Vol. 26 No. 27 – DNA Case Accepted By The Supreme Court For Review


In August, 2011 the California Court of Appeal held, in People v. Buza, that the taking of DNA from felony arrestees, immediately after arrest, was an unconstitutional invasion of the arrestee’s right of privacy. The California Supreme Court has accepted the Buza case for review.
First and foremost, kudos must be given to Attorney General Kamala Harris for her immediate action following the Court of Appeal’s decision.   Her office filed a petition for review with the California Supreme Court, which has now been accepted.

In addition to the petition for review, several amicus letters were also filed with the Supreme Court, supporting the Attorney General and urging the Court to accept the case for review.  The firm of JONES & MAYER prepared such an amicus letter which was sent by the president of the California State Sheriffs’ Association, Merced County Sheriff Mark Pazin.  [We also published two Client Alert Memos regarding the Court of Appeal decision – see Vol. 26, No. 17 (8/8/11) and Vol. 26, No. 19 (8/19/11).]

Court of Appeal Decision

The Court of Appeal held 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 and is invalid under the Fourth Amendment of the United States Constitution.”
The appellate court noted that “California law enforcement officials have been authorized to collect forensic identification blood, saliva or buccal (cheek) swab samples from persons convicted of certain serious crimes since 1984.  In 1998, the Legislature enacted the DNA Act, which required “DNA and forensic identification data bank samples” from all persons convicted of specified offenses.  The purpose of the DNA Act ‘is to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.’”

Additionally, “(a)t the November 2004 General Election, California voters amended the DNA Act by enacting Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act. That measure significantly enlarged the scope of persons subject to warrantless DNA searches by, among other things, providing that, beginning on January 1, 2009, warrantless seizure of DNA would be required of any adult arrested for or charged with any felony.”

The Court of Appeal ruled that “(w)hat the DNA Act authorizes is the warrantless and suspicion less search of individuals, before a judicial determination of probable cause to believe they have committed a crime, for evidence of crime unrelated to that for which they have been arrested. The United States Supreme Court has never permitted suspicion less searches aimed at uncovering evidence of crime outside the context of convicted offenders.  Indeed, the suspicion less search is the very evil the Fourth Amendment was intended to stamp out.” (Emphasis in original.)


Many in law enforcement were dismayed by the ruling since the taking of DNA has, apparently, been very successful in identifying those people referred to above.  Now that the Supreme Court has accepted the case, the decision by the Court of Appeal is “depublished,” pursuant to the California Rules of Court, Rule 8.1105, and only published cases can be cited as precedent.
As such, the law remains as it was prior to the decision.  That means that the authority created under the relevant statutes, as well as the expansion of that authority by a vote of the people in 2004 (Prop.69) is, once again, the law of the state.  It will remain as such until, and unless, the Supreme Court rules to the contrary.

As we said in the August 8th Client Alert Memo, “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 ofUnited States v. Pool.”

This is another one of those legal issues which require that each agency, which was impacted by the Buza case, seek and obtain advice and guidance from its legal advisor as to how it will proceed.  As always, if you wish to discuss this 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.