Federal Court Rules Collection of DNA From Felony Arrestee Constitutional.

Over the last year, the Ninth Circuit and more than one particular California Court of Appeal have ruled on the constitutionality of California’s law directing police to collect DNA from an arrestee.

In a 1st Appellate District Court of Appeal selection in California, Men and women v. Buza (2011 DJDAR 11741), the court reversed Buza’s misdemeanor conviction for refusing to supply a DNA sample. A lot more recently, a federal trial judge in Sacramento, in U.S. v. Tuzman (11-427 (Feb. 24, 2012) ruled that it was unconstitutional for police to gather a DNA sample just before a felony arraignment. Nevertheless, just a single day prior to the Tuzman ruling, a U.S. Circuit Court of Appeals, which outrank federal trial courts, issued a ruling in Haskell v. Harris (2012 DJDAR 2462) that the collection of DNA was constitutional.

A small background is helpful to appreciate the nature of the public concern with misuse of a DNA data base. In 1998, California passed the DNA and Forensic Identification and Data Base and Information Bank Act. It essential DNA testing of adults convicted of only certain crimes. The intent was multifold, but 1 purpose was to solve unsolved crimes.

In 2004, Proposition 69, also identified as the DNA Act, was voted into effect by California voters. It expanded the scope of the 1998 act to allow the collection of DNA samples from all adult felony arrestees. The samples are then entered into a national database called the Combined DNA Index Technique (CODIS.

Prop 69 did not grow to be successful till January 1, 2009, but after it became successful, litigation arose speedily over its apparent violation of the Fourth Amendment’s proper against unreasonable search and seizure, particularly offered the principle that one is presumed innocent till confirmed guilty. It merits mention that in Tuzman, U.S. District Judge Lawrence Karlton noted 41 % of Americans have been arrested by age 23. In other words, the constitutional problem is far more than merely academic in nature.

Fast forward to 2012 and Haskell v. Harris talked about above. Haskell was arrested by San Francisco police at a peace demonstration. She was told she would be charged with a misdemeanor below state law if she refused to offer a DNA sample by means of a buccal swab of the inside of her cheek.

Haskell then became a class representative in a federal class action difficult Prop 69. Their case 1st sought a preliminary injunction of the act. The district court denied the motion. On appeal to the U.S. Court of Appeals, Ninth Circuit, Haskell lost once more.

In affirming the reduced court, the Ninth Circuit Court of Appeals agreed that Haskell failed to show a likelihood of good results on the merits of the class action, namely that Prop 69, as applied to felony arrestees however to be convicted, violated the Fourth Amendment.

The Court held that Haskell could not show the arrestees’ privacy interests outweighed the government’s need to have for DNA samples to resolve unsolved crimes and exonerate innocent suspects. Moreover, the buccal swab was a minimal privacy invasion only after a probable cause determination leading to the arrest. In addition, the court felt assured that the DNA samples could not be employed for more than just identifying the person, as the act gives for significant penalties for any misuse of the database or DNA.

It is really attainable that Haskell v. Harris will be appealed to the U.S. Supreme Court, especially in light of the current opinion in U.S. v. Jones (2012 DJDAR 895), which seemed to strengthen Fourth Amendment rights in invalidating police use of a GPS without a warrant on a drug suspect’s vehicle.