Vol. 27 No. 19 – U.S. Supreme Court to Decide DNA Case


On November 10, 2012, the U.S. Supreme Court accepted the case of Maryland v. King for review.  At issue is the question of whether it is constitutional for states and the federal government to require that persons arrested on felony charges provide a DNA sample immediately after arrest?  Courts have consistently upheld the collection of DNA from those convicted of a crime, but the federal government and 27 states (including California) also have laws that allow the collection of DNA from people arrested but not yet convicted.

This case could have nationwide implications on the question of privacy versus public safety.  In the Maryland case, the lower court decision effectively bars the collection of genetic material from suspects who have not yet been convicted of a crime unless a warrant is first obtained.  The court had ruled that the compelled taking of the samples from mere suspects violates their Fourth Amendment right to be free from unreasonable searches and seizures.

Alonzo King Jr. had been arrested on assault charges and the police found out that the DNA sample taken from him matched the DNA of a rapist from a 2003 rape in Salisbury, Md.  King was later found guilty of the 2003 attack and sentenced to life in prison.  The Maryland Court of Appeals ruled that those who have only been arrested have a “presumption of innocence” and should “be free from biological searches.”  Their ruling overturned King’s rape conviction and the state petitioned the Supreme Court for review.

California and the Ninth Circuit Cases

California’s DNA Act was first passed by the state Legislature in 1998, and is known as the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act).  It was codified as Cal. Penal Code § 296(a)(2)(C).  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 2004 it was amended by passage of Proposition 69 to require law enforcement officers to collect DNA samples from all adults arrested for felonies.

However, in August, 2011 the California Court of Appeal reached a similar conclusion to the Maryland decision.  In the case of People v. Buza, the Court ruled that the taking of DNA from felony arrestees, immediately after arrest, was an unconstitutional invasion of the arrestee’s right of privacy.   The California Attorney General immediately filed a petition with the California Supreme Court for review of that decision.

The firm of JONES & MAYER prepared and submitted an amicus letter, on behalf of the California State Sheriffs’ Association, urging the California Supreme Court to accept the case for review. The Court has accepted the Buza case but it is still pending resolution. [For more details on the legal issues involved, please refer to our 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).]

Ironically, the Ninth Circuit U.S. Court of Appeal reached a totally different conclusion than the California Court of Appeal and much more supportive of law enforcement.   On March 1, 2012, in a 2-1 decision, the Ninth Circuit held, in the case of Haskell v. Harris, that requiring persons arrested on felony charges to provide a DNA sample was not unconstitutional. The Court stated that it would “assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples.”

The Ninth Circuit stated that California law enforcement officials can keep collecting DNA samples from people arrested for felonies because law enforcement’s interest in solving cold cases, identifying suspects, and even exonerating the wrongly accused, outweighed privacy concerns. In addition, in July, the 3rd U.S. Circuit Court of Appeals, in Philadelphia, also overturned a lower court judge who called it an unconstitutional invasion of privacy to routinely collect DNA samples from defendants who had yet to be convicted.  The U.S. Supreme Court’s ultimate decision will be dispositive of these cases, as well.


As noted above, the California Supreme Court accepted the Buza case for review and, therefore, the law in California remains unchanged – DNA samples can still be taken from those arrested for felonies.  Obviously, since the state of the law is unsettled, each law enforcement agency must make these decisions on their own.

We always urge that each agency confer with its own designated legal counsel for advice and guidance.  In this situation, it seems most appropriate to also confer with the Office of the District Attorney for guidance, since it is the DA who will need to defend the taking of DNA evidence if it is subsequently used.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email 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.