California High Court OKs DNA Test of Arson Suspect

SAN FRANCISCO (CN) – Refusing to give an opinion on the constitutionality of a voter-passed law authorizing police to collect DNA from arrestees, the California Supreme Court on Tuesday reinstated an arsonist’s misdemeanor conviction for refusing to supply authorities with his DNA after his arrest.

“Under the circumstances before us, we conclude the requirement is valid under both the federal and state constitutions, and we express no view on the constitutionality of the DNA Act as it applies to other classes of arrestees. We accordingly reverse the judgment of the court of appeal in this case,” wrote Justice Leondra Kruger for the 4-3 majority, which found the DNA sample requirement “not unreasonable.”

The case stems from the conviction of Mark Buza in 2009 for torching a San Francisco police car.

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 convicted of certain felony offenses like homicide, assault, kidnapping or sex crimes. This is typically done through a swab of the inside of the mouth to collect the inner cheek cells. The person’s DNA profile is then stored in California’s DNA databank.

In 2004, voters passed Proposition 69, expanding the scope of the DNA Act to arrestees.

Buza refused to give a sample, 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.

A jury later convicted him, but an appellate court in 2011 reversed Buza’s misdemeanor conviction 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.”

In King, the high court found Maryland’s cheek swab requirement amounts to a search, but a reasonable one under the Fourth Amendment.

That 5-4 decision spurred the California Supreme Court to send Buza’s case back to the appeals court for reconsideration. And in 2014, the same appellate panel that handled Buza’s case in 2011 again overturned his conviction for refusing to provide a DNA sample.

The California high court’s ruling Monday largely relied on the findings by the U.S. Supreme Court in King, rejecting Buza’s attempts to contrast California’s law with Maryland’s.

“In short, although the DNA Act differs in some ways from the Maryland law at issue in King, none of those differences affects the Fourth Amendment analysis in the specific case before us. King holds that a cheek swab is a reasonable booking procedure for individuals who are arrested for serious offenses, and defendant was asked to provide a cheek swab upon being booked after a valid arrest for a serious offense. Defendant’s conviction for failing to submit a sample of his DNA therefore did not violate the Fourth Amendment to the federal Constitution,” Kruger wrote.

But the justices acknowledged the validity of the DNA Act as applied in Buza’s case may not apply to others, noting that another group of arrestees are currently challenging the law in federal court on behalf of those who were never charged with a crime. They are led by Elizabeth Haskell, who was arrested in 2009 at a peace rally for allegedly obstructing law enforcement.

“We of course take no view on the merits of any such challenges,” Kruger wrote. “We only note them for purposes of contrast with this case, in which defendant bases his challenge to his misdemeanor refusal conviction on the potential for constitutional deprivation under circumstances that are not, in fact, present here.”

Kruger was joined by Chief Justice Tani Cantil-Sakauye and Justices Ming Chin, and Carol Corrigan. They drew sharp opposition from Justices Goodwin Liu and Mariano-Florentino Cuéllar, who each wrote their own dissenting opinions.

Liu said the DNA collection did not pass constitutional muster since Buza was required to provide it prior to any judicial determination of whether his arrest was valid. Liu also wrote he believes deferring to the U.S. Supreme Court on the matter was a misstep.

Quoting the U.S. Constitution, Liu wrote. “It is of course true that the United States Supreme Court serves as a backstop against state infringements on constitutional rights, and when the high court issues a federal constitutional ruling, state courts ‘shall be bound thereby, any yhing in the Constitution or laws of any state to the contrary notwithstanding.’ But that is not a reason for state courts to treat the floor of constitutional rights under federal law as a presumptive ceiling on constitutional rights under state law.”

He added, “In sum, we should not indulge any suggestion that the job of protecting individual rights in our federal system belongs primarily to the United States Supreme Court or that the high court is invariably better positioned than state supreme courts to discharge that critical function.”

Cuéllar also voiced strong objections to the DNA Act’s expansion to arrestees, saying the government’s interest in safety does not outweigh a person’s interest in privacy.

“Our state Constitution provides heightened protections for the privacy rights of individuals, including arrestees. Those protections do not vanish merely because someone is arrested. An arrest itself requires probable cause – but such cause, however probable, is a far cry from a conviction,” he wrote.

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