Mandatory DNA Samples for Arrestees OK

9th Circuit CourthousePeople arrested in California on suspicion of a felony – but not charged or convicted – must give police a DNA sample, says the 9th Circuit Court of Appeals.

The three-judge panel split 2-1 in upholding a 2004 amendment to the state’s DNA collection law. The law requires police to take DNA samples from all felony arrestees, with or without their consent, upon arrest.

Judge Milan Smith wrote that the law does not violate the Constitution’s Fourth Amendment protections against unreasonable searches.

“Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection,” Smith wrote.  He called DNA analysis “an extraordinarily effective tool” for law enforcement in solving crimes.

 Judge William Fletcher dissented. He pointed out California’s law has no need of a warrant and no need for suspicion of a crime that the DNA sample would help solve.

“Fingerprints may be taken form an arrestee in order to identify him – that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody.”

The majority decision upholds an order by U.S. District Judge Charles R. Breyer in 2010 dismissing the constitutional challenge.

 The suit was brought by four plaintiffs arrested for felonies in 2009. There were required to give DNA samples as a result of the voter approved Prop. 69.

Elizabeth Haskell was arrested in 2009 for allegedly trying to take a person from police custody during a San Francisco peace demonstration. She argued her arrest was used as an intimidation tactic for her political activities.

Reginald Ento was arrested on suspicion of possessing stolen property and forced to give a DNA sample in the Sacramento County jail. He wanted the DNA removed from the database after charges against him were dropped.

Jeffrey Lyons Jr. was accused of trying to take someone from policy custody during a demonstration outside the Israeli consulate in San Francisco. The charge was later dismissed.

Aakash Desai, a graduate student at the University of California, Berkeley, was arrested while participating in a demonstration over tuition increases at the school. He was told he was being charged with felony burglary and required to give the DNA. When he arrived in court he learned no charges had been filed.

Case: Haskell v. Harris, No. 10-15152

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