A California law that requires police to collect DNA samples from anyone arrested on suspicion of a felony, regardless of whether the person is ever charged or convicted of a crime, was upheld by a federal appeals court in San Francisco today.
A panel of the 9th U.S. Circuit Court of Appeals by a 2-1 vote rejected a challenge by four citizens from San Francisco, Berkeley and Sacramento who had DNA samples taken with cheek swabs after they were arrested.
Two who were arrested at demonstrations were never charged with a crime and charges against the other two were dropped.
The law allowing DNA collection from arrestees was enacted by state voters in a ballot initiative in 2004 and went into effect in 2009.
It expanded a previous law, passed by the Legislature in 1998, that required DNA testing of people convicted of certain crimes.
The four plaintiffs, represented by the American Civil Liberties Union, claimed that since they weren’t convicted of crimes, the measure violated their constitutional Fourth Amendment right to be free of unreasonable searches and seizures.
They argued the DNA, which is sent to state and national databanks, could be misused to reveal private genetic, medical and family information.
But the appeals court majority said the sampling is a minimal intrusion, “substantially similar to fingerprinting” of arrestees, and is justified by valid government purposes.
Judge Milan Smith wrote, “DNA is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes and exonerate innocent suspects.
“After weighing these factors, we conclude that the government’s compelling interests far outweigh arrestees’ privacy concerns,” Smith wrote.
Judge William Fletcher dissented, saying that it is unconstitutional to take DNA samples for solely investigative purposes.
The four plaintiffs appealed to the 9th Circuit after U.S. District Judge Charles Breyer of San Francisco upheld the law in 2009.
ACLU attorney Michael Risher said they will now appeal to either an expanded panel of the circuit court or the U.S. Supreme Court.
“This is not the last word,” Risher said.
“We continue to believe this law violates the Fourth Amendment.
Taking DNA is not like taking a fingerprint. DNA contains a tremendous amount of personal information,” he said.
State Attorney General Kamala Harris, whose office defended the law, said in a statement, “Today’s decision by the 9th Circuit is a victory for public safety in California.”
A separate state court challenge to the law is now pending before the California Supreme Court.
Harris said of the second case, “I will continue to vigorously defend this law in state court.”
Julia Cheever, Bay City News