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Appeals Court Strikes Cal. DNA Collection Law for Arrestees

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By Mark Wilson, Esq. on December 10, 2014 11:45 AM

Last year, the U.S. Supreme Court upheld a Maryland law that allowed police to collect and store DNA from arrestees. This put a wrench in a California case called People v. Buza, centering on the validity of California's own DNA collection law.

The First District Court of Appeal decided Buza in the defendant's favor in 2011. On a petition for review, the state supreme court sent it back for reconsideration in light of King. Last week, the court of appeal reached the same conclusion: California's DNA collection law violates the state constitution.

Big Differences.

King doesn't apply to California for a couple of reasons, the court said, mainly because the statutory scheme is entirely different, meaning whatever government interests were served in King aren't present in Buza.

In Maryland, DNA is taken at arrest (but only for an enumerated list of crimes), but processed only after a judicial officer has determined that there's probable cause to support the charges against the defendant. In California, the DNA collection statute is triggered when a police officer, at his sole and unmitigated discretion, determines that he has probable cause to arrest the defendant for any felony.

In Maryland, if the judge determines that there was no probable cause to charge the defendant, the DNA sample is automatically destroyed. In California, a suspect who was ultimately acquitted, or never charged with a felony, or whose felony was dismissed at the probable cause hearing, bears the burden of going through a Byzantine process of getting his DNA removed from the state database.

There's also the California Constitution to consider. Buza made his arguments based on the state constitution, not the federal one. The court was careful to point out that, even though California's unreasonable search and seizure provision roughly tracks the language of the Fourth Amendment, "the California Supreme Court has not always interpreted them as coextensive."

All of these reasons added up to: "King? What's that?"

Not Investigation? Yeah, Right.

Most forcefully, though, the court here unequivocally rejected the U.S. Supreme Court's claim in King that police need DNA in order to confirm the defendant's identity -- not to investigate. In terms of California, that claim is even more laughable, as the state attorney general acknowledges it can take up to 30 days to get a sample processed -- by which time the suspect will have been identified. "Not only are DNA profiles neither necessary nor helpful for verifying who a person is at the time of arrest, the fact that DNA testing cannot be used to immediately verify a person's true identity confirms that collection of a DNA sample at arrest has another purpose," the court said.

That purpose, the court concluded, must be investigating a crime -- past crimes committed either by the defendant or by family members with similar DNA. Warrantless searches conducted without probable cause, of course, must be justified by something other than an investigative purpose. Though this case will certainly go back to the California Supreme Court, this opinion is a good foundation on which the court can affirm the law's unconstitutionality.

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