DNA: Law requiring arrestees' samples struck down

by jeeg 8. August 2011 23:31

A voter-approved California law requiring police to collect DNA samples from anyone arrested for a felony violates the constitutional privacy rights of people who have not been charged with or convicted of a crime, a state appeals court ruled Thursday.

The law expanded previous statutes that authorized law enforcement officials to take DNA from convicts and suspects with felony records. Approved by 62 percent of the voters in 2004 and effective in 2009, it required anyone arrested on suspicion of a felony to be swabbed on an inner cheek for genetic material, which would then be forwarded to a database accessible to state and local police and the FBI.

The federal government and about half the states have laws allowing DNA collection from some or all arrestees. Supporters say the measures are minimally intrusive and a powerful police resource in unsolved "cold cases."

Responding to a federal court challenge to the California law last year, then-Attorney General Jerry Brown called DNA evidence "the fingerprint of the 21st century" and declared, "This is no more a violation of privacy than you have when you give up your fingerprints."

Beyond fingerprints' reach

But the First District Court of Appeal in San Francisco said DNA contains "an extraordinary amount of private personal information" not available from fingerprints. Unlike fingerprints, which are primarily used to identify suspects, DNA evidence is collected in hopes of linking arrestees to other crimes, or to crimes they might commit in the future, the court said.

These searches are conducted "without individualized suspicion" of guilt in those crimes and often before a judge has decided whether police had grounds for the arrest in the first place, the court said.

Courts have upheld DNA testing of prisoners and parolees, but someone who has only been arrested has privacy rights "closer to the ordinary citizen," Presiding Justice J. Anthony Kline said in the 3-0 ruling.

A Brown appointee, Kline said studies have questioned the value of collecting DNA from arrestees, but even if it helped police solve cases, "the effectiveness of a crime-fighting technology does not render it constitutional."

Kline cited state records showing that of 407,000 adults arrested for felonies in California in 2009, only 51 percent were convicted. Under the law, DNA samples from the other 49 percent will remain in the database for years unless an arrestee was acquitted at trial or the prosecutor agreed to remove the sample.

It was the first California appellate ruling on an issue that has divided courts elsewhere. A federal judge in San Francisco upheld the law in 2009, but the Ninth U.S. Circuit Court of Appeals put the case on hold while a separate 11-judge panel reviews a challenge to a federal law that requires DNA testing of suspects seeking bail on federal felony charges.

Conviction overturned

Thursday's decision overturned the misdemeanor conviction and six-month sentence of Mark Buza, who refused to give a DNA sample after he was arrested in January 2009 for setting fire to a San Francisco police car.

It won't do much for Buza, who was also convicted of arson and served a 16-month prison sentence. But his lawyer, J. Bradley O'Connell of the First District Appellate Project, said the court drew a crucial distinction between arrest and conviction.

"Before you're convicted, the only legitimate intrusions upon your freedom and privacy are those that are directly related to the prosecutorial needs of that specific case," O'Connell said. The DNA searches are unrelated to the arrest and are conducted "in hopes of getting lucky and tying the arrestee to some wholly different crime," he said.

State Attorney General Kamala Harris could appeal the ruling to the state Supreme Court. Her office said it was reviewing the case and declined further comment. But the leader of an organization that filed arguments in support of the law predicted the state's high court will reverse Thursday's ruling.

"We know of young women that have been murdered that would still be alive" if such a law had been in effect in their state, said Jayann Sepich, a New Mexico woman whose 22-year-old daughter, Katie Sepich, was raped and murdered in 2003.

Would have helped case

Gabriel Avila, arrested on a burglary charge in 2004 and later released without DNA testing, pleaded guilty to the murder after he was rearrested in 2007.

Jayann Sepich said mandatory DNA testing wouldn't have saved her daughter but would have solved the case earlier and kept Avila in prison. New Mexico's DNA collection statute is known as Katie's Law, and Sepich's group, DNA Saves, is promoting similar laws nationwide.

Bob Egelko, SF Chronicle



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