California law enforcement officers can continue collecting DNA samples from adults arrested for felonies, a federal appeals court ruled on Thursday.

A divided three-judge panel of the 9th US Circuit Court of Appeals ruled that a 2004 California law requiring officials to collect the DNA samples does not violate the US Constitution's ban on unreasonable searches.

"DNA analysis is an extraordinarily effective tool for law enforcement to identify arrestees, solve past crimes, and exonerate innocent suspects," Judge Milan Smith wrote for the 2-1 majority. The government's interests in the genetic information outweigh any privacy concerns, the majority concluded.

The DNA samples, from a swab of an inmate's cheek, are analyzed for certain identifying markers and the information is then stored in a nationwide database. Someone who is tested and not convicted can ask to have the sample destroyed and their DNA profile removed from the database.

Four California residents, who had been arrested for felonies but who were not convicted, filed a class action in 2009 against officials who run the state's DNA collection system. They asked the court to issue an order barring California from collecting DNA samples from people who were arrested but not convicted. The district court rejected that request, and the 9th Circuit upheld that decision.

The appeals court found that the arrestees' DNA profiles contained such minimal information that they were comparable to traditional fingerprints.

But Judge William Fletcher dissented. Fingerprints are taken to identify a person upon arrest, whereas DNA samples "are taken solely for an investigative purpose, without a warrant or reasonable suspicion," he wrote.

"The majority allows the government to treat arrestees, who are presumed innocent, as if they've been convicted of some sort of crime," said Michael Risher, an attorney with the American Civil Liberties Union who represented the plaintiffs. He said his clients would seek review by the full 9th Circuit.

California Attorney General Kamala Harris praised the ruling as "a victory for public safety in California." She said in a statement that the collection of DNA from adult felony arrestees had helped solve thousands of crimes.

Many states, as well as the federal government, have passed laws requiring people who are arrested to provide their DNA. Last year, in United States v. Mitchell, the 3rd Circuit upheld DNA testing as "an accurate, unique, identifying marker - in other words, as fingerprints for the twenty-first century." Ruben Mitchell, who was charged with intent to distribute cocaine, has appealed that case to the Supreme Court.

-Reuters

See the article here:
US court finds DNA testing constitutional

(REUTERS) - California law enforcement officers can continue collecting DNA samples from adults arrested for felonies, a federal appeals court ruled.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Thursday that a 2004 California law requiring officials to collect the DNA samples does not violate the U.S. Constitution's ban on unreasonable searches.

"DNA analysis is an extraordinarily effective tool for law enforcement to identify arrestees, solve past crimes, and exonerate innocent suspects," Judge Milan Smith wrote for the 2-1 majority. The government's interests in the genetic information outweigh any privacy concerns, the majority concluded.

The DNA samples, from a swab of an inmate's cheek, are analyzed for certain identifying markers and the information is then stored in a nationwide database. Someone who is tested and not convicted can ask to have the sample destroyed and their DNA profile removed from the database.

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Four California residents, who had been arrested for felonies but who were not convicted, filed a class action in 2009 against officials who run the state's DNA collection system. They asked the court to issue an order barring California from collecting DNA samples from people who were arrested but not convicted. The district court rejected that request, and the 9th Circuit upheld that decision.

The appeals court found that the arrestees' DNA profiles contained such minimal information that they were comparable to traditional fingerprints.

But Judge William Fletcher dissented. Fingerprints are taken to identify a person upon arrest, whereas DNA samples "are taken solely for an investigative purpose, without a warrant or reasonable suspicion," he wrote.

"The majority allows the government to treat arrestees, who are presumed innocent, as if they've been convicted of some sort of crime," said Michael Risher, an attorney with the American Civil Liberties Union who represented the plaintiffs. He said his clients would seek review by the full 9th Circuit.

California Attorney General Kamala Harris praised the ruling as "a victory for public safety in California." She said in a statement that the collection of DNA from adult felony arrestees had helped solve thousands of crimes.

Many states, as well as the federal government, have passed laws requiring people who are arrested to provide their DNA. Last year, in United States v. Mitchell, the 3rd Circuit upheld DNA testing as "an accurate, unique, identifying marker - in other words, as fingerprints for the twenty-first century." Ruben Mitchell, who was charged with intent to distribute cocaine, has appealed that case to the Supreme Court.

(Editing by Eddie Evans and Eric Beech)

Original post:
DNA Testing is Constitutional, Rules U.S. Appeals Court

Law enforcement officers may take a DNA sample from anyone arrested on a felony charge without running afoul of the suspect's right to be free from unreasonable search and seizure, a divided federal appeals court ruled Thursday.

The challenge brought by a group of Californians arrested for alleged felonies but never convicted upheld a 2004 amendment to the state's laws governing DNA collection and use.

In a 2-1 ruling, a panel of the U.S. 9th Circuit Court of Appeals compared taking an oral swab from a suspect with fingerprinting arrestees, a decades-old booking practice consistently upheld by the courts as a legitimate identification aid.

