Vol. 26 No.17- Collecting DNA From Arrestees Is Unconstitutional

                                          CLIENT ALERT MEMORANDUM

To:                 All Police Chiefs and Sheriffs

From:             Martin J. Mayer, Esq.


August 8, 2011

On August 4, 2011, the California Court of Appeal, First District, ruled that taking a DNA sample from all felony arrestees violated the Fourth Amendment to the Constitution and is an unreasonable search and seizure. This is the first ruling from a California appellate court regarding the constitutionality of the DNA Act, which was first passed by the state Legislature in 1998, and amended by voters in 2004 by passage of Proposition 69.

The DNA Act calls for the collection of DNA “immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody.”

In the case of People v. Buza, the defendant had been arrested on suspicion of arson and, several hours after his arrest, while confined at the county jail and before any appearance before a judge, he was asked to provide a DNA sample, pursuant to the DNA Act. He refused and was ultimately charged, in addition to the arson related matter, with refusal to provide a DNA specimen (Penal Code 298.1). A jury subsequently convicted him of all counts and the court informed him that “he would be included in the State’s DNA and forensic identification database and data bank program.”

DNA vs. Fingerprints

Justification for taking DNA samples usually rely on the argument that it is no different than taking fingerprints or photographs of arrestees. However, the Court of Appeal found that DNA contains “an extraordinary amount of private personal information” which is not found through fingerprinting an arrestee. Additionally, the primary purpose of fingerprinting an arrestee is to verify the identity of the individual, whereas the collection of DNA is for the investigative purpose of linking that person to other crimes.

“The sampling process mandated by the DNA Act is not an efficient means of establishing who a person is, because DNA taken upon arrest cannot be used immediately for that purpose. Before law enforcement can obtain information about an arrestee from DNA . . . the DNA sample must be analyzed and a DNA profile created and run through a database.”

Unlike fingerprints, used to identify an arrestee, “(w)hat the DNA Act authorizes is the warrantless and suspicionless search of individuals, . . . for evidence of crime unrelated to that for which they have been arrested. The United States Supreme Court has never permitted suspicionless searches aimed at uncovering evidence of crime outside the context of convicted offenders. Indeed, (t)he suspicionless search is the very evil the Fourth Amendment was intended to stamp out.”

Fourth Amendment

The appellate court noted that “subject only to a few specifically established and well delineated exceptions, . . . warrantless searches are per se unreasonable under the Fourth Amendment; the state therefore bears the burden of showing that the search at issue is reasonable and therefore constitutional.”
The court noted that prior court decisions have held that “the collection of DNA by means of a blood test is a minimal intrusion into an individual’s privacy interest in bodily integrity, while collection by means of a buccal swab is even less intrusive. The collection of the DNA sample, however, is only the first part of the search authorized by the DNA Act; the second occurs when the DNA sample is analyzed and a profile is created for use in state and federal DNA databases.”
The court stated that “the touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. [W]e must balance the invasion of appellant’s interest in privacy against the government’s interest in seizing biometric material from his body without a warrant supported by probable cause and based solely upon appellant’s status as a mere arrestee.”
Furthermore, said the court, “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. For the reasons we have set forth, we conclude that the DNA Act, to the extent it requires felony arrestees to submit a DNA sample . . . , without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees’ expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution.”


As noted above, this is the first appellate court in California to address this issue. It is likely that it will also be addressed by other appellate courts in California and, currently, the federal courts have similar issues before them. In fact, recently, the 3rd Circuit U.S. Court of Appeals upheld the constitutionality of the federal government’s DNA collection law in the case of United States v. Mitchell. In addition, the federal law is being reviewed by an en banc panel of the 9th Circuit U.S. Court of Appeals in the matter of United States v. Pool.

It is also possible that the Attorney General of California might pursue an appeal of the decision inBuza. However, at this time, the Buza case is binding on California law enforcement and, as such, enforcement of the DNA Act, by charging an arrestee who refuses to provide a DNA sample, is no longer an available tool. The decision has not declared the entire Act unconstitutional, only the provision mandating that DNA samples be taken from all felony arrestees.
Securing advice and guidance from your agency’s designated legal advisor is most important, especially in convoluted matters such as this.
If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.