Federal Judges Reconsider Police Collection of DNA

In a special en banc hearing yesterday, eleven judges of the Ninth Circuit Court of Appeals considered the constitutionality of a California law mandating that felony arrestees – people who have merely been arrested but not charged or convicted of a crime – provide a DNA sample to law enforcement. The law was put in place by a 2004 state ballot initiative that took effect in 2009.

As reported by the San Francisco Chronicle and Associated Press, a number of the judges seemed skeptical of the law. Judge Harry Pregerson called police-mandated DNA swabbing "a terrible intrusion on privacy." Once police take a DNA sample, said Judge Raymond Fisher, "your whole history is ... in possession of the government." Judge N. Randy Smith stated matter of factly that "the government doesn’t lose anything by putting off DNA collection" until a judge or at least a prosecutor has had a chance to review the case.

One of the main targets of the judges’ unease was the tenuous distinction the Assistant Attorney General drew between the government’s use of DNA for identification versus investigatory purposes. The state attorney stated that the DNA samples are used only for identification purposes, and argued that because arrestees have no constitutional right to conceal their identity from police, the sample collection does not violate Fourth Amendment protection against unreasonable searches and seizures.

But ACLU attorney Michael Risher denounced this argument as factually and legally incorrect. First, the DNA sample isn’t even taken until the arrestee has been identified via fingerprinting. Second, the ACLU’s voluminous record includes reports from state agencies attesting to the fact that it is standard practice to compare the samples to forensic databases of crime scene samples. In other words, the DNA samples are being used to investigate whether the arrested individual may have been involved in past unsolved crimes, and this search is conducted without probable cause or a warrant.

Contrasting the California law with the Maryland DNA collection law currently under fire in other federal courts, Judge N. Randy Smith noted that the California statute seems to deviate from the norm that a judge must issue a warrant to initiate a search. He questioned whether police in California now have total discretion when it comes to launching a criminal investigation, whereas in Maryland a person’s DNA sample cannot be taken and compared to unknown crime scene samples until after an arraignment hearing.

The Assistant Attorney General argued that under current law, arrestees can be subject to a strip search based purely on police officers’ discretionary determination of sufficient probable cause, and a simple swab of the cheek is much less invasive than a strip search. Judge Fisher  disagreed, noting that while the search itself may be less invasive, the information gleaned – which includes intimate details of one’s health and heritage – is not. The state attorney emphasized that under the statute, the government can only examine 15 genetic loci that are not currently known to code for any such traits. And though the government does have access to the entire genetic sample, this is also the case when they draw blood to test an arrestees’ blood alcohol content (BAC).

The important difference, however, is that the government doesn’t keep a drunk driving suspect’s blood after they determine his BAC. They do keep a felony arrestee’s.

In a memorable analogy, Michael Risher argued that in the United States, citizens are not in the habit of turning over all their most personal documents to the government under the promise that the government will only look at the name on those documents.

This sparked an extended discussion about the appropriateness of the analogy, given that people don’t usually leave their private papers strewn about in public, whereas they do abandon their DNA everywhere they go. Since police are permitted to search abandoned property, the judges wondered whether there would be a difference if police just picked up a piece of hair off the ground and used the DNA they retrieved from that. Risher replied that the US Supreme Court has clearly established that what matters is how the search actually occurred. That the information in question could have been otherwise gleaned doesn’t justify the more intrusive means. In this case, the fact that police could have found an arrestee’s abandoned hair doesn’t justify swabbing the inside of his or her cheek.

Invalidating California’s DNA collection law would have enormous significance for similar policies across the country and the world.