[JURIST] The US Court of Appeals for the Ninth Circuit [official website] heard arguments Wednesday regarding the constitutionality of a voter-approved California law [Proposition 69, PDF] that requires police officers to take DNA samples of arrested persons suspected of committing a felony. Sitting en banc, the judges questioned California Attorney General Kamala Harris [official website], raising concerns [San Francisco Chronicle report] that the law may be an unconstitutional government invasion of individuals’ privacy. Harris retorted that the law contains safeguards against malicious use, including penalties for state officials who misuse DNA material. In February a three-judge panel of the Ninth Circuit ruled [opinion, PDF; JURIST report] that Proposition 69 does not violate Fourth Amendment [LII backgrounder] protections against unlawful searches and seizures. It is not yet clear when the full Ninth Circuit will issue a new ruling in the case, entitled Haskell v. Harris [materials]. The California Supreme Court [official website] is currently reviewing Proposition 69 in a separate case.

Collection of DNA from arrestees is controversial throughout the US, and courts have been split on the issue. In July US Supreme Court Chief Justice John Roberts [official profile] renewed his temporary stay [JURIST report] on a Maryland Court of Appeals [official website] ruling that police could not collect DNA from individuals arrested for violent crimes and burglaries. The appeals court struck down [JURIST report] the DNA collection law in April, finding a violation of the arrestee’s right to privacy. In January the Minnesota Supreme Court upheld a state statute requiring people convicted of crimes to submit a DNA sample, ruling that such a mandate does not violate the Fourth Amendment [JURIST report]. US Attorney General Eric Holder instructed federal prosecutors in November 2010 to use DNA evidence as much as possible [JURIST report] reversing the previous policy of the Bush administration. In May 2009 a federal court in California upheld the constitutionality of mandatory DNA collection [JURIST report] for all persons arrested or detained under federal authority. That same year a South Carolina law was upheld that requires convicted first degree sex offenders to submit to a DNA test [JURIST report] prior to their release.