[JURIST] A three-judge panel for the California First District Court of Appeals [official website] ruled [opinion, PDF] unanimously on Thursday that DNA samples cannot be taken broadly from any adult arrested or charged with a felony. Striking down a 2004 voter-enacted provision [Propostition 69 materials] of the DNA and Forensic Identification Data Base and Data Bank Act of 1998 [text], the court ruled that such mandates violate the Fourth Amendment [text] provisions against unreasonable search and seizure and overturned the lower court’s ruling for the state. The law made it a misdemeanor for felons or suspected felons to refuse to provide a DNA sample for the state’s “DNA bank.” The state argued that DNA samples are akin to fingerprints and thus should be collected in the same manner. Justice Anthony Kline, writing for the unanimous court, disagreed:

Even focusing on the DNA profile alone, the analogy to fingerprints is blind to the nature of DNA. Courts are well aware that—[r]ecent studies have begun to question the notion that junk DNA does not contain useful genetic programming material and that an intense debate on this subject is now taking place in scientific and legal communities. … Like the DNA laws of almost every other state and federal law, the DNA Act is silent as to how long these specimens and samples may be kept, and it is reasonable to expect they will be preserved long into the future, when it may be possible to extract even more personal and private information than is now the case. … [T]he Act places few restrictions on the law enforcement uses to which such information may be put. This raises questions both about the kind of personal and private information that may be derived from the DNA samples in the DOJ’s possession, and the uses of that biometric data as scientific developments increase the type and amount of information that can be extracted from it. For example, commentators have discussed the potential for research to identify genetic causes of antisocial behavior that might be used to justify various crime control measures. Fingerprinting presents no comparable threat to privacy.

The decision overturned plaintiff Mark Buza’s misdemeanor conviction for not providing DNA evidence after confessing to committing arson. It is unknown [San Francisco Chronicle report] if state Attorney General Kamala Harris [official website] will appeal to the California Supreme Court [official website], but it is speculated that, if she does, Kline’s decision will be overturned and the law reinstated.

Last month, the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] 8-6 that law enforcement officers are permitted to obtain DNA samples [JURIST report] from arrestees. The appeals court overruled a lower court’s decision, concluding that because arrestees have a diminished expectation of privacy, the government’s interest in collecting and testing the DNA sample outweighed the intrusion on defendant’s privacy. The court pointed to the government’s compelling interest in identifying suspects and the unique attributes of DNA evidence to reach its conclusion. US Attorney General Eric Holder [official website] instructed federal prosecutors in 2010 to use DNA evidence as much as possible and collect DNA evidence from all federal arrestees [JURIST report], in a reversal of Bush administration policy. In 2009, the US District Court for the Eastern District of California [official website] upheld the constitutionality [opinion, PDF] of mandatory DNA collection for all persons arrested or detained under federal authority, holding that although the collection of DNA from those arrested on federal felony, sexual abuse, or violent crime charges does constitute a “search” within the meaning of the Fourth Amendment, a person arrested based on probable cause “has a diminished expectation of privacy in his own identity.” Federal agencies began collecting DNA samples [JURIST report] in April 2009, although they had been authorized to do so since 2006. About 1.2 million additional people could be added to the FBI’s Combined DNA Indexing System (CODIS) [official website; FBI backgrounder] every year under the expansion, although people who are not convicted can request the destruction [WP report] of their DNA samples. In November 2007, the US Court of Appeals for the Ninth Circuit ruled [JURIST report] that all convicted federal felons must provide DNA samples to a federal database available to police departments throughout the country. In 2005, the Third Circuit ruled [JURIST report] that a convicted bank robber had to submit DNA samples to CODIS.