Mandatory collection of DNA samples for anyone arrested, though not charged with a crime, has been declared unconstitutional by a California appeals court – and it is the second time in three years the panel has done it.
Mark Buza, convicted of arson in the burning of a San Francisco police car during a political protest, challenged the 1998 voter-approved law that requires police to collect DNA from any adult arrested for a felony, at the time of the arrest or during the booking process.
Police arrested Buza in 2009 after he was found near a burning police car and a search of nearby woods turned up a road flare and a bottle containing oil and gasloline, and oil was later found in Buza’s backpack. After his arrest, Buza refused to give a DNA sample and was charged with a misdemeanor for violation of the DNA Act.
The First District Court of Appeal held Thursday, for the second time in Buza’s case, that the collection law violates the Fourth Amendment protection against unreasonable searches because it comes before there has been a judicial determination of probable cause to level charges.
The DNA act “intrudes too quickly and too deeply” into the privacy rights of arrestees,” wrote Justice Anthony Kline for the panel.
The panel issued a similar ruling in 2011 in Buza’s case but the California Supreme Court vacated the decision and sent it back to the panel to review in light of the 2013, U.S. Supreme Court decision, in King v. Maryland, that for the first time allowed DNA collection at the time of arrest. Previously, the high court had only allowed DNA collection after a conviction.
Thursday’s ruling, after a review of King, again strikes down the law.
“Because of significant differences between the California DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment,” Kline wrote.
But in any event, the panel based its decision solely on the California Constitution, “which in our view undoubtedly prohibits the search and seizure at issue,” Kline said.
Differences in Maryland Law
The biggest between Maryland and California law is that in Maryland a court is required to make a probable cause determination and an arraignment prior to a DNA collection. While the California law demands collection of DNA as soon as possible after arrest.
“This means that the arrestee’s DNA may be processed on the basis of an arresting officer’s designation of the alleged crime, even if he or she is never charged with a qualifying – or indeed any – crime,” Kline wrote.
He also pointed out that privacy expectations of a prearraigment arrestee are higher than those who has been subjected to a judicial finding of probable cause. He added that due to processing time, it is unlikely that immediate collection would make the DNA available any sooner.
“Like the four dissenting justices in King, we are unwilling to accept the premises that analysis of arrestees’ DNA is intended or in fact used for identification rather than investigation, or that ‘identification’ encompasses investigating criminal history,” he said.
Joining Kline were Justice James Richman and visiting Alameda Superior Court Judge Steven Brick.
Case: People v. Buza, No. A125542
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