California Court: Police Can’t Take DNA From Arrestees

Chemistry Background

A California law known informally as the DNA Act requires that law enforcement take a DNA sample from every adult arrested for or charged with any felony. The sample extraction—via cheek swab—is to occur soon after arrest. (Cal. Penal Code §§ 296.1, 296.)

The U.S. Supreme Court reviewed a somewhat similar law in 2013, with a case called Maryland v. King. (133 S. Ct. 1958 (2013).) The high court decided that the cheek-swab collection of a suspect’s DNA after arrest for a “serious” offense was reasonable. It also okayed the analysis of the collected DNA.

“No, Thanks”

Earlier this month, a California appeals court broke from the Supreme Court’s King holding. (People v. Buza, No. A125542 (Cal. Ct. App. 2014).) The second division of the California First District Court of Appeal was faced with a case involving a man arrested for setting fire to a San Francisco police car. Some hours after his arrest, while the man was in county jail, a sheriff’s deputy asked him to provide the requisite DNA sample. Despite a warning that he’d face a misdemeanor charge for noncompliance, the defendant refused.

A jury convicted the man of all counts, including the promised misdemeanor for sample refusal. As part of the sentence, the judge ordered that he provide the DNA sample. (He eventually acquiesced.)

Rather than follow the U.S. Supreme Court’s lead, the California appeals court reversed the misdemeanor DNA-sample conviction. It didn’t base its decision on the Fourth Amendment to the U.S. Constitution, which was behind the King decision. Instead, it relied upon a similar search-and-seizure provision from the California constitution. (The court explained that the “search” in the DNA-sample setting involves two parts: the cheek swab itself and the subsequent use of the DNA.)

What’s the Difference?

The California court noted several distinctions between the DNA Act and the Maryland law involved in the King decision. The court explained that the Maryland statute did several things that its California counterpart didn’t, like:

  • allowing processing of a DNA sample only after a judicial officer has found probable cause to believe that the defendant is guilty
  • applying only to arrests for “serious crimes,” rather than all felonies, and
  • requiring automatic expungement of DNA data where the arrestee isn’t ultimately convicted of the relevant crime.

Despite those differences, though, the California Court didn’t simply find the King decision inapplicable. Instead, it used the state constitution (article I, section 13, to be exact) to find the DNA Act invalid.

The decision underscores the ability of state courts to interpret their own constitutions in ways that afford citizens greater rights. (“[T]he federal Constitution thus represents the floor for basic freedoms; the state constitution, the ceiling.” (Traylor v. State, 596 So. 2d 957 (Fla. 1992).)  It also leaves the future of the Golden State’s DNA Act somewhat uncertain—at least until the state supreme court chimes in.