (April 2, 2018), was written by Justice Leondra Kruger, an appointee of Gov. Jerry Brown.

She joined the court's Republican appointees, Chief Justice Tani G. Cantil-Sakauye and Justices Ming Chin and Carol Corrigan.

The decision left intact California law, based on the 2004 voter-backed Proposition 69, that requires collection of DNA samples from felony arrestees as part of standard booking procedures, along with mug shots and fingerprinting.

Kruger's opinion added that the case raised a number of concerns about DNA collection in other cases involving arrestees in different situations, such as arrests without probable cause.

She wrote that the appellant in Buza "also raises concerns that changes in technology might open up new prospects for using his DNA samples and profiles in ways that are uniquely invasive of personal privacy. We recognize that the DNA Act may raise additional constitutional questions that will require resolution in other cases."

The DNA Act requires law enforcement officers to collect DNA samples from all felony arrestees "immediately following arrest."

That timing was the subject in separate dissents written by Justices Mariano-Florentino Cuéllar and Goodwin Liu.

The majority overturned an appellate court victory by appellant Mark Buza. He had challenged his misdemeanor conviction for refusing to submit to a DNA cheek swab after a felony arrest for arson, for which he was eventually convicted.

The majority reversed an appellate court ruling that found requiring Buza to submit to DNA collection was a violation of his Fourth Amendment rights.

Liu wrote in his dissent that one in five California arrestees is released without being charged, and one in three is not convicted of a crime. Buza had not yet been charged or convicted at the time he was required to provide a DNA sample, Liu wrote.

"This point is critical, because it brings into focus the startling breadth of DNA collection and retention," Liu wrote. "This is not a scheme carefully calibrated to identify felony offenders. Instead, it can be fairly described as a biological dragnet."

Buza was arrested in 2009 for setting fire to a police car with a road flare and a bottle of gasoline. Buza later testified he had in fact set the car's tires on fire as an act of protest.

But at trial, Buza pleaded not guilty to the felonies of arson, possession of incendiary device and vandalism, and also pled not guilty to the misdemeanor of refusing to provide a DNA sample upon his arrest.

A jury convicted him of all four counts, but his misdemeanor conviction was overturned on appeal, and reinstated by Monday's decision.

Deputy Solicitor General Michael Mongan, who argued before the Supreme Court, referred a request for comment to an Attorney General's Office spokesperson, who said the opinion is being reviewed. Echoing the concerns raised in Liu's dissent, defense counsel J. Bradley O'Connell, assistant director of the First District Appellate Project, who argued before the state Supreme Court, said the fact that Buza was ultimately convicted shouldn't have diminished his rights when he was a presumptively innocent arrestee.

O'Connell also said that, if arrestees are not charged or are found innocent, they must petition to have their DNA expunged from a database.

"The big deal is that DNA reveals a great deal more highly sensitive information about your genetic makeup, which can include susceptibility to disease, ancestry, as compared to fingerprints," O'Connell said.

O'Connell said he was not surprised, given the controversial nature of the issue, that the court's decision was a narrow one. "I fully expected the vote to be 4-3," he said. "Justice Kruger asked difficult questions of both sides, so it was not clear from the argument what position she would ultimately take."

Victim's rights activist Jayann Sepich of the DNA Saves organization, which filed an amicus brief in the case, said she was "jubilant" about the court's decision. "Our daughter was raped and murdered, and her attacker's blood and skin were under her fingernails, and a DNA profile was extracted from that blood and skin," Sepich explained.

But when she asked a detective if police could take DNA from arrestees, "the detective said no, it's illegal. I couldn't believe it. We've been working so hard for so long and to see this incredible, wonderful result, we were excited to learn the California system will continue."

The California District Attorney's Association, which submitted an amicus brief in the case, did not respond to a request for comment.