C.A. 1st

The First Appellate District reversed a judgment. The court held that the seizure of DNA from an arrestee, as authorized under the DNA and Forensic Identification Data Base and Data Bank Act of 1998, violated the arrestee’s Fourth Amendment right to be free from unreasonable search and seizure.

Mark Buza was arrested after he set fire to a parked police car. Several hours after his arrest, while he was confined in county jail and prior to any appearance before a magistrate or judge, Buza was asked to provide a DNA sample, as required by Penal Code §296. That section, which is part of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, 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 ….” Buza refused.

Buza was charged with arson, possession of an incendiary device, vandalism, and refusal or failure to provide a DNA specimen. He pleaded not guilty to all four counts. Buza was tried before a jury and convicted of all four counts.

The court of appeal reversed, holding that the attempted seizure of Buza’s DNA following his arrest was unconstitutional.

The court noted that forced DNA testing of persons convicted of crime has been upheld. However, the same reasoning does not apply to persons who had merely been arrested. The government’s interest in the accurate identification of arrestees does not, the court found, outweigh the individual arrestee’s interest in being free from unreasonable search and seizure.

In reaching this conclusion, the court rejected the contrary holding of Haskell v. Brown (N.D.Cal. 2009) 677 F.Supp.2d 1187. The Haskell court denied a preliminary injunction to enjoin enforcement of §296(a)(2)(c), the provision requiring mandatory testing of arrestees. With respect to the individual privacy interest, Haskell viewed arrestees as having an expectation of privacy that was less than that of the general population. In particular, the Haskell court noted a prior court’s observation that once an individual is lawfully arrested and booked, he no longer has any right of privacy as to his identity. The court went on to analogize DNA testing to the fingerprinting of arrestees, which is routine regardless of whether the pending criminal investigation requires fingerprint evidence. The Haskell court found no legally significant distinction between DNA testing and other forms of identification.

The court found the Haskell’s analysis flawed in two respects. First, it accepted an analogy between fingerprinting and DNA testing that ignored vast differences in the amount and type of personal information each procedure reveals. Second, it adopted an expansive definition of the term “identification”—used in the DNA Act to limit authorized analysis and use of DNA—that conflated the concepts of identity verification and criminal investigation.

The legitimacy of the comparison between the fingerprinting process and DNA sampling is, the court explained, at the heart of the caselaw on DNA testing. In general, the cases upholding DNA testing statutes have dismissed concerns about the extent of the personal information contained in DNA samples by limiting their attention to the profile used in DNA databanks, as currently restricted by statutes and scientific capability. The court noted that even if the genetic profile currently made available by mandated DNA testing did not now reveal any significant amount of personal data, scientific advances would undoubtedly increase the quantity and nature of information that could, in the future, be extracted from that same limited genetic information.

In any case, the private information that could be extracted from noncoding DNA was not the only or even the greatest danger to privacy. DNA profiles are derived from blood specimens, buccal swab samples and other biological samples containing the entire human genome, which the Department of Justice’s laboratory is required to collect and store.

Another distinction significant in considering the privacy interests at stake is that DNA testing is viewed by society as a process reserved exclusively for criminals. Society tends to view DNA sampling not just as a badge of crime, but as a badge of the most dangerous crimes.

Turning to the second issue, the court observed that in the context of fingerprinting, courts have traditionally drawn a distinction between identification and investigation. Fingerprints that are validly obtained for purposes of identification can later be used as evidence or in an investigation. But suppression is required if the fingerprints were taken purely for an investigatory purpose. Haskell’s analysis of the DNA Act, however, employed an unduly broad definition of “identification.”

The first component of the Haskell court’s definition of “identification”—“who that person is”—addresses the government’s interest in establishing the true identity of an arrestee. DNA collection does not serve this purpose. The sampling process mandated by the DNA Act is not an efficient means of establishing who a person is, because DNA taken upon arrest cannot be used immediately for that purpose. Before law enforcement can obtain information about an arrestee from DNA testing pursuant to the DNA Act, the DNA sample must be analyzed and a DNA profile created and run through a database. The process takes about a month, in contrast to the 10 minutes generally required to run fingerprints through a database. California’s protocol for DNA collection and analysis confirms that DNA is not used to verify who a person is. To begin with, far from relieving law enforcement agencies of the need to take fingerprints, the Act requires collection of a right thumb print and a full palm print of each hand as well as a DNA sample. DNA profiles are thus neither necessary nor helpful for verifying who a person is at the time of arrest. Indeed, the fact that DNA testing cannot be employed to verify a person’s true identity at the time of arrest demonstrates that collection of a DNA sample at this time has another purpose.

The court found Haskell’s inclusion of criminal investigation in the meaning of the word “identification” was consonant with the purpose of the DNA Act: Proposition 69 was clearly designed to permit the use of an arrestee’s DNA for investigative purposes. The ballot arguments in favor of the measure relied heavily on crime-solving promises and concerns, emphasizing the utility of DNA in investigating and solving crime.

Further, the text of the DNA Act does not restrict the investigatory uses to which DNA specimens, samples, and profiles may be put by law enforcement agencies. Despite the provision in the DNA Act that the DOJ “shall perform DNA analysis … only for identification purposes” (§ 295.1(a)), other provisions authorize release of DNA samples and profiles collected under the Act “to law enforcement agencies …” Thus, the DNA Act expressly authorizes the use of government stored DNA, including samples containing the entire human genome, not to “identify” a person in the sense of verifying who he or she is, but to assist with the “arrest, investigation, prosecution, or exclusion” of a person. And because the DNA Act authorizes retention of DNA samples as well as the profiles derived from them, those retained samples can be used to criminally investigate persons whose DNA was obtained upon arrest years earlier, even if they were never criminally charged or were acquitted.

The court concluded that what the DNA Act authorizes is the warrantless and suspicionless 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. Such suspicionless searches violate the Fourth Amendment.