Arrestee DNA Swab Doesn’t Violate U.S., California Constitutions

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By Joyce E. Cutler

Requiring DNA testing of all those arrested on felony charges as part of the booking process doesn’t violate California or U.S. constitutional rights, a fractured California Supreme Court ruled April 2.

Justices in a 4-3 decision upheld the conviction of an arson suspect who refused to grant a swab of his cheek during his arrest.

Mark Buza was later convicted of felony arson and misdemeanor refusing to take a DNA test. He had his DNA forcibly taken by a swab-yielding deputy in the courtroom and appealed the conviction for refusing to submit a sample under the 2004 voter-approved DNA Fingerprint, Unsolved Crime and Innocence Protection Act.

The DNA Act expanded the scope of DNA sampling to include individuals who are arrested for any felony offense, as well as those who have been convicted of such an offense. The court in 2010 upheld the testing requirement as valid for those convicted of felonies.

Buza “raises a number of concerns about the potential application of the DNA Act in other cases involving other, differently situated arrestees. He also raises concerns that changes in technology might open up new prospects for using his DNA samples and profiles in ways that are uniquely invasive of personal privacy. We are mindful of these concerns, and we recognize that the DNA Act may raise additional constitutional questions that will require resolution in other cases,” Justice Leondra Kruger wrote for the majority.

“Under the circumstances before us, we conclude the requirement is valid under both the federal and state Constitutions, and we express no view on the constitutionality of the DNA Act as it applies to other classes of arrestees. We accordingly reverse the judgment of the Court of Appeal in this case,” said Kruger.

“What does this mean for the tens of thousands of Californians every year who are arrested and not convicted, and the tens of thousands of Californians arrested and never charged? It’s not clear. Very few of them are willing to go through the process, which is incredibly unclear, to get their record expunged,” Michael Risher, senior staff attorney ACLU Foundation of Northern California, who filed a brief on Buza’s behalf, told Bloomberg Law.

“My position is you have to decide a case based on the situation in which the alleged illegality occurred,” J. Bradley O’Connell, First District Appellate Project assistant director who argued for Buza, told Bloomberg Law.

“And there’s an old maximum in the law that a search isn’t made legal by what happens afterward. And the fact that he was later charged and convicted doesn’t resolve the issue of whether it was legal to demand a DNA search at a point in which his only status was that of someone who had been arrested but not charged,” O’Connell said April 2.

The California Attorney General’s office is reviewing the 95-page decision. “The office of Attorney General Xavier Becerra remains committed to upholding Californians’ important privacy interests while doing everything we can to ensure our law enforcement officials are equipped with the tools they need to keep Californians safe,” a representative for Becerra (D) said in an email to Bloomberg Law.

Protections

All 50 states and the federal government require DNA collection from those convicted of felonies, and a majority of states and the federal government authorized collecting DNA from some or all persons arrested for felonies, the majority said.

Safeguards exist against the wrongful use or disclosure of sensitive information, and the DNA Act makes the misuse of a DNA sample a felony, punishable by years of imprisonment and criminal fines. “These strong sanctions substantially reduce the likelihood of an unjustified intrusion on the suspect’s privacy,” the majority said.

Breadth of Collection

Three justices dissented, ruling the state failed to carry its burden showing the act’s reasonableness outweighs individual privacy.

When weighed against the state’s generalized interest in identifying arrestees and solving crimes, “an arrestee’s reasonable privacy interest in his or her genetic information—uniquely protected under the California Constitution—must win,” wrote Justice Mariano-Florentino Cuéllar.

Cuéllar was joined by Justice Goodwin Liu and Justice Dennis Perluss, California Court of Appeal, Second Appellate District, presiding justice sitting by designation.

For purposes of constitutional analysis, Buza is no different than any felony arrestee who hasn’t been charged, convicted, or found by a neutral magistrate to be lawfully detained. “This point is critical because it brings into focus the startling breadth of DNA collection and retention authorized by the statute,” Liu said.

King Implications

Buza was arrested by a San Francisco police officer who saw him running away from a squad car that had burning tires. An officer found matches, a container of oil, a road flare, and a container of liquid that smelled like gasoline in a backpack near where he was arrested. The appeals court twice reversed his conviction of refusing to provide a sample as unreasonably invading of privacy and invalid under the Fourth Amendment.

Justices reviewed Buza’s conviction looking at the impact of Maryland v. King with regard to the Fourth Amendment and California Constitution article 1, Section 13 on unreasonable search and seizure.

The 2013 U.S. Supreme Court ruling held a swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that’s reasonable under the Fourth Amendment.

The case is People v. Buza , Cal., No. S223698, opinion filed 4/2/18 .

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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