Is taking DNA a reasonable search? US judges uphold California law.

A federal appeals court in San Francisco ruled Thursday that a California law requiring the taking of a DNA sample from every adult arrested for a felony does not violate the Constitution’s prohibition on unreasonable searches.

The panel of the Ninth US Circuit Court of Appeals voted 2-1 to uphold the law, which permits the collected samples to be stored in a nationwide database for potential use in future investigations.

Challengers had argued in a class-action lawsuit that the DNA law – passed in 2004 as Proposition 69 – would facilitate the use of their DNA samples in future investigations without the government first obtaining a warrant or reasonable suspicion. They said such actions violate Fourth Amendment privacy protections.

“We conclude that the government’s compelling interests far outweigh arrestees’ privacy concerns,” wrote Judge Milan Smith in a 33-page decision joined by Senior District Judge James Dale Todd.

In a dissent, Judge William Fletcher said the DNA law ignores an important distinction that he said applies to the collection of fingerprints.

“Fingerprints may be taken from an arrestee in order to identify him – that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody,” Judge Fletcher wrote in his 27-page dissent.

“DNA samples are not taken from felony arrestees under Proposition 69 in order to identify them,” he said. “Rather, they are taken solely for an investigative purpose, without a warrant or reasonable suspicion.”

The taking and storage of such DNA samples, solely for future investigations, is invalid under existing legal precedents, Fletcher said.

Fletcher also noted that all four of the plaintiffs were arrested for felonies but none were convicted. Two were not even charged.

Judge Smith said Fletcher’s fingerprint and DNA analogy rested on an “unprecedented and misguided reading of the Fourth Amendment.”

“Were he correct, our entire criminal justice system would be upended,” Smith said. “For example, under our dissenting colleague’s theory, the police could never be allowed to match crime scene fingerprints to databases of prints collected from past arrestees.”

A key issue in the case was the difference between the privacy interests of an arrestee versus the privacy interests of a convicted felon.

Forty-seven states and the federal government authorize DNA collection from all convicted felons, while 22 states and the federal government allow DNA collection as well from at least some arrestees.

Plaintiffs had argued that not all arrestees will be convicted. A mere arrestee maintains a higher level of Fourth Amendment protection from government intrusions than convicted felons, they said.

“We have never allowed the compulsory taking of DNA samples from mere arrestees. We should not begin now,” Fletcher said.

The majority judges countered that the actual DNA collection was a “minor inconvenience” involving a cotton swab scraped along the inside of a subject’s cheek.

Such an intrusion is far less than others in a jail setting, like strip searches and monitored use of the toilet and showers.

Smith said the DNA testing and storage program fulfilled four important government interests. It helped to identify arrestees, solve past crimes, prevent future crimes, and exonerate the innocent.

The majority rejected concerns that DNA data might be misused or contribute to an all-knowing surveillance state. “Although plaintiffs use the phrase ‘DNA profile’ to evoke images of an oppressive ‘Big Brother’ cataloguing our most intimate traits, the reality is far less troubling,” Smith wrote.

California’s law and others include safeguards restricting the use of the data for law enforcement identification purposes only, he said, similar to the use of the fingerprint database.

The California law includes a mechanism for the expunging of DNA data in cases where charges were dropped or the arrestee was acquitted. But Fletcher noted that it is up to the arrestee to expend his or her own time and money to remove the data from the national database.