"We assess the constitutionality of the 2004 amendment by considering the 'totality of the circumstances,' balancing the arrestees' privacy interests against the government's need for the DNA samples," said the opinion written by Judge Milan D. Smith Jr.

"DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects," wrote Smith, who was named to the court by President George W. Bush, in an opinion joined by a visiting Tennessee judge appointed by President Reagan. "After weighing these factors, we conclude that the government's compelling interests far outweigh arrestees' privacy concerns."

The sole Democratic appointee on the panel, Judge William A. Fletcher, dissented, calling the law authorizing DNA sampling for investigative purposes contrary to Supreme Court and 9th Circuit precedent.

Fletcher, an appointee of President Clinton, noted that three of the four lead plaintiffs in the class-action lawsuit had been arrested during demonstrations in the Bay Area in 2009, including a UC Berkeley student protesting tuition hikes and faculty layoffs.

Elizabeth Haskell, another of the plaintiffs represented by the American Civil Liberties Union of Northern California, was arrested during a peace demonstration in San Francisco three years ago. No charges were filed, but she was threatened with prosecution unless she submitted to the DNA collection. She told the court she considered the swabbing "an intimidation tactic" aimed at stifling her free speech rights.

Michael T. Risher, the ACLU lawyer who argued the case, said a petition for rehearing by the full 9th Circuit was likely and that he expected the judges to be inclined to reconsider the split panel ruling.

"This is clearly an issue where different reasonable judges have differing opinions, and we'll have to see how it ends up," Risher said.

About 300,000 people are arrested for alleged felonies each year in California, and a third are never convicted, Fletcher wrote. Many, including two of the plaintiffs, are never even charged, he added.

Once an arrestee's DNA sample is taken by swabbing the inside of the mouth, it is analyzed to produce a genetic profile of the individual and submitted to the Combined DNA Index System, known as CODIS, and available to law enforcement from all 50 states and the federal government. Genetic evidence from unsolved crime scenes also resides in the database and is scanned weekly for matches with arrestee profiles.

carol.williams@latimes.com

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Appeals court upholds DNA testing of felony suspects

A federal appeals court in San Francisco ruled Thursday that a California law requiring the taking of a DNA sample from every adult arrested for a felony does not violate the Constitution’s prohibition on unreasonable searches.

The panel of the Ninth US Circuit Court of Appeals voted 2-1 to uphold the law, which permits the collected samples to be stored in a nationwide database for potential use in future investigations.

Challengers had argued in a class-action lawsuit that the DNA law – passed in 2004 as Proposition 69 – would facilitate the use of their DNA samples in future investigations without the government first obtaining a warrant or reasonable suspicion. They said such actions violate Fourth Amendment privacy protections.

“We conclude that the government’s compelling interests far outweigh arrestees’ privacy concerns,” wrote Judge Milan Smith in a 33-page decision joined by Senior District Judge James Dale Todd.

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In a dissent, Judge William Fletcher said the DNA law ignores an important distinction that he said applies to the collection of fingerprints.

“Fingerprints may be taken from an arrestee in order to identify him – that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody,” Judge Fletcher wrote in his 27-page dissent.

“DNA samples are not taken from felony arrestees under Proposition 69 in order to identify them,” he said. “Rather, they are taken solely for an investigative purpose, without a warrant or reasonable suspicion.”

The taking and storage of such DNA samples, solely for future investigations, is invalid under existing legal precedents, Fletcher said.

Fletcher also noted that all four of the plaintiffs were arrested for felonies but none were convicted. Two were not even charged.

Judge Smith said Fletcher’s fingerprint and DNA analogy rested on an “unprecedented and misguided reading of the Fourth Amendment.”

“Were he correct, our entire criminal justice system would be upended,” Smith said. “For example, under our dissenting colleague’s theory, the police could never be allowed to match crime scene fingerprints to databases of prints collected from past arrestees.”

A key issue in the case was the difference between the privacy interests of an arrestee versus the privacy interests of a convicted felon.

Forty-seven states and the federal government authorize DNA collection from all convicted felons, while 22 states and the federal government allow DNA collection as well from at least some arrestees.

Plaintiffs had argued that not all arrestees will be convicted. A mere arrestee maintains a higher level of Fourth Amendment protection from government intrusions than convicted felons, they said.

“We have never allowed the compulsory taking of DNA samples from mere arrestees. We should not begin now,” Fletcher said.

The majority judges countered that the actual DNA collection was a “minor inconvenience” involving a cotton swab scraped along the inside of a subject’s cheek.

Such an intrusion is far less than others in a jail setting, like strip searches and monitored use of the toilet and showers.

Smith said the DNA testing and storage program fulfilled four important government interests. It helped to identify arrestees, solve past crimes, prevent future crimes, and exonerate the innocent.

The majority rejected concerns that DNA data might be misused or contribute to an all-knowing surveillance state. “Although plaintiffs use the phrase ‘DNA profile’ to evoke images of an oppressive ‘Big Brother’ cataloguing our most intimate traits, the reality is far less troubling,” Smith wrote.

