Vol. 27 No. 8 – Ninth Circuit Says It’s OK To Take DNA From Felony Arrestees


On March 1, 2012, the Ninth Circuit U.S. Court of Appeal, in a 2-1 decision, in the case ofHaskell v. Harris, held that requiring persons, arrested on felony charges, to provide a DNA sample was not unconstitutional.

In 2004, California’s DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act), Cal. Penal Code § 296(a)(2)(C)], was amended to require law enforcement officers to collect DNA samples from all adults arrested for felonies.  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.”

Collection of DNA

California voters approved Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (the 2004

Amendment), which expanded the DNA Act’s testing requirement to include “any adult person arrested or charged with any felony offense . . . 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.”

The Court noted that “Officers usually collect the DNA sample from a buccal swab that is gently swept along an arrestee’s inner cheek. An arrestee’s failure to cooperate with the collection is a misdemeanor.”

“Once officers collect the DNA sample, it is sent to a State laboratory, which creates a DNA profile of the arrestee. The laboratory creates a profile only for identification purposes by analyzing thirteen genetic markers known as “junk DNA,” which are not linked to any known genetic traits.”  The Court explained that the “State laboratory

then uploads the DNA profile into the Combined DNA Index System (CODIS), a nationwide collection of federal, state, and local DNA profiles.”

Following that, “when an arrestee’s DNA profile is uploaded into CODIS, it is compared to the DNA samples collected from crime scenes. If the database reveals a “hit,” the offender DNA sample is tested again for confirmation. If the test confirms a match, CODIS informs the laboratory that submitted the crime scene sample of the identity of the matching DNA profile, and the laboratory sends that information to law enforcement.”

Collection of DNA Doesn’t Violate Fourth Amendment

On October 7, 2009, Plaintiffs filed a class-action complaint, in federal court, against the State officials who administer the DNA collection system. The class consists of “persons who are required to provide a DNA sample pursuant to § 296(a)(2)(C) solely as a result of being arrested for a felony.”

The lawsuit, filed under 42 U.S.C. § 1983, alleges that the 2004 Amendment violates the Plaintiffs’ Fourth Amendment rights to be free from unreasonable searches and seizures, and their Fourteenth Amendment due process rights.  They then sought a preliminary injunction to enjoin California from collecting DNA samples from people who were arrested, but not convicted.

On December 23, 2009, the district court denied the preliminary injunction, concluding that, “California’s DNA collection requirement does not violate the Fourth Amendment.” The district court also concluded that Plaintiffs did not allege irreparable harm, the balance of equities tipped in favor of the State, and injunctive relief likely would not be in the public interest. Plaintiffs appealed to the Ninth Circuit.

The Ninth Circuit stated that the “Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures [and that] it is undisputed that a compelled DNA extraction is a “search” for Fourth Amendment purposes.”  The court then stated that “the question before us is whether California’s DNA collection requirement under the 2004 Amendment is an unreasonablesearch.”

Under the totality of the circumstances test, “[w]hether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

The Court points out that taking DNA from those convicted of felonies has been declared, on many occasions, to be totally lawful.  However, “the constitutionality of California’s requirement that all felony arrestees provide DNA samples is a question of first impression for us.”  The Court also discusses, in depth, the various aspects of California’s law and why it considers it to be impartial and not easily subject to abuse.

“The 2004 Amendment does not provide the Government carte blanche to take buccal swabs from anyone and everyone. It applies only to persons arrested on suspicion of having committed a felony. Before individuals can be required to give a buccal swab DNA sample under the 2004 Amendment, a law enforcement officer must determine that there is probable cause to suspect that person of having committed a felony” (Emphasis in original.)

“In the buccal swab DNA sampling, a cotton swab is briefly inserted into the person’s mouth . . . “and it is usually done by the arrestee himself or herself.  “As such, “the buccal swab cannot seriously be viewed as an unacceptable violation of a person’s bodily integrity.”

In addition, “given the minimal amount of information contained in a DNA profile, we are persuaded that DNA, as collected and used under the 2004 Amendment, is substantially indistinguishable from traditional fingerprinting as a means of identifying arrestees and, incidentally, tying arrestees to criminal investigations.”

The Court also found that the Government has four key interests to justify the taking of DNA from felony arrestees: identifying arrestees, solving past crimes, preventing future crimes, and exonerating the innocent.

The Court concluded that “given the arrestee’s diminished privacy interests; the de minimisnature of the physical intrusion entailed in the taking of a buccal swab; the

carefully circumscribed scope of the DNA information being extracted; the stringent limits on the manner in which that information may be used; and the well established law enforcement interest in obtaining arrestees’ identifying information, and further, to deter future criminal acts and to exculpate innocent arrestees—the balance of interests tilts strongly in favor of upholding the constitutionality of the 2004 Amendment.”


Although the Ninth Circuit U.S. Court of Appeal has ruled that Proposition 69 was constitutional, it must be noted that in August, 2011, the California Court of Appeal held, inPeople 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 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 California Supreme Court has accepted the Buza case for review and, therefore, the Court of Appeal decision cannot be cited as current law. As such, as of now, we have one decision by the federal Court of Appeal and a contrary one by the California Court of Appeal which has been accepted for review.

As we always urge, it is imperative that you seek and obtain advice and guidance from your agency’s legal counsel.  In situations such as this, that need is even greater. If you wish to discuss the decision in more 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.