Appeals court: Calif. law enforcement can continue collecting DNA
Felony arrest gives officers permission to obtain samples
By Paul Elias
SAN FRANCISCO — A divided federal appeals court ruled Thursday that California law enforcement officials can keep collecting DNA samples from people arrested for felonies.
The 9th U.S. Circuit Court of Appeals said law enforcement's interest in solving cold cases, identifying crime suspects and even exonerating the wrongly accused outweigh any privacy concerns raised by the forced DNA collections.
The 2-1 ruling came in response to a lawsuit filed by four Californians who were arrested on felony charges but never convicted.
The arrestees sought a court order barring collection of DNA from people who are arrested but not convicted, arguing the process is an unconstitutional search and seizure since some suspects will later be exonerated.
The DNA samples are obtained with a swab of the cheek and stored in the state's DNA database, which contains 1.9 million profiles. Arrestees who are never charged with a felony can apply to have their samples expunged from the database.
The state Department of Justice said it has had roughly 20,000 "hits" connecting suspects with previous crimes since it began collecting the DNA profiles.
Judge Mylan Smith Jr., writing for the two-judge majority, said the useful law enforcement tool wasn't any more intrusive than fingerprinting.
"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," wrote Smith, who also said investigators are prohibited by law from misusing the database.
Judge William Fletcher dissented, writing that fingerprinting a suspect is done exclusively for identification purposes. The DNA samples, he wrote, "are taken solely for an investigative purpose, without a warrant or reasonable suspicion."
Fletcher noted that one-third of the 300,000 people arrested in the state for felonies each year are never charged with felonies. He said the state's offer to remove those samples from the database for those who apply is onerous.
"Expungement is a lengthy, uncertain and expensive process, Fletcher said. "Arrestees seeking expungement must pay their own expenses and attorney's fees."
Fletcher said he believed the privacy rights of arrestees never charged with felonies should trump law enforcement's need to collect to the DNA.
The same issue is also making its way through the state court system. A Court of Appeal decision striking down the collection as unconstitutional was put on hold when the California Supreme Court agreed to hear the case.
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