California’s law and others include safeguards restricting the use of the data for law enforcement identification purposes only, he said, similar to the use of the fingerprint database.

The California law includes a mechanism for the expunging of DNA data in cases where charges were dropped or the arrestee was acquitted. But Fletcher noted that it is up to the arrestee to expend his or her own time and money to remove the data from the national database.

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Is taking DNA a reasonable search? US judges uphold California law

(Reuters) - California law enforcement officers can continue collecting DNA samples from adults arrested for felonies, a federal appeals court ruled on Thursday.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that a 2004 California law requiring officials to collect the DNA samples does not violate the U.S. Constitution's ban on unreasonable searches.

"DNA analysis is an extraordinarily effective tool for law enforcement to identify arrestees, solve past crimes, and exonerate innocent suspects," Judge Milan Smith wrote for the 2-1 majority. The government's interests in the genetic information outweigh any privacy concerns, the majority concluded.

The DNA samples, from a swab of an inmate's cheek, are analyzed for certain identifying markers and the information is then stored in a nationwide database. Someone who is tested and not convicted can ask to have the sample destroyed and their DNA profile removed from the database.

Four California residents, who had been arrested for felonies but who were not convicted, filed a class action in 2009 against officials who run the state's DNA collection system. They asked the court to issue an order barring California from collecting DNA samples from people who were arrested but not convicted. The district court rejected that request, and the 9th Circuit upheld that decision.

The appeals court found that the arrestees' DNA profiles contained such minimal information that they were comparable to traditional fingerprints.

But Judge William Fletcher dissented. Fingerprints are taken to identify a person upon arrest, whereas DNA samples "are taken solely for an investigative purpose, without a warrant or reasonable suspicion," he wrote.

"The majority allows the government to treat arrestees, who are presumed innocent, as if they've been convicted of some sort of crime," said Michael Risher, an attorney with the American Civil Liberties Union who represented the plaintiffs. He said his clients would seek review by the full 9th Circuit.

California Attorney General Kamala Harris praised the ruling as "a victory for public safety in California." She said in a statement that the collection of DNA from adult felony arrestees had helped solve thousands of crimes.

Many states, as well as the federal government, have passed laws requiring people who are arrested to provide their DNA. Last year, in United States v. Mitchell, the 3rd Circuit upheld DNA testing as "an accurate, unique, identifying marker - in other words, as fingerprints for the twenty-first century." Ruben Mitchell, who was charged with intent to distribute cocaine, has appealed that case to the Supreme Court.

(Reporting by Terry Baynes; editing by Eddie Evans and Eric Beech)

Link:
U.S. appeals court finds DNA testing constitutional

California's voter-approved law requiring police to take DNA samples from anyone arrested on a felony charge is constitutional because it intrudes only minimally on privacy while enhancing the state's ability to solve crimes and clear the innocent, a federal appeals court ruled Thursday.

DNA sampling is no more invasive than fingerprinting and provides an "extraordinarily effective tool for law enforcement," the Ninth U.S. Circuit Court of Appeals in San Francisco said in a 2-1 ruling.

Dissenting Judge William Fletcher, however, said fingerprints contain less information than DNA and are used for a different reason - to identify suspects. He said DNA shouldn't be collected from suspects who have already been identified through fingerprints, and haven't been convicted yet, merely to try to connect them to other crimes.

The law, part of a 2004 ballot measure that took effect in 2009, requires police to swab an inner cheek of all felony arrestees for DNA and enter the information in a national database. The previous law required DNA samples from convicted felons.

Those who are not convicted of the new charges within three years can ask a judge to remove their genetic data, but prosecutors can veto that request.

The California Supreme Court is reviewing a separate challenge to the law. Michael Risher, an American Civil Liberties Union lawyer, said both cases are headed for the U.S. Supreme Court, along with a federal law allowing officers to take DNA samples from anyone arrested for any federal crime.

Thursday's ruling allows the government to "treat people who have not been convicted of anything, and are presumed innocent, as if they've been found guilty," said Risher, who argued against the DNA law. He said the state has no evidence that "taking (DNA) from people who are not convicted does anything to solve crime."

Attorney General Kamala Harris, whose office defended the law, called the ruling "a victory for public safety." She said DNA from felony arrestees "has assisted law enforcement in solving thousands of crimes."

In Thursday's ruling, Judge Milan Smith said DNA collection is "a minor inconvenience" that is "far less intrusive" than the police-supervised blood extraction from a suspected drunken driver that the Supreme Court approved in 1966.

He said opponents' "images of an oppressive Big Brother" were misplaced. A suspect's DNA profile contains only limited, essential information, the law makes it a crime to misuse the data and innocent suspects can get themselves removed from the database, the judge said.

Fletcher's dissent questioned the effectiveness of those safeguards and said DNA sampling "reveals information about familial relationships," which can be used to broaden police investigations of evidence found at crime scenes.

The ruling can be viewed at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/23/10-15152.pdf.

This article appeared on page C - 1 of the San Francisco Chronicle

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DNA samples of felony arrestees OK, court rules