Judge Poised to Advance Suit Over California DNA Collection

SAN FRANCISCO (CN) – Despite prior court rulings that police can collect DNA samples from people arrested but not convicted of crimes, a state court judge hinted Wednesday that holding onto that DNA data might violate the California Constitution.

“What about the person who is arrested mistakenly,” San Francisco Superior Court Judge Ethan Schulman asked in court Wednesday. “That person’s sample then remains in the system forever, right? Regardless of the fact that there’s no criminal conviction.”

Schulman was responding to a state lawyer’s argument that California’s need to identify criminals outweighs the privacy interests of those arrested but not convicted of felonies.

The lawsuit is the latest challenge to DNA collection laws by privacy advocates after a series of recent legal setbacks. In 2013, the Supreme Court ruled in Maryland v. King that a state law requiring DNA collection for arrestees charged with “serious crimes” did not violate the Fourth Amendment. One year later, an en banc Ninth Circuit panel held that California’s DNA collection law does not violate the U.S. constitutional right to be free from unreasonable searches and seizures.

This latest challenge, brought by the Center for Genetics and Society, Equal Justice Society and Santa Cruz County resident Pete Shanks, claims that California’s voter-backed DNA collection law violates the state’s stricter constitutional privacy protections.

Approved by voters in 2004, Proposition 69 expanded a 1998 state law by requiring police to collect DNA samples from all adults arrested for or charged with a felony.

Arguing in court against the state’s demurrer, or motion to dismiss, attorney Michael Risher insisted the state constitution does not permit police to analyze a person’s DNA sample or retain their DNA profile unless a judge finds probable cause for criminal charges against them. 

“It shouldn’t analyze the sample if no charges are pending,” Risher said. “It shouldn’t analyze samples of someone not being prosecuted.”

If he were to accept Risher’s argument, Judge Schulman would have to find that individual privacy concerns outweigh the government’s interests in collecting DNA samples and data.

Citing the California Supreme Court’s ruling in People v. Buza, state Justice Department lawyer Jose Zelidon-Zepeda argued that California’s highest court found the government has a stronger interest in collecting and retaining arrestees’ DNA information.

The state Supreme Court ruled in June 2018 that the government’s need to identify the person arrested, assess risks and danger, and potentially use the DNA data to exonerate wrongfully convicted persons, among other interests, outweighs the privacy interests of a man convicted of arson in 2009.

Risher countered the justices limited the ruling to whether the state could collect a DNA sample from that particular defendant and nothing more. The ruling did not address the legality of analyzing DNA samples and retaining DNA profiles for those arrested but never convicted, he added.

The state of California maintains it has a procedure in place that lets non-convicted arrestees apply to have their DNA profiles erased from the database. Risher said that procedure is seldom used and imposes burdens on applicants, such as making them miss work or pay fees to get required court documents for the applications.

Citing the U.S. Supreme Court’s reasoning in Maryland v. King, Zelidon-Zepeda argued collecting DNA samples and profiles is no more invasive than taking fingerprints.

The judge disagreed.

“DNA technology is far more revealing and powerful than a fingerprint,” Schulman said. “It can reveal family history, susceptibility to diseases.”

Zelidon-Zepeda noted the DNA profiles stored in state and national databases don’t reveal that type of sensitive information. But Schulman pointed out the state still retains the original DNA sample, from which that information may be gleaned.

After two and a half hours of debate, Schulman took the arguments under submission.

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