California appellate court invalidates part of DNA Act

 Posted on August 12, 2011 in Criminal Defense

The issues were recently before the First District Court of Appeal in San Francisco in regard to a man charged with failure to provide a DNA sample after an arrest on suspicion of arson in 2009. In January 2009, California law began requiring any person arrested for any felony to submit a DNA sample. The law requires the sample to be provided "immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest."

The appellate court struck down the law as unconstitutional. The court says a person arrested for a felony, but has not appeared before a judge for "a judicial determination of probable cause" is more like an ordinary citizen than a prisoner.

Ordinary citizens, cloaked in the presumption of innocence, have the full expectation of privacy, free from unreasonable governmental intrusions. The court says convicted prisoners have a "limited expectation of privacy" under the Fourth Amendment.

The appellate court recognizes that only about half of California felony arrests result in a conviction of a crime. The same law is under review in the federal courts in an appeal that has already been argued in the U.S. Court of Appeals for the Ninth Circuit. That court has not issued its ruling.

Ultimately the California appellate court says requiring a DNA sample immediately upon arrest, "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."

Source: The Atlantic, "When Is It OK to Take People's DNA Without Their Consent?," Rebecca J. Rosen Aug. 11, 2011

People v. Buza, A12552, Aug. 4, 2011