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Calif. Justices Seem OK With DNA-Based Warrant
The Recorder
November 05, 2009
When California Supreme Court Chief Justice Ronald George advised West Hills, Calif., attorney Cara DeVito that her time was up if she wanted to save a few minutes for rebuttal during oral arguments Tuesday, she let out a soft moan.
"But I've got so much more to say," she said mock sadly.
Time got away from DeVito as the seven justices hit her with a barrage of questions in an important criminal case involving DNA profiling.
The justices may have been playing to the on-campus audience of students at UC-Berkeley School of Law's Booth Auditorium, but their questions indicated they've given the case lots of thought -- and it didn't look good for DeVito.
At issue in People v. Robinson , S158528, is whether an unknown suspect's DNA profile -- as opposed to a physical description -- can satisfy the so-called particularity requirement for issuing a "John Doe" warrant, and whether such warrants toll the statute of limitations for bringing criminal charges.
A third issue is whether the unlawful collection of a blood sample violates the Fourth Amendment's protection against unreasonable searches and seizures.
DeVito represented Paul Robinson, an alleged serial rapist found guilty of an August 1994 assault on a Sacramento woman who wasn't sure of his race and had only a vague physical description.
Four days before the six-year statute of limitations for filing charges expired on Aug. 25, 2000, prosecutors filed a "John Doe" complaint describing the then-unknown defendant from a DNA profile developed from semen at the assault site. The next day, an arrest warrant was issued, tied to the DNA profile.
The warrant for Robinson's arrest was executed three weeks later based on a match from the state's DNA databank.
The defense argued that a DNA profile lacked the statutory requirement that a warrant contain "sufficient descriptive material" -- such as race, height, body build -- to indicate "with reasonable particularity" the identification of the proposed arrestee.
Sacramento County Superior Court Judge Peter Mering disagreed, as did Sacramento's 3rd District Court of Appeal in 2007.
The California Supreme Court appears headed for a similar outcome, with most of the justices, particularly Carol Corrigan, Ming Chin and Marvin Baxter, seemingly OK with a warrant based on a DNA profile.
Corrigan pointed to court documents, which in part said the testing in this case determined the chance of another African-American having the same DNA being one in 650 quadrillion. Robinson is black.
"What can be more particular than [that]?" she asked DeVito. "We know that description is much more specific than saying, 'Put out a warrant for Ming Chin and go out and find him.'"
There could be many Ming Chins, she said, as Chin smiled at her side.
Baxter made a similar argument, saying that physical descriptions always risk the arrest of the wrong person. "Whereas," he added, "the DNA is what protects innocent third parties from being arrested, isn't that right?"
Justice Kathryn Mickle Werdegar appeared to play the devil's advocate at one point, asking San Francisco-based Deputy Attorney General Enid Camps whether a DNA profile was sufficient identification.
"You can't tell anyone's DNA when you encounter them," she said.
Justice Joyce Kennard also touched on that by pointing out DeVito's argument that DNA profiles can be fooled by identical twins.
Camps responded by saying other data could be used to differentiate between twins. "They can't be at the same place at the same time," she said.
Earlier, DeVito had argued that blood collected from Robinson while he was in a county jail in 1999 on a parole violation was taken in violation of his search and seizure protections because her client at the time had no offenses that qualified him for inclusion in the DNA databank.
"The puncturing of skin and the taking of blood is a seizure," she argued.
Camps responded later by conceding that the blood draw shouldn't have been taken. But it was a "mere mistake," she said, and not gross negligence.
Suppression of evidence, Camps noted, isn't a remedy for violations of state laws that are more restrictive than the Fourth Amendment.
