Friday, October 21, 2011
S.C. to Decide Whether Arrestees Must Give DNA Samples
By KENNETH OFGANG, Staff Writer
The California Supreme Court has agreed to decide whether state law requiring the taking of DNA samples from felony suspects following arrest is constitutional.
The justices, at their weekly conference in San Francisco Wednesday, unanimously granted review in People v. Buza (2011) 197 Cal.App.4th 1424.
The First District Court of Appeal, Div. Two, ruled Aug. 4 that Proposition 69, the DNA initiative approved by voters in November 2004, violates the Fourth Amendment to the extent it provides for the taking of DNA samples from felony arrestees in the absence of a judicial determination of probable cause.
The requirement that every felony suspect give a DNA sample following arrest was challenged by Mark Buza, following his arrest in San Francisco. An officer said he saw Buza running from the scene of a burning, parked police car, and a road flare and a bottle containing flammable liquid was found near the spot where Buza was arrested and matches and a container of oil were found in his pocket.
He was charged with arson, possession of combustible material or an incendiary device, and vandalism. He was also charged with refusing to provide a DNA sample.
A sheriff’s deputy testified that Buza refused to provide the sample after being warned that failure to do so was a misdemeanor and given a form explaining the statutory requirement. A defense motion to dismiss the charge on the ground that there was no constitutionally valid basis to compel the sample at the time was denied.
The San Francisco Superior Court jury found Buza guilty on all counts. The judge ordered him to provide a DNA sample prior to sentencing, and after he refused, ordered that the sample be taken by use of “reasonable force” as defined by Penal Code Sec. 298.1.
Buza was sentenced to 16 months in prison for arson, 16 months concurrent on the possession charge, and six months concurrent for refusing to provide the DNA sample. A 16-month term for vandalism was stayed pursuant to Sec. 654.
He was also ordered to register as an arson offender and informed that his DNA would remain in the state database.
Presiding Justice J. Anthony Kline, writing for the Court of Appeal, said the compelled taking of a DNA sample following conviction is a reasonable measure under the Fourth Amendment, and noted that federal cases have upheld the taking of samples from indicted defendants. But he rejected the prosecution argument that the taking of samples from arrestees prior to a judicial determination of probable cause is analogous to the taking of fingerprints.
The taking of DNA samples at the arrest stage, Kline said, is a greater threat to privacy, one that cannot be justified by governmental interests that exist at that point.
The preservation of DNA samples, he said, may lead to extraction of “even more personal and private information than is now the case.”
The legislative history of Proposition 69, he added, makes clear that, unlike fingerprinting of suspects, the primary purpose of DNA collection is not merely identification, but crime-solving, including the solving of crimes that may occur in the future, and that state law “does not restrict the investigatory uses to which DNA specimens, samples, and profiles may be put by law enforcement agencies.”
In other conference action Wednesday, the justices left standing the ruling of this district’s Div. Five in Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489.
The court held in that case that federal law does not preempt California law that makes waivers of the right to bring a representative action unenforceable in suits brought under the Private Attorney General Act. That law allows a private citizen to sue on behalf of the state for collection of penalties for violation of certain labor laws.
Copyright 2011, Metropolitan News Company