Circuit Told DNA Testing Review Moot

The 9th U.S. Circuit Court of Appeals pending 11-judge review of DNA testing of felony arrestees is moot, says California Attorney General Kamala Harris.

One day after the U.S. Supreme Court approved the practice of police collection of DNA samples for arrestees, Harris filed papers with the circuit saying its California’s practice should be upheld in light of the Supreme Court’s decision Monday finding law enforcement had legitimate interest in using DNA to identify people in custody. Maryland v. King.

“The [Supreme] court’s holding is broad, and governs this challenge to California’s collection of a forensic DNA sample at the time of booking,” wrote Deputy Attorney General Daniel Powell on Harris’ behalf.

“Accordingly, the decision of the district court [permitting the collection of DNA from arrestees] should now be affirmed,” he wrote.

The 9th Circuit held arguments by an 11-judge en banc panel in September 2012 but in November it put the case on hold pending the outcome of the Supreme Court decision in King.

The original three-judge panel had held, like the Supreme Court majority, that collection of DNA was similar to fingerprinting, which has been done with arrestees for decades.

But in dissent, Judge William Fletcher argued the DNA samples were used for broader investigative purposes and should require a warrant or reasonable suspicion of a crime to be collected from arrestees.

The full court agreed to reconsider in Haskell v. Harris.

California currently has more than 1.9 million DNA profiles in its database.  Arrestees who are not charged with a felony can apply to have their samples expunged from the database.

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