Cal.1: Taking DNA from an arrestee violates the California Constitution; Maryland v. King distinguished

California’s Constitution and DNA statute is different than Maryland’s in Maryland v. King so taking DNA from an arrestee is unconstitutional. People v. Buza, 2014 Cal. App. LEXIS 1100 (1st Dist. December 3, 2014):

The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as amended (Pen. Code, § 295 et seq.) (the DNA Act),1 which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense “immediately following arrest, or during the booking … process or as soon as administratively practicable after arrest ….” (§§ 296.1, subd. (a)(1)(A); 296, subd. (a)(2)(C).) In a prior opinion, we held that the seizure of appellant’s DNA shortly after his arrest, at a time when he was entitled to the presumption of innocence and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures. (People v. Buza, A125542, Aug. 4, 2011.) The case now returns to us with directions from the California Supreme Court to vacate our prior decision and reconsider the matter in light of Maryland v. King (2013) ___ U.S. ___ [133 S.Ct. 1958] (King).

We have done so, and again reverse the judgment of conviction under the DNA Act. As we will explain, because of significant differences between the California DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.

. . .

III. The DNA Act’s Arrestee Provisions Violate the California Constitution

Like the Fourth Amendment, article I, section 13, provides, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” Despite the all but identical language of the two constitutional provisions, the California Supreme Court has not always interpreted them as coextensive. Rather, the court has held that in this area, as in other constitutional analysis, the California Constitution is “a document of independent force.” (People v. Brisendine (1975) 13 Cal.3d 528, 549-550 (Brisendine); see, People v. Fields (1996) 13 Cal.4th 289, 298 [double jeopardy]; American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 325-326 (American Academy) [privacy].) Further, the California Supreme Court has held that article I, section 13 imposes a “‘more exacting standard for cases arising within this state’” than does the Fourth Amendment. (People v. Ruggles (1985) 39 Cal.3d 1, 11-12 (Ruggles), quoting Brisendine, at p. 545.)

While our Supreme Court has recognized a “general principle or policy of deference to United States Supreme Court decisions” in interpreting provisions of the California Constitution that are textually parallel to those of the federal Constitution (Raven, supra, 52 Cal.3d at p. 353), “even when the terms of the California Constitution are textually identical to those of the federal Constitution, the proper interpretation of the state constitutional provision is not invariably identical to the federal courts’ interpretation of the corresponding provision contained in the federal Constitution. (See, e.g., Raven[, at pp,], 352-354; Brisendine, supra, 13 Cal. 3d [at pp.] 548-551.)” (American Academy, supra, 16 Cal.4th at pp. 325-326.) Deference is not required when “‘cogent reasons,’ ‘independent state interests,’ or ‘strong countervailing circumstances’ that might lead our courts to construe similar state constitutional language differently from the federal approach.” (Raven, at p. 353.) And where California authority establishes that the California Constitution provides greater protection, the United States Supreme Court’s interpretation of a textually parallel provision of the federal Constitution does not require our courts to weaken rights under the state Constitution. (American Academy, at p. 328.) The California Supreme Court “sits ‘as a court of last resort [in interpreting state constitutional guaranties], subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter.’” (Raven, at p. 354, quoting People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4.)

This point is made explicit in our state Constitution: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” (Cal. Const., art. I, § 24.) Added to the Constitution by initiative in 1974, this provision did not create a new principle but, rather, “made explicit a preexisting fundamental principle of constitutional jurisprudence (see Ballot Pamp., Proposed Stats. and Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 5, 1974), analysis by Legislative Analyst, p. 26)[.]” (Raven, supra, 52 Cal.3d at p. 354; Brisendine, supra, 13 Cal.3d at p. 551 and fn. 19.)

Indeed, as our Supreme Court has explained, the independence of state Constitutions is fundamental to principles of federalism and demonstrated by history. (Brisendine, supra, 13 Cal.3d at pp. 549-550.) “It is a fiction too long accepted that provisions in state Constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state Constitutions, rather than the reverse.” (Id. at p. 550; see People v. Monge (1997) 16 Cal.4th 826, 872 (dis. opn. of Werdegar, J.).) “The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials.” (Brisendine, at p. 550.) Thus the Brisendine court stated that “in determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution,” it was “simply reaffirming a basic principle of federalism—that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.” (Id., at pp. 550-551.)

Our Supreme Court has enumerated several factors to consider in deciding whether a provision of the state Constitution should be construed differently from a parallel provision of the federal Constitution. In People v. Teresinski (1982) 30 Cal.3d 822, the court set out four reasons for deciding not to depart from the United States Supreme Court’s construction of the federal free speech clause: “First, ‘nothing in the language or history of the California’ constitutional provision in question ‘suggest[ed] that the issue before us should be resolved differently than under’ the analogous federal constitutional ‘provision.’ ([Teresinski], at p. 836.) Second, the decision in question ‘did not overrule past precedent or limit previously established rights under’ the United States Constitution. ([Teresinski], at p. 836.) Third, the decision ‘was unanimous, and ha[d] not inspired extensive criticism.’ (Id. at pp. 836-837.) Fourth, the decision, ‘if followed by the courts of this state, would not overturn established California doctrine affording greater rights’ in the particular area. (Id. at p. 837.)” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 510-511.)

These factors all militate against applying King’s analysis in the present case.

First, as we have said, the California Supreme Court has historically construed article I, section 13, of the California Constitution as imposing a “more exacting standard” than the Fourth Amendment in general, and specifically with respect to the scope of permissible searches of arrestees. (Brisendine, supra, 13 Cal.3d at p. 545; People v. Norman (1975) 14 Cal.3d 929, 938-939; Ruggles, supra, 39 Cal.3d at pp. 11-12.) Second, while King—being a case of first impression—did not overrule past precedent or limit previously established rights, as Justice Scalia forcefully described, the majority opinion deviated sharply from prior Fourth Amendment jurisprudence on suspicionless searches and searches incident to arrest. Third, far from being unanimous, King was decided by a narrow majority of five justices, with four in dissent. Finally, although following King would not overturn established California doctrine affording greater rights—again, King being a case of first impression—it would run counter to our Supreme Court’s prior application of a “higher standard of reasonableness under article I, section 13″ (Brisendine, at p. 552), especially in the area of arrestee searches, and to California’s express constitutional protection of informational privacy.

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