By Darren Chaker
People v. Buza, 197 Cal.App.4th 1424, --- Cal.Rptr.3d ----, 2011 WL, Cal.App. 1 Dist.,2011, DNA and Forensic Identification Data Base and Data Bank Act held unconstitutional in part.
The DNA and Forensic Identification Data Base and Data Bank Act of 1998, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution.
Applying the totality of the circumstances test of reasonableness, the court first discussed the privacy interests of arrestees, noting that they have greater privacy rights than probationers, parolees or convicted prisoners, and that an arrestee who has not yet been the subject of a judicial determination of probable cause, falls closer to the ordinary citizen end of the continuum than one as to whom probable cause has been found by a judicial officer or grand jury. The court also noted that many arrestees are legally innocent, yet their DNA profiles, specimens, and samples remain in government control unless they successfully obtain expungement.
The court then found that the governmental interest in DNA testing for identification at such an early juncture in the criminal process is problematic, as testing under the DNA Act currently could not be used to immediately verify who an arrestee is, while the investigative use of DNA testing appeared to be of incremental utility at best. The court therefore held that the portion of the DNA Act which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense immediately following arrest, or during the booking process, or as soon as administratively practicable after arrest, was unconstitutional.
Of course Buza is contrary to United States v. Pool, 09-015-EJG-GGH, Eastern District of California, May 27, 2009, where the court upheld the constitutionality of DNA sample collection from all those arrested upon probable cause for the commission of a federal felony finding that after a judicial or grand jury determination of probable cause has been made for felony criminal charges against a defendant, no Fourth Amendment or other Constitutional violation is caused by a requirement that the defendant undergo a mouth swab or blood test for the purposes of DNA analysis to be used for criminal law enforcement identification purposes. This decision was upheld by the Ninth Circuit .
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© 2011 Darren Chaker. All Rights Reserved.
