A majority of an 11-judge panel of the 9th Circuit Court of Appeals did not appear sympathetic Wednesday to state lawyers’ efforts to preserve a California law that mandates taking of DNA samples from anyone arrested for a felony – even if they are never charged with a crime.
The determination of who must give a DNA sample is based on a police officer’s decision to make a felony arrest, “it is what is in the mind of the police. So we are effectively saying the police are more important than the prosecutor,” said Judge N. Randy Smith during questioning of Deputy Attorney General Daniel Powell.
The 11-judge en banc panel , in a courtroom packed to overflowing, grilled lawyers on both sides about the constitutionality of California’s voter initiative, Prop. 69, which made collection of DNA samples from anyone arrested for a felony mandatory.
Elizabeth Haskell and two others were never even charged with crimes after their arrests and a four man, Jeffrey P. Lyons Jr. was charged but the case was later dismissed. All four argue the DNA collection violates the Fourth Amendment protection against unreasonable search and seizure.
All four objected to collection of their DNA samples after their arrests. Nevertheless, their DNA samples were seized and their DNA profiles loaded into a national database known as the Combined DNA Index System, CODIS. Haskell, Lyons and Aakash Desai were all arrested during political demonstrations in 2009. Reginald Ento was arrested when he attempted to return stolen property to its owner.
Defense lawyer Michael Risher, of the ACLU, said the taking of the mouth swab for genetic tissue amounts to an improper seizure and the analyzing of the DNA for a law enforcement database is the illegal search.
Chief Judge Alex Kozinski asked Risher if it would still be improper if police retrieved the DNA material from an exterior source, such as searching a jail cell for hair follicles after a defendant is released.
Risher said that still amounts to a search and then a more complex legal question becomes whether it was “abandoned property” the police are entitled to collect.
“That’s a little weird, talking about leaving a piece of yourself as abandonment,” Kozinski said.
“Well, leaving DNA is not intentional, it isn’t even knowing. This case is a more direct issue,” Risher said.
Judge Milan Smith, Jr., wrote the majority three-judge panel decision in February upholding the California law. He launched the arguments with the opening questions, which appeared to be an attempt to salvage his legal position and preserve the state law.
He asked whether the circuit should wait for what appears to be a likely order by the U.S. Supreme Court to take up a Maryland appeal and address this question in a challenge to a similar Maryland law.
Risher described the Maryland law as very different from California’s and thus representing different questions. In Maryland, DNA swabs are taken but authorities are not allowed to analyze them until a felony charge has been filed. In addition, not all felonies require DNA collection. Maryland limits it to a specific list of serious felonies.
Smith pressed on, pointing out that Judge Charles Breyer in San Francisco was the trial judge in this case and if the Supreme Court take s it up, Breyer’s brother, Justice Stephen Breyer, would have to recuse himself from hearing the appeal. “Are you sure you want this to be your test case,” he asked.
Judge Margaret McKeown asked if Risher would still have a claim if the state law only permitted the taking of DNA but not its analysis unless there was a conviction.
That would resolve some claims but not all of them, Risher said.
The debate did bring lighter moments. Judge Harry Pregerson pointed out that “DNA collection is a more severe intrusion than a fingerprint. And now we know that even junk DNA is important. We see that in the New York Times,” he said.
Milan Smith responded, “As much as we all love the New York Times, it is not part of the record.”
“But we can take judicial notice,” Pregerson retorted, drawing laughter from the crowd.
In February, a three-judge panel split 2-1 in holding that the California law does not violate the Fourth Amendment because DNA analysis “is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes and exonerate innocent suspects.”
Milan Smith reasoned in that majority that voters of California approved the law and prisoners are routinely subjected to degrading physical and emotion intrusions.
The dissent, Judge William Fletcher said the February ruling conflicts with another 9th Circuit precedent in a 2009 case from Montana. (Fletcher was not selected for the en banc panel.)
In the Montana case, the court held that forcing an arrestee to provide a DNA sample violated the Fourth Amendment. That decision grows out of a 2005 precedent that police cannot compel taking of fingerprints for investigatory purposes without finding a probable cause the taking the evidence.
One of the newest members of the court, Judge Paul Watford joined the 11-judge panel but he did not ask questions.
Case: Haskell v. Harris, No. 10-15152