Metropolitan News-Enterprise


Thursday, December 4, 2014


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Appeals Court Strikes Down Part of State’s Law on DNA Testing

Panel Says Provision Requiring All Felony Arrestees to Give Samples Violates California Constitution


From Staff and Wire Service Reports


The First District Court of Appeal yesterday struck down a portion of an initiative measure that requires the collection of a DNA sample from anyone arrested on suspicion of committing a felony.

Presiding Justice J. Anthony Kline, writing for Div. Two, said a provision added to the state’s 1984 DNA law by Proposition 69, in 2004, violates Art. I, §13 of the state Constitution, the search-and-seizure clause.

The initiative, also known as the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, significantly enlarged the scope of persons subject to warrantless DNA searches by, among other things, providing that, beginning on Jan. 1, 2009, warrantless seizure of DNA would be required of any adult arrested for or charged with any felony.

That violates the ban on unreasonable searches, Kline said.

“We conclude that the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees’ expectation of privacy,” he wrote.

Importance of Ruling

There was no immediate order stopping police in California from continuing to collect DNA, and the appellate court’s ruling could be appealed. Still, the ruling is important, said Julia Harumi Mass, a senior staff attorney at the American Civil Liberties Union of Northern California, which filed a brief in the case.

“It’s one of the first opinions to recognize that DNA analysis is fundamentally different from a fingerprint,” Mass said. “Arrestee DNA collection raises serious privacy concerns.”

Mass said a case challenging California’s DNA collection law in federal court has been put on hold in light of yesterday’s ruling.

Supporters of the law, which was approved by voters in 2004, say law enforcement’s interest in solving cold cases, identifying crime suspects and even exonerating the wrongly accused outweigh privacy concerns raised by the forced DNA collections.

The state Attorney General’s office is reviewing the decision, spokesman David Beltran said.

Second Reversal

Yesterday’s ruling reverses, for the second time, Mark Buza’s conviction on a misdemeanor charge of refusal to provide a DNA sample. A San Francisco Superior Court judge sentenced him to six months in jail on that charge, concurrent with a 16-month sentence for arson.

In its August 2011 ruling in the case, the appellate panel found that the law violated the Fourth Amendment. The state Supreme Court, however, granted review and then sent the case back to the panel for reconsideration in light of Maryland v. King (2013) 133 S.Ct. 1958, which upheld a similar law in Maryland.

Kline expressed doubts that King was controlling on the federal question, given significant differences between Maryland’s law and Proposition 69.

He also pointed out that the Maryland law applies only to those arrested for “serious crimes,” a more limited category than all accused felons, and that it prohibits familial DNA searches, in which a partial match between an individual’s DNA profile and a profile in the DNA database is used to implicate a close biological relative of the DNA donor as a possible criminal suspect.

California, the presiding justice acknowledged, limits familial searches to samples taken from convicted felons. But there is no such limitation in the text of Proposition 69, he noted.

Policy Reasons

In any event, Kline went on to say, there are strong policy reasons supporting the court’s determination that Proposition 69 fails to pass muster under the state Constitution, even if it does not violate the Fourth Amendment.

Kline wrote:

“Like the four dissenting Justices in King, we are unwilling to accept the premises that analysis of arrestees’ DNA is intended or in fact used for identification rather than investigation, or that ‘identification’ encompasses investigating criminal history. The King majority’s construction of a new governmental interest in ‘identity’ that includes not only verification of who an arrestee is but also what that person has done in the past allowed the court to elevate the ‘governmental interest’ side of the balance in weighing the law’s promotion of ‘legitimate governmental interests’ against its intrusion on arrestee’s reasonable expectation of privacy. Because this definition of ‘identity’ folds investigation into identity verification, and because DNA testing at the time of arrest does not further actual identity verification, the court’s analysis distorted the ‘totality of the circumstances’ required to be examined in measuring the reasonableness of the search at issue.”

The case is People v. Buza, 14 S.O.S. 5472.


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