Modification: Thompson v. Spitzer

WILLIAM THOMPSON et al.,

Plaintiffs and Appellants,

v.

TODD SPITZER et al.,

Defendants and Respondents.

No. G060988

(Super. Ct. No. 30-2021-01184633)

California Court of Appeal

Fourth Appellate District

Division Three

Filed May 5, 2023

ORDER MODIFYING OPINION

AND DENYING PETITION

FOR REHEARING; NO CHANGE

IN JUDGMENT

This court hereby orders that the opinion filed here on April 11, 2023, be modified as follows:

1. On page 16, last paragraph, delete last sentence and Isbell citation, and add the following citation after the Petrillo citation: "Bearman v. Superior Court (2004) 117 Cal.App.4th 463, 473 [waiver of the right to privacy is "narrowly construed and not lightly found"]"

2. On page 18, delete last paragraph, beginning with "When evaluating . . ." and replace with the following paragraph: "Based on the above allegations, we cannot find at this stage in the proceedings that alleged misdemeanants are providing knowing and voluntary waivers. In particular, plaintiffs' allegations that alleged misdemeanants are unaware of the purposes for which Bode may use their DNA and that Bode may indefinitely keep their DNA raise additional concerns about the voluntariness of their waivers. A DNA sample contains a trove of personal information. As Justice Cuéllar explained in his dissent in Buza, "DNA samples contain a wealth of genetic information, which would make an individual nervous about possible violations of his or her privacy as long as the information remains in the state's possession." (Buza, supra, 4 Cal.5th at p. 719 (dis. opn. of Cuéllar, J.).) "That one's DNA reveals much of a person's most private, closely guarded information is difficult to dispute." (Id. at p. 720.) A DNA sample can reveal "an arrestee's entire genetic code---information that has the capacity to reveal the individual's race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, predisposition to certain traits, and even the propensity to engage in violent or criminal behavior." (Ibid.) A "DNA profile . . . thus has the potential to reveal vast amounts of personal information about those individuals, and to be used in ways starkly different relative to what justified the scheme. [Citation.] One can scarcely imagine personal information that falls more closely to the core of the 'realm of guaranteed privacy'. . . ." (Ibid.)"

3. On page 19, delete first complete paragraph, and replace with the following paragraphs: "Due to its complexity, a significant number of alleged misdemeanants will likely be unaware of the information their DNA may reveal and how that information may be exploited. And, as technology advances, DNA samples and profiles will reveal far more extensive information than we currently know. (U.S. v. Kriesel (9th Cir. 2007) 508 F.3d 941, 947-948; U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813, 842, fn. 3 (conc. opn. of Gould, J.).) Because of this gap in knowledge, a vaguely worded DNA waiver can potentially conceal from alleged misdemeanants the persons having access to their DNA and/or the different purposes for which their DNA might be used. Here, based on the allegations and the contents of the waiver, alleged misdemeanants are not sufficiently apprised of the ways their DNA may be exploited for information now and in the future. Alleged misdemeanants are not informed that their DNA samples will be sent to a third party. Nor are they told how the third party will store their DNA information, how long it will retain their DNA information, or whether the third party can disseminate their DNA to other third parties.

"County Defendants argue our Supreme Court has "rejected these heightened privacy concerns specific to the collection of DNA," that we quoted above from Justice Cuéllar's dissent. (Citing Buza, supra, 4 Cal.5th at pp. 689-690.) We disagree. In Buza, the Supreme Court recognized that DNA collection involves heightened privacy interests. It stated, "[w]e . . . are mindful of the heightened privacy interests in the sensitive information that can be extracted from a person's DNA" which "implicate . . . the privacy rights enjoyed by all Californians under the explicit protection of article I, section 1 of the California Constitution." (Ibid.) However, the Supreme Court found the intrusion to these privacy interests was not unreasonable given the DNA Act's safeguards. (Ibid.) This case involves different issues than Buza. Buza analyzed whether mandatory DNA collection of arrested felons under the DNA Act was an unreasonable search and seizure. (Id. at pp. 664-665, 691.) In contrast, this case involves voluntary DNA collection from alleged misdemeanants. Our analysis does not focus on the reasonableness of the OCDA's conduct but on whether alleged misdemeanants are given sufficient information to knowingly and voluntarily waive their DNA rights. Within this context, alleged misdemeanants' knowledge of the third parties having access to their DNA and the purposes for which such persons could use their DNA is a relevant concern."

4. On page 19, delete last paragraph, beginning with "For a DNA waiver . . ." and replace with the following paragraph: "As set forth above, based on the allegations in the FAC, we find alleged misdemeanants were not given sufficient information as to how their DNA would be maintained and used. At this point in the proceeding, we need not set forth the exact requirements for the waiver. On remand, the trial court must weigh the facts and competing interests to determine whether the waivers are valid and, if not, how they are lacking."

5. beginning with "Based on the allegations . . . ."

6. On page 21, delete last paragraph, beginning with "As to the first element . . ." and replace with the following paragraph: "As to the first element, alleged misdemeanants have a privacy interest in their DNA and genetic information. (Buza, supra, 4 Cal.5th at pp. 689-690; Mason, supra, 209 Cal.App.4th at p. 381.) The second and third elements are also met. Based on the allegations in the FAC, alleged misdemeanants have a reasonable expectation that their DNA sample will not be provided to third parties to be indefinitely held for unknown purposes. As to the third element, the allegations that alleged misdemeanants' DNA can be held indefinitely by a third party for unknown uses without their informed consent is sufficient to state an invasion of privacy claim. (See ibid.)"

This modification does not change the judgment. The petition for rehearing is DENIED.

MOORE, ACTING P. J.

WE CONCUR:

GOETHALS, J.

MOTOIKE, J.