Challenge to compulsory DNA sampling of felony arrestees fails in California

Collecting DNA samples from adults arrested in California will remain legal, after a federal appeals court ruled last Thursday that Proposition 69, the measure behind the practice, was lawful.

A divided ninth US Circuit Court of Appeals disallowed by two votes to one a challenge brought by the American Civil Liberties Union (ACLU) that the measure was unconstitutional under the US Fourth Amendment right to be free of 'unreasonable searches and seizures'.

The court rejected the argument that the collection and analysis of genetic data from people arrested by police, but not charged or convicted, amounted to a breach of privacy. It further decided that the state's interest in justice and genetic information outweighed the privacy concerns raised by the plaintiffs.

'DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects', Judge Milan Smith wrote, in giving the majority judgment. 'After weighing these factors, we conclude that the government's compelling interests far outweigh arrestees' privacy concerns'.

The ruling was hailed as, 'a victory for public safety in California', by Californian Attorney General Kamala Harris. She said DNA taken from arrested suspects had assisted the police in 'solving thousands of crimes'.

The class-action lawsuit was filed in October 2009 by the ACLU and the four plaintiffs in the case, all of whom had DNA samples taken from them when arrested. An application for a preliminary injunction to put a halt to the taking of DNA samples from arrestees was declined by a lower court, and again rejected on appeal.

Introduced by Californian voters in 2004, Proposition 69, which came into effect on 1 January 2009, requires Californian police to take a cheek swab from arrestees before they are charged. The samples would then be stored in a national database.

Citizens arrested and then not charged can apply to have their sample destroyed and their information deleted from the system. Those wanting to have their information removed are required to make an application to do so. But this process was criticised by Judge William Fletcher, dissenting in the case, as being 'lengthy, uncertain and expensive'.

Ruling against the plaintiffs, Judge Smith said DNA collection 'is substantially indistinguishable from traditional fingerprinting as a means of identifying arrestees and, incidentally, tying arrestees to criminal investigations'. He said the ability to tackle crime would be hampered if police were prevented from using information gathered from the identification of suspects in its investigations.

But Judge Fletcher, in his dissent, said that fingerprinting a suspect is not done exclusively for identification purposes. The DNA samples, he wrote, 'are taken solely for an investigative purpose, without a warrant or reasonable suspicion'.

Furthermore, a fingerprint, he argued, shows nothing more than a person's identity while a DNA sample can reveal more detailed information such as health risks, and family ties. He also noted that one-third of the 300,000 people arrested in the state for felonies each year are never charged.

Judge Smith disagreed and said there was little authority for the dissent. 'Like the dissent, [the] plaintiffs rely on slippery-slope arguments by challenging not only what California actually does with the DNA samples, but what it could do with the information', he said.

'This line of reasoning... ignores the clear statutory limitations drawn by the Legislature, and the fact that there is no evidence in the record of a single case of DNA misuse in California'.

The ruling does not affect the practice of DNA sampling of convicted criminals, which was not challenged in the case. The Californian Supreme Court is currently reviewing a separate challenge to the law in this area.