Appeals Court Rips Calif. DNA-Collection Law

     SAN FRANCISCO (CN) – For the second time in three years, a state appeals court in San Francisco found that a voter-approved mandate authorizing police to collect DNA from arrestees is unconstitutional.
     The 3-0 ruling by a panel of the First Appellate District stems from the arson conviction of Mark Buza, whom a jury found had torched a San Francisco police car in what the man called an act of political protest.
     But long before that – in the hours after Buza’s arrest but before his arraignment – police demanded that he provide a DNA sample under the DNA and Forensic Identification Database and Data Bank Act, approved by voters in 1998. The law requires law enforcement agencies to collect DNA from all adults arrested for felonies upon arrest or during the booking process, and arrestees who refuse get a misdemeanor added to their charges.
     Buza refused, eventually lobbying the trial court to drop the misdemeanor charge by arguing that his arson arrest did not constitutionally justify the taking of a biological sample. The court responded by ordering Buza to give a sample by his sentencing date and – upon learning that the man had continued to refuse – authorized correctional officers to use “reasonable force” to get the man’s DNA.
     In 2011, the San Francisco appeals court reversed Buza’s misdemeanor count for refusing to give a sample. The state took the reversal to the California Supreme Court, which held the case while the U.S. Supreme Court decided Maryland v. King – a Fourth Amendment challenge to Maryland’s law requiring the collection of DNA from arrestees charged with “serious crimes.”
     The nation’s high court has long upheld state and federal statutes authorizing the collection of DNA after a conviction. But in King, the justices for the first time extended that authorization to arrestees – finding DNA samples “critical” to the identification and background of suspects and the Fourth Amendment intrusion of a cheek swab minimal, since the samples were only tested for identity and not genetic traits.
     That 5-4 decision spurred the California Supreme Court to send Buza’s case back to the appeals court for reconsideration. And on Wednesday, the same appeals court panel that handled Buza’s case in 2011 overturned his conviction for refusing to provide a DNA sample again.
     In a 60-page opinion, the panel said that key differences in Maryland law makes the Supreme Court’s holding in King “thoroughly inapplicable to the California DNA Act.” The biggest difference is that Maryland requires a court to make a probable cause determination – and an arraignment – before a DNA sample is taken from an arrestee, while California law commands collection as soon as possible after arrest.
     “This means that the arrestee’s DNA may be processed on the basis of an arresting officer’s designation of the alleged crime, even if he or she is never charged with a qualifying – or indeed any – crime, and despite the fact that, because of the length of time necessary for processing a DNA sample, the DNA information will not be available for any of the purposes discussed in King before the arrestee is either released or arraigned,” Presiding Judge J. Anthony Kline wrote for the three-judge panel. “For individuals who are formally charged with a qualifying offense, the information will rarely be available materially sooner as a result of collection immediately upon arrest than it would be if collected upon arraignment. Yet the privacy expectations of a prearraignment arrestee are higher than those of an individual who has been subjected to a judicial determination of probable cause, and permitting DNA collection on the basis of an arresting officer’s determination of the crime increases the potential for abuse. King considered none of these issues.”
     Also, Maryland automatically removes arrestees who aren’t convicted from the database, while California puts the burden of expungement on the individual – and removal is not guaranteed even in the absence of a conviction, Kline said.
     Maryland’s law also prohibits using the DNA samples to conduct familial searches. But California can theoretically use the samples to conduct fishing expeditions to implicate a close biological relative for other crimes, and although the state currently limits this practice to convicted offenders only, nothing in the DNA Act requires that restriction, the panel said.
     “In our view, the differences between the California and Maryland DNA laws significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment,” Kline wrote.
     But rather than upending the U.S. Supreme Court’s holding in King, the panel focused on the DNA Act’s constitutionality under the California Constitution. And although the state constitution’s provisions for search and seizure largely mirror the Fourth Amendment, it imposes a “more exacting standard” for permissible searches of arrestees, the appeals court said.
     “Like the four dissenting justices in King, we are unwilling to accept the premises that analysis of arrestees’ DNA is intended or in fact used for identification rather than investigation, or that ‘identification’ encompasses investigating criminal history,” Kline wrote. “The King majority’s construction of a new governmental interest in ‘identity’ that includes not only verification of who an arrestee is but also what that person has done in the past allowed the court to elevate the ‘governmental interest’ side of the balance in weighing the law’s promotion of ‘legitimate governmental interests’ against its intrusion on arrestee’s reasonable expectation of privacy. Because this definition of ‘identity’ folds investigation into identity verification, and because DNA testing at the time of arrest does not further actual identity verification, the court’s analysis distorted the ‘totality of the circumstances’ required to be examined in measuring the reasonableness of the search at issue.”
     And while the King court justified the expansion of warrantless searches with the need for identification, California’s DNA collection law doesn’t even fit that bill, the court said.
     “The California DNA Act cannot reasonably be characterized as aimed at identification of the donor of a DNA sample,” Kline wrote. “DNA taken at the time of arrest is not intended to be used, and cannot usefully be employed, to verify the arrestee’s identity; it is intended to be used and is in fact employed to investigate the arrestees’ possible involvement in criminal conduct unrelated to the crime of arrest and to add to the DNA database for purposes of future crime-solving.”
     He added: “Analysis of DNA collected from arrestees does not serve the asserted governmental purpose – identification – and the apparent actual purpose for taking DNA samples at this early stage – investigation – cannot be squared with established constitutional principles protecting against suspicionless searches.”
     Additionally, the voter-approved act “intrudes too quickly and too deeply” into the privacy rights of arrestees to square with the heightened protections afforded by the California Constitution, the panel said, noting that the U.S. Constitution does not offer privacy protection.
     “DNA samples contain an enormous amount of personal information – the entire human genome,” Kline wrote. “DNA testing is neither necessary nor practical for the only non-investigative purpose advanced to justify it – verifying the identity of arrestees. Moreover, DNA ostensibly gathered for the purpose of identification is misused to serve another purpose, criminal investigation. Considering also that the DNA Act permits the indefinite retention of this material – even that of arrestees who are never charged or never convicted of any offense – the collection and indefinite storage of DNA samples is the epitome of the kind of stockpiling of personal and private information the privacy initiative meant to protect from unnecessary governmental intrusion.”
     The appeals court did not issue an order immediately barring law enforcement from collecting DNA, presumably leaving task that for the California Supreme Court when the state takes the case there again.
     Earlier this year – and inspired by the Supreme Court’s decision in King – the full 9th Circuit ruled that California’s DNA collection law passes constitutional muster.
     That challenge stemmed from a federal class action brought by a woman who was arrested at a peace rally in 2009 for obstructing law enforcement, and was also forced to give a DNA sample at the time of her arrest.

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