A federal appeals court in San Francisco agreed today to take another look at whether a California law requiring police to collect DNA samples from anyone arrested on suspicion of a felony is constitutional.
The 9th U.S. Circuit Court of Appeals announced an expanded 11-judge panel will review a decision in which a smaller panel of the court upheld the law by a 2-1 vote in February.
The law is part of an initiative measure enacted by state voters in 2004.
It requires collection of DNA samples from people arrested on suspicion of a felony regardless of whether they are ever charged or convicted of a crime.
Four citizens who had DNA taken with cheek swabs after they were arrested, but who were never convicted of a crime, claim the law violates their constitutional Fourth Amendment right to be free of unreasonable searches.
The four plaintiffs, from San Francisco, Berkeley and Sacramento, are represented by the American Civil Liberties Union. Two who were arrested at demonstrations were never charged with a crime and charges against the other two were dropped.
They say DNA collection is far more intrusive than fingerprinting because the DNA can reveal a person’s entire genetic blueprint and can be misused to reveal private genetic and medical information.
“DNA contains a tremendous amount of personal information,” ACLU attorney Michael Risher said earlier this year.
The lawsuit challenges only the collection of DNA from suspects and does not oppose taking DNA when a person has been convicted of a crime or when prosecutors have obtained a search warrant authorizing the procedure.
State lawyers defending the law contend there are restrictions on the use of the information and that the DNA is useful for identifying arrestees, solving past crimes and exonerating innocent people.
In the majority decision in which the smaller panel upheld the law in February, 9th Circuit Judge Milan Smith wrote, “After weighing these factors, we conclude that the government’s compelling interests far outweigh arrestees’ privacy concerns.”
The appeals court’s grant of review by an 11-judge panel, known as an en banc panel, means the February decision no longer has any legal force.
ALCU spokesman Rebecca Farmer said the larger panel will hear arguments on the case during the week of Feb. 17.
The circuit court, which hears appeals from federal courts in nine western states, reserves en banc review for the most important cases and grants such hearings in only about 20 cases per year.
Julia Cheever, Bay City News