SAN FRANCISCO (CN) – A federal judge indicated Friday he will uphold a California law allowing police to collect and store DNA samples from people arrested but not yet charged with crimes.
The government has a high interest in accurately identifying arrestees, U.S. District Judge Charles Breyer said, perhaps even greater than an arrestee’s expectation of privacy under the Fourth Amendment. Breyer suggested scenarios in which the arrestee is an ex-con who has a gun on him, but he gives the cops a phony I.D. during booking, or one in which someone is arrested on a case of mistaken identity.
“I guarantee there isn’t a judge who would say they [the government] wouldn’t have an interest in ascertaining the identity of an ex-con. I couldn’t imagine a greater interest,” Breyer said.
“There is certainly a government interest in solving all sorts of crimes. That does not mean the government can dispense with the requirements of the Fourth Amendment,” ACLU attorney Michael Risher countered.
“I’m not saying it can,” said Breyer. “I’m saying you’ve lost the Fourth Amendment argument. It went out the window with fingerprinting. If you can take their fingerprints, why can’t they take the DNA? It’s a better, more accurate, less intrusive form of identification.”
The constitutionality of DNA samples taken from arrestees has been questioned since Elizabeth Haskell challenged California’s DNA collection law in 2009.
After police arrested her for allegedly disrupting law enforcement during a peace rally, Haskell’s class action claims police told her she would be charged with a separate misdemeanor when she refused to let authorities swab the inside of her cheek. Haskell gave the sample, and was later released without being charged.
Breyer refused to enjoin the law later in 2009, writing, “Arrestees undoubtedly have a greater privacy interest than convicted felons, but plaintiffs have not shown that that interest outweighs the government’s compelling interest in identifying arrestees, and its interest in using arrestees’ DNA to solve past crimes.”
After a three-judge panel of the 9th Circuit initially affirmed the ruling, the court reheard the case en banc in 2012. Around the same time, the U.S. Supreme Court took up 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 that’s a routine part of the booking process.
In 2014, the 9th Circuit issued a final en banc opinion affirming Breyer’s initial ruling.
“The Supreme Court’s decision in King is fatal to plaintiffs’ claims,” U.S. Circuit Judge Milan Smith wrote, explaining that the high court’s ruling had essentially made DNA collection “a legitimate police booking procedure that is reasonable under the Fourth Amendment” – similar to “fingerprinting and photographing.”
“This case is over,” he said.
But four years later, the case was once more in front of Judge Breyer, who heard the state’s motion for judgment on the pleadings.
The government framed its motion in light of King and the California Supreme Court’s April ruling in People v. Buza, in which it reinstated a man’s misdemeanor conviction for refusing to supply authorities with his DNA after his arrest.
Breyer had ordered a stay in Haskell’s case pending the outcome in Buza – but on Friday, he seemed unconvinced that Haskell’s ACLU lawyers could sway his original stance.
“In the final analysis it will do more good than bad,” Breyer said. “It will ensure the people subjected to the criminal justice system are the people that should be and not those who are wrongfully arrested and wrongfully convicted, which from the point of view of a judge is a terrible injustice.”
But Risher said he fears the sample will be used by law enforcement for more than just identification. The sample can be stored in California’s DNA databank forever unless the arrestee goes through a lengthy process to have it removed. And DNA contains sensitive information about one’s family, health and genetic-predisposition to certain traits.
Breyer surmised that technology has advanced so much since Haskell filed her lawsuit that it could be just a short time before the argument becomes moot.
“It’s only a matter of time before DNA samples will be done in an hour, a half hour, or instantaneously. We all see it coming,” Breyer said, noting that processing DNA took weeks back in 2009. “Many weeks have become days. Days are going to become hours. That’s where it’s going.”
“My current argument isn’t about timing. It’s about an event,” Risher said. “If they can test it while they are still processing this person, then so it goes.”
Breyer chuckled. “Maybe I won’t decide this then for a year.”
He took the arguments under submission.