9th Circuit Won’t Block DNA-Collection Statute

     SAN FRANCISCO (CN) – There is no constitutional problem with a California law that lets police collect a DNA sample from any adult who is arrested for a felony, the 9th Circuit ruled Thursday.
     “We agree that the California DNA Act would be unconstitutional if it allowed police officers to collect DNA samples from random citizens on the street without any probable cause to believe that they committed a crime,” Judge Milan D. Smith Jr. wrote for the majority. “In reality, however, the police cannot collect DNA without first determining that there is probable cause that the individual committed a felony.”
     A class of sampling subjects sued the state in 2009, claiming the collection of DNA samples constituted an illegal seizure of their genetic information and violated their due process rights. Lead plaintiff Elizabeth Haskell was arrested in March 2009 at a peace rally. She claims police told her she would be charged with a separate misdemeanor when she refused to let authorities swab the inside of her cheek, the typical method officers use to collect DNA.
     Representing Haskell, the American Civil Liberties Union claimed the swab method constituted an unconstitutional search.
     After certifying a proposed class, U.S. District Judge Charles Breyer refused to enter an injunction in 2009. The federal appeals court affirmed Thursday, noting that “even critics of mandatory DNA sampling concede that a felony arrestee has a significantly diminished expectation of privacy.”
     Buccal swabs are also far less invasive than the blood tests of the past, the 32-page decision states. “Moreover, California law enforcement officers typically allow arrestees to perform the buccal swab collection on themselves, further minimizing the physical privacy intrusion,” Smith wrote.
     The ACLU failed to persuade the court that California’s DNA database is intrusive.
     “Although plaintiffs use the phrase ‘DNA profile’ to evoke images of an oppressive ‘Big Brother’ cataloging our most intimate traits, the reality is far less troubling,” Smith wrote. “A DNA profile contains only thirteen ‘junk DNA’ markers that are not linked to any genetic or physical trait. They are used only to identify the individual.”
     In a 27-page dissent, Judge William Fletcher said DNA swabs are as intrusive as the taking of fingerprints.
     “The Supreme Court has twice held that fingerprints may not be taken unless there is consent, a warrant, or probable cause,” Fletcher wrote. “I would apply to DNA the law that we already apply to fingerprints.”
     “We have never allowed the compulsory taking of DNA samples from mere arrestees,” he added. “We should not begin now.”
     The majority rejected Fletcher’s comparison.
     “We agree with the dissent’s concession that ‘fingerprints and DNA are similar,’ ” Smith countered. “The dissent’s key argument collapses, however, because he completely ignores the fact that the California DNA Act clearly requires that law enforcement officers may only compel DNA collection upon a finding of probable cause that the individual has committed a felony.”
     “The other fatal flaw in the dissent’s novel construction of the Fourth Amendment is his entirely unsupported assumption that the information derived from compelled fingerprinting and DNA collection may only be used in connection with the crime for which probable cause was found,” he added. “The dissent cites absolutely no authority for this unprecedented and misguided reading of the Fourth Amendment. Were he correct, our entire criminal justice system would be upended because law enforcement officers would be prevented from using basic investigative tools.”

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