Swabbing for DNA (file)
KTVU.com and Wires
SAN FRANCISCO —
An American Civil Liberties Union lawyer asked a federal appeals court
in San Francisco Wednesday to block a California law requiring police
to collect a DNA sample from anyone arrested on suspicion of a felony.
Michael Risher, representing four citizens who challenged the law, argued,
"What they're doing here is forcing people to submit to a search
and seizure of their bodily tissues and genetic blueprint."
The law is part of a 2004 voter initiative that gradually expanded the
categories of people in the criminal justice system from whom DNA is collected
with cheek swabs.
The four plaintiffs were challenging a provision that went into effect
in 2009 and requires the DNA sampling from all felony arrestees, regardless
of whether they are ever charged or convicted of a crime.
They claim that section violates the U.S. Constitution's Fourth Amendment
ban on unreasonable searches and seizures.
The case was heard by an 11-judge panel of the 9th U.S. Circuit Court of
Appeals, which took the dispute under submission after more than an hour
of arguments and was expected to issue a ruling at a later date.
The panel is reviewing a decision in which a smaller panel of the same
court upheld the law by a 2-1 vote in February.
Deputy California Attorney General Daniel Powell, defending the law, argued
that what he termed to be a minimal intrusion on arrestees was outweighed
by the public interest in identifying suspects and solving past crimes.
"An arrestee does not have an interest in concealing his identity
from police officers," Powell told the court.
The four plaintiffs, who filed their lawsuit in federal court in San Francisco
in 2009, are from San Francisco, Berkeley and Sacramento and were forced
to provide DNA after they were arrested.
None were ever convicted of a crime; two who were arrested at demonstrations
were never charged, and charges against the other two were dropped.
They appealed to the 9th Circuit after U.S. District Judge Charles Breyer
declined to grant a preliminary injunction blocking the law in 2009.
After the smaller panel upheld the law in February, the plaintiffs appealed
further to the 11-judge panel.
Several judges at today's hearing expressed concerns about the intrusiveness
of the DNA collection, which can be used to reveal medical and genetic
"That's what bothers me," said Judge Harry Pregerson.
"An officer then and there decides a felony has been committed. Then
you take the woman in there and her cheek is swabbed. That's a terrible
intrusion on personal privacy," he said.
Judge Raymond Fisher said, "If I'm arrested, now I end up leaving
behind intimate details of my medical history, my heritage, whatever else
is in that DNA."
But Judge Milan Smith, who wrote the smaller panel's majority decision
upholding the law, likened the DNA sampling to fingerprinting, which has
been upheld by courts.
"The police use fingerprints to investigate past crimes all the time,
don't they?" Smith asked Risher.
Risher responded that courts have said that fingerprinting does not amount
to a search under the terms of the Constitution.
The ACLU contends that because DNA reveals a person's entire genetic
blueprint, the cheek swabs are far more intrusive than fingerprinting
and qualify as searches that should be allowed only if authorities have
a particular suspicion and a court-approved warrant.
The plaintiffs were challenging only the collection of DNA from arrestees
and did not oppose taking DNA when a person has been convicted of a crime
or when prosecutors have obtained a search warrant.
The 9th Circuit grants hearings before an expanded 11-judge panel, known
as an en banc panel, for only about 20 cases per year that are considered
to be of great constitutional significance.
The side that loses the panel's eventual ruling can appeal to the U.S.
If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton County criminal case or arrest
in Denton County, contact the offices of Tim Powers today. There is no
charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult