Judges Resist California DNA Swabs, With Humor

     SAN FRANCISCO (CN) – An en banc panel of the 9th Circuit criticized a California law that allows police officers to collect DNA samples from anyone arrested for a felony.
     Their comments contrast wildly with the opinion reached by a three-judge panel in February that allowed the statute to go forward.
     “DNA is much more severe an intrusion than a fingerprint,” said Judge Harry Pregerson, who seemed particularly disturbed by the law.
     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 for allegedly obstructing an officer. 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.
     The 9th Circuit granted an en banc rehearing in July.
     Representing Haskell, American Civil Liberties Union attorney Michael Risher said the buccal swab constitutes an unlawful search and seizure under the Fourth Amendment.
     ” There are at least two intrusions here,” he said. “The taking the swab is obviously a seizure under the Fourth Amendment. Taking of someone’s genetic tissue is a seizure. The analyzing of it is a search.”
     By the time the government had analyzed Haskell’s DNA sample, she had already been released from custody and had not even been charged with a crime, Risher noted.
     Deputy Attorney General Daniel Powell argued that the government only uses the samples to verify a person’s identity, much like a fingerprint, and that arrestees have minimal interest in the privacy of their identities.
     Pregerson said he was especially worried by the law’s reliance on officer discretion.
     “It all depends on what the police officer thinks,” Pregerson said. “That’s what bothers me. He makes the decision right then and there that a felony has been committed. That officer just decides for whatever reason that it is a felony and boom – he arrests the woman, and you’re going to swab her and force her to admit to all this. That’s a terrible intrusion on personal privacy.”
     “Isn’t that a little bit crazy?” he added.
     Powell invoked the invasiveness of a strip search for comparison. “We’re talking about a buccal swab here,” Powell said.
     Judge Raymond Fisher shot back: “What’s extracted is extremely invasive. The entirety of your whole history is now in the possession of the government. Without getting into the parade of horribles of 1984, if I’m fingerprinted, I’m not leaving behind anything other than my identity for the ability to link my fingerprints to something. Now if I’m arrested – I wind up leaving behind in the custody of the government the intimate details of my medical history, my heritage and whatever else is in that DNA sample.”
     Powell replied: “That’s true of any biological sample.”
     The government often collects urine samples for drug tests or blood samples to verify someone’s blood alcohol level, he pointed out.
     Chief Judge Alex Kozinksi noted drew laughter from the packed courtroom with his input.
     “But here they keep the sample,” Kozinski said. “There’s no evidence they keep the blood or they keep the urine sample, unless there’s some big store of urine somewhere. I hate to think about it.”
     Still glib, he later asked Powell if the government would start collecting DNA samples from newborns.
     “In the delivery room, do they swab down the baby?” Kozinski asked.
     Powell replied that non-felony suspects have protected privacy interests.
     Though Powell said that an arrestee “does not have an interest in concealing his identity from police officers,” Pregerson retorted, “I don’t know about that.”
     Judge Johnnie Rawlinson laughed heartily as Pregerson explained his story.
     “I had a case like that once and they just booked her under Jane Doe and she never did tell who she was,” Pregerson said. “She told me, but I kept it in confidence.”
     During rebuttal, Risher argued: “This Fourth Amendment right should not turn on linguistic games. If the police detain or arrest me, they can make me identify myself as Michael Risher. That’s not what’s going on here. They cannot make me identify myself as the guy who killed Jimmy Hoffa or robbed a bank or did anything else.”
     Kozinski quipped: “Hoffa is dead? How do you know that for a fact?”
     Risher replied: “Maybe it needs to be investigated. And that’s what they’re doing here. It’s about investigation, not identification.”

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