Tuesday, April 3, 2018
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California High Court Upholds Taking DNA From Arson Suspect
From staff and wire service reports
The California Supreme Court held yesterday, in a 4-3 decision, that a man who was arrested for felony arson was not subjected to an unlawful search and seizure, under either the federal or state constitution, by being ordered to provide a DNA sample as part of the booking process.
Reasonableness of the directive to the suspect was assessed by the majority in light of the specific circumstances, avoiding a broad determination as to the constitutionality of the DNA Act, enacted by voters in In 2004 as Proposition 69. By contrast, each of the two dissenting opinions argued that the act is constitutionally invalid.
The majority’s decision reinstates the conviction of arsonist Mark Buza for a misdemeanor by virtue of refusing to swab the inside of his mouth to provide a specimen, in violation of Penal Code §298.1, reversing Div. Two of the First District Court of Appeal.
Kruger’s Opinion
Writing for the high court’s majority, Justice Leondra Kruger noted that the Court of Appeal initially decided the case under the U.S. Constitution (in a 2011 opinion). However, the United States Supreme Court held in 2013, in Maryland v. King:
“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
The California Supreme Court remanded the case to Div. Two for reconsideration in light of King. The Court of Appeal in 2014 decided the case under the state constitutional analogue of the Fourth Amendment, declaring that collecting DNA samples is impermissible without “independent suspicion, a warrant or even a judicial or grand jury determination of probable cause.”
Narrow Question
Kruger wrote:
“Defendant raises a number of questions about the constitutionality of the DNA Act as it applies to various classes of felony arrestees. But the question before us is a narrower one: Whether the statute’s DNA collection requirement is valid as applied to an individual who, like defendant, was validly arrested on “probable cause to hold for a serious offense”—here, the felony arson charge for which defendant was ultimately convicted—and who was required to swab his cheek as ‘part of a routine booking procedure’ at county jail….Under the circumstances before us, we conclude the requirement is valid under both the federal and state Constitutions, and we express no view on the constitutionality of the DNA Act as it applies to other classes of arrestees. We accordingly reverse the judgment of the Court of Appeal in this case.”
The jurist stressed:
“Our holding today is limited. The sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson. Because we conclude the requirement was reasonable as applied to defendant, we hold he is subject to the statutory penalties prescribed in Penal Code section 298.1.”
She said the DNA Act “may raise additional constitutional questions that will require resolution in other cases.”
Liu’s Dissent
In a dissenting opinion, Justice Goodwin Liu asserted that “the DNA Act violates the prohibition on unreasonable searches and seizures in the California Constitution.” He termed DNA collection a “biological dragnet” and said that requiring DNA samples from persons who are not found to be lawfully detained “is not that far a step for the state to collect and retain DNA from law-abiding people in general.”
His dissent was joined in by Justice Mariano-Florentino Cuéllar and by Court of Appeal Presiding Justice Dennis Perluss of this district’s Court of Appeal, sitting on assignment. Liu and Perluss joined in Cuéllar’s dissent, which says:
“The DNA Act unlawfully invades people’s reasonable expectation of privacy in their personal genetic information. Any diminished expectation of privacy arrestees may or may not have in their genetic code does not justify an intrusion of this magnitude. The government’s asserted interest in identifying individuals in its custody and solving crimes may prove important in justifying a variety of practices. But it does not countenance this intrusion, as the government’s rationale for the DNA Act is neither borne out by the Act’s implementation nor consistent with our precedent’s restrictions on suspicionless searches. This makes the DNA Act unconstitutional under our state charter as applied to felony arrestees—individuals, like Buza, who are not yet known to be lawfully arrested, much less found guilty.”
More than half of all states allow for DNA collection when a suspect is arrested or charged.
Michael Risher, senior staff attorney at the ACLU Foundation of Northern California, which filed an amicus brief in support of Buza, commented:
“The court was looking very narrowly at the case before it and was careful to avoid answering questions that were not specifically raised by Mr. Buza’s situation.”
Jayann Sepich, the founder of DNA Saves, a group that pushes for state laws to expand DNA databases and filed an amicus brief in support of the People, remarked:
“I’m jubilant for victims, I’m jubilant for people who won’t become victims because we know that taking DNA at the time of felony arrests actually prevents future crime.”
Sepich’s daughter was raped and murdered in New Mexico in 2003.
J. Bradley O’Connell, an attorney for Buza, said the court left open the possibility of lawsuits from people who successfully challenge the basis for their arrests and people who are arrested on suspicion of felonies that are not considered serious.
“In the meantime what that means is that the current regiment is going to remain on the books,” he said.
The case is People v. Buza, 2018 S.O.S. 1593.
Copyright 2018, Metropolitan News Company