TAKING DNA FROM ARRESTEES: A CONFLICT BETWEEN STATE AND FEDERAL COURTS
On December 3, 2014, the California Court of Appeal, First Appellate District, unanimously held, in People v. Buza, that California’s law, enacted pursuant to Proposition 69, which allows taking DNA samples from all who are arrested for felonies, is unconstitutional.
That decision is in conflict with a recent decision by the Ninth Circuit U.S. Court of Appeal in the case of Haskell v. Harris. On March 20, 2014, the Ninth Circuit, in an unanimous en banc opinion (11 justices), rejected a challenge to California’s Proposition 69.
JONES & MAYER, as counsel to the California State Sheriffs’ Association (CSSA), the California Police Chiefs’ Association (CPCA), and the California Peace Officers’ Association (CPOA), prepared and submitted an amicus curiae brief supporting the California Attorney General in Haskell v. Harris. The legal reasoning articulated by the Ninth Circuit in its decision was, virtually, the same legal arguments set forth in the amicus brief.
In the Haskell case, the en banc court stated that the question presented was “(w)hether California’s DNA collection scheme was constitutional as applied to anyone ‘arrested for, or charged with, a felony offense by California state or local officials?’” The court held that, after the U.S. Supreme Court decision in Maryland v. King, 133 S. Ct. 1958 (2013), “the answer is clearly yes.” (Emphasis added.)
Unfortunately, the California Court of Appeal, in Buza, disagreed with the Ninth Circuit decision; distinguished the process under California law from the King case; and held that California’s law, which allows taking the DNA immediately and including it in a data bank before one is convicted, violated the arrestee’s right of privacy under the California Constitution.
The Buza court stated that “(t)he sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as amended (Pen. Code, § 295 et seq.) (the DNA Act), which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense ‘immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest….’”
The Court said that “(i)n a prior opinion, we held that the seizure of appellant’s DNA shortly after his arrest, at a time when he was entitled to the presumption of innocence and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures. The case now returns to us with directions from the California Supreme Court to vacate our prior decision and reconsider the matter in light of Maryland v. King, 133 S. Ct. 1958 (U.S. 2013) (King).”
The Court then states that, “(w)e have done so, and again reverse the judgment of conviction under the DNA Act . . . because of significant differences between the California DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.”
Differences Between the Laws of Maryland and California
The Buza court states that “(t)he 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 created for use in state and federal DNA databases. The latter search is the true focus of our analysis. Federal and state statutes authorizing collection of DNA samples from persons convicted of qualifying offenses have been upheld universally by federal and state courts, albeit with significant debate and disagreement among the judges who decided these cases.”
However, the Court notes, “(i)n King, the United States Supreme Court moved beyond the realm of convicted offenders, rejecting a Fourth Amendment challenge to a Maryland statute requiring collection of DNA from arrestees charged with ‘serious crimes.’ King described the ‘legitimate government interest’ served by the Maryland DNA law as ‘the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.’”
Contrary to the Maryland law, under California law, “the arrestee’s DNA may be processed on the basis of an arresting officer’s designation of the alleged crime, even if he or she is never charged with a qualifying—or indeed any—crime, and despite the fact that, because of the length of time necessary for processing a DNA sample, the DNA information will not be available for any of the purposes discussed in King before the arrestee is either released or arraigned.”
As such, held the Buza court, the justification for taking DNA immediately, to assist in identifying the arrestee, is not based in fact.
Furthermore, “the privacy expectations of a pre-arraignment arrestee are higher than those of an individual who has been subjected to a judicial determination of probable cause, and permitting DNA collection on the basis of an arresting officer’s determination of the crime increases the potential for abuse. King considered none of these issues.”
The Buza court discusses other differences between the Maryland law and California’s DNA Act, including the fact that in Maryland the sample is automatically expunged from the data bank if there is no conviction; in California it requires a petition by the formerly accused person.
“Another difference between the statutes is that Maryland expressly prohibits familial DNA searches – searches in which a partial match between an individual’s DNA profile and a profile in the DNA database is used to implicate a close biological relative of the DNA donor as a possible criminal suspect. California does not. (T)his difference is significant because familial DNA searching has nothing to do with ‘identifying’ the DNA donor and has no use other than criminal investigation.” (Emphasis in original.)
“The DNA Act also differs from the Maryland law in that it applies to all felony arrestees rather than a subset limited by the serious nature of the crime of arrest.” [In the amicus brief, filed by Jones & Mayer, in Haskell v. Harris, we argued that felonies are serious crimes.] “In our view, the differences between the California and Maryland DNA laws significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment.”
The Buza court concludes that since “the DNA Act is invalid under article I, section 13, of the California Constitution renders it academic whether the Act is also invalid under the Fourth Amendment.”
The California Constitution’s language is virtually identical to the Fourth Amendment but, states the Court, “California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution . . . .”
The Court goes into great detail in explaining how and why it distinguishes the California DNA Act from the Maryland law. It, ultimately, concludes 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 article I, section 13, of the Constitution.”
HOW THIS AFFECTS YOUR AGENCY
Unless this decision is reversed by the California Supreme Court, it essentially precludes the taking of DNA pursuant to the DNA Act. Although the federal court has found that it doesn’t infringe on one’s constitutional protections, any litigation would be filed in state court and this decision cited as binding law.
The California Department of Justice issued a teletype today, to all law enforcement agencies, stating, in part:
“THE BUZA DECISION DOES NOT IMPACT CONVICTED OFFENDER DNA SAMPLE COLLECTIONS, WHICH SHOULD CONTINUE. THOSE CONVICTED OF FELONIES, OR OF MISDEMEANORS WHO HAVE FELONY PRIORS, AS WELL AS SEX AND ARSON REGISTRANTS, REMAIN SUBJECT TO DNA COLLECTION MANDATES.
AS OF DECEMBER 3, 2014, THE CALIFORNIA DEPARTMENT OF JUSTICE WILL SUSPEND PROCESSING, UPLOAD, AND SEARCH OF ARRESTEE DNA SAMPLES IN ITS DNA DATABASE. HOWEVER, A GRANT OF REVIEW BY THE CALIFORNIA SUPREME COURT WOULD DEPUBLISH BUZA, TERMINATING ITS STATUS AS LEGAL AUTHORITY.”
It is up to the Attorney General to petition the Supreme Court for review but that cannot be done until 30 days from the date of the Buza decision.
As such, until then, taking of DNA samples is extremely problematic and, therefore, it is imperative that you seek advice and guidance from your agency’s legal counsel.
